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Opinion | A Supreme Court work of fiction

The facts of the Greg Gunn killing are well established — unless you’re an Alabama Supreme Court justice.

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The Alabama Supreme Court is into fiction writing. 

Maybe this trek was inevitable, given its disregard for the truth and facts in so many of the opinions issued by the high court, but still, it’s somewhat surprising to see it. To see, for example, a couple of justices from the state’s highest court essentially adopt a narrative espoused by a man convicted of manslaughter and present it in writing – as part of