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Barring a last-minute glitch, Gary Newberry will have his first official taste of freedom in the next two weeks. With the blessing of the State Board of Pardons & Paroles, he’ll leave behind 11 years in state prison and several months in a Savannah, Ga., diversional center, and head for the Atlanta area, for his new wife and a new life. What he won’t leave behind, however, is the label that haunts him: murderer. Newberry was convicted in 1989 for the shooting death of Mylo Thomas, son of a prominent Toccoa educator. Newberry has never denied he was there when Thomas was shot, but he does deny pulling the trigger. Thomas shot himself, and whether it was by accident or deliberate, no one will ever know, Newberry insists. “It just happened.” A Stephens County jury called it murder, however, and Newberry was sentenced to life in prison. But eight years later, medical examiner Joseph L. Burton had another name for Thomas’ death: a suicide or accident. Burton, now a private consultant, was then medical examiner for several metro Atlanta counties. Burton’s assessment of the case, along with the help of a lawyer from the Center for Prisoners’ Legal Assistance, won Newberry a rare out-of-time hearing with the Parole Board. But while he had hoped the board would pardon and exonerate him, it did not. Instead, after a nearly two-year wait, he was approved for parole, pending completion of a term at the Savannah diversion center. The board never addressed the issue of Newberry’s guilt or innocence. Newberry says he’s grateful for the parole. In an interview last week at the hospital where he works in Savannah, Newberry says, “I believe I have the potential and ability to become a great voice in society, a very positive one,” he says. Still, he says, parole is not enough to bring him peace. “I don’t deserve to be on it because I didn’t commit a crime.” He says he’s not bitter at anyone, but he does have a “distaste for injustice.” EASY VINDICATION UNLIKELY And he intends to clear his name. That’s not likely to be easy, according to those lawyers familiar with Newberry’s case. He has two options, they say. He can file a petition for a writ of habeas corpus as long as he is still on parole. Or he can file an extraordinary motion for a new trial in the county where he was convicted. Attorney Bruce S. Harvey, whose office has Newberry’s file but has yet to get involved officially, says exoneration is very difficult, “even when you have DNA that positively excludes someone.” In this case, Harvey says, there’s scientific evidence but it’s scientific opinion evidence, specifically Burton’s opinion. Newberry will get no help from the prosecutor who sent him to prison. Stephens County District Attorney Michael Crawford says he would have no problem helping clear someone he believed had been wrongfully convicted. In fact, he says, he did just that back in the early 1990s. Frank Collins, a Blairsville, Ga., man sentenced to prison for burglary, convinced him, Crawford says, that he had been framed with fabricated evidence by Union County Sheriff Tommy Duncan. Crawford says he and Collins went to federal authorities, who later successfully prosecuted Duncan for fabricating evidence and ordering illegal wiretaps. Newberry, the prosecutor says, is a different story. “I had no doubt of his guilt then, and I have no doubt now.” Crawford says Burton’s opinion has zero credibility with him. “They’re going to have to do something more than Joe Burton to convince me.” Newberry, a high school dropout who grew up in the Albany area, says he had proclaimed his innocence over the years to anyone who would listen. “I told it to everyone. I cried so much. It was all I could talk about, but I could never get any help,” he says. “I detested being called a murderer … even now I detest it.” He admits he was in trouble as a juvenile, charged a number of times with theft. He also says at the time of the Toccoa shooting, he was a small-time dealer of drugs, lured, he says, by the prospect of easy money. Newberry and Thomas were riding in a car from Toccoa to Gainesville with three others, all of whom initially told police that Thomas had been playing with a .38-revolver and shot himself. But those stories changed after interrogations, and after threats of prosecution. The three witnesses began to blame Newberry. Newberry also took and failed a polygraph test, which was introduced into evidence at trial by stipulation. Newberry says he didn’t know what he was signing when he agreed that the test results could be used at trial. It didn’t help, he says, that he panicked after Thomas shot himself and helped dump the body out of the car and left the scene. But he joined the other three back in Toccoa, he says, and told police what had happened, never expecting to be charged with murder. At his trial, he says, his lawyer put up no evidence in his defense, nor did he cross-examine Warren Tillman, the medical examiner who conducted the autopsy of Thomas’ body. Tillman, according to Burton’s testimony to the Parole Board, never drew a conclusion as to whether the death was a homicide or suicide. The autopsy report was never introduced into evidence at trial. Newberry says he spent years trying to get a copy of that report so he could challenge his conviction. He also spent years writing letters. He estimates he wrote about 2,500 letters while he was in prison, adding that he would sell his sandwiches to other inmates to get money for stamps. He wrote to lawyers like Johnnie Cochran and Barry Scheck. He wrote to government officials, including President Bill Clinton, then-Gov. Zell Miller, Sen. Max Cleland, the late Sen. Paul Coverdell, and Attorney General Janet Reno. He tried writing celebrities such as the late John F. Kennedy Jr., actress Jane Fonda, actor Eddie Murphy, talk show hosts Oprah Winfrey and Montel Williams, and television journalists Barbara Walters and Diane Sawyer. He wrote to Northwestern University journalism professor David Protess, whose students have cleared several wrongfully convicted prisoners. Guilty prisoners, he says, are better able to find peace. But, he adds, prison is “more horrifying for the man that is in there that is innocent than it is anyone else.” Newberry was at Calhoun State Prison when he saw a copy of a newspaper article about Burton’s involvement in reopening an investigation into the death of a baby 25 years earlier. As a result, a new defendant, Jan Barry Sandlin, was charged with murder and subsequently convicted. Newberry says he penned a hurried letter to Burton. Three months later, Burton was writing to then-Gov. Miller. In that Jan. 26, 1998, letter Burton said he was so struck by the forensic evidence in the case, he brought in three other medical examiners. They all concluded that the evidence was consistent with a self-inflicted injury. Because none of Thomas’ teeth had been shattered in the blast, they concluded that he must have opened his mouth to receive the barrel of the gun. And, the medical examiners found, the angle of the bullet’s path through the head, given where Newberry was sitting in the vehicle, was inconsistent with Newberry having been the shooter. Burton told the Parole Board during a Feb. 4, 1999, hearing on Newberry’s case, that “I feel so strong about this case that if the board could find a reputable pathologist anywhere in the nation who says that this is more consistent with a homicide than a self-inflicted wound, then I will resign all of my positions the day that you find such a person.” Newberry calls that a “very brave statement to make, especially for someone he didn’t know. For him to care so much about justice and truth, about his oath. I never had anyone in my life stand up for me like that.” It would be 11 months after that hearing, and nearly two years after Burton’s letter, before any word came from the parole board. Newberry’s appeal to the board was handled by Roger A. Baruch, a lawyer with the Center for Prisoners’ Legal Assistance. Baruch says he thought taking matters to the board would be quicker than going through the courts on a habeas petition. In the meantime, Newberry had struck up a regular correspondence with a forensic investigator on Burton’s staff in the DeKalb Medical Examiner’s Office — Jim Mabe, a former homicide detective. Burton had assigned Newberry’s case to Mabe, who in turn obtained the court transcripts and autopsy report on Thomas’ death. Mabe first wrote Newberry in June 1998, introducing himself as a former policeman whose job was “to put the bad guy in jail.” Mabe wrote that he didn’t believe Newberry’s letter at first, but added, “The more I checked into your outcry of innocence, the more I believed you were, in fact, innocent.” Newberry says Mabe helped get him through the last months in prison. “He would write and demand I be a man and face the wait. He has been extraordinary.” Mabe, in an interview, says the only thing he can do for Newberry now is continue to present the forensic evidence as he found it. Newberry’s resolve to clear his name, Mabe says, makes him “even more convinced of his innocence.” But Mabe, now an administrative operations manager at the DeKalb Medical Examiner’s Office, says he also would tell Newberry not to worry about what others think. “You know you didn’t do it. Get on with your life,” he says. “Don’t pursue it to the point where you become angry and go back to jail.” Burton did not return a call for comment.

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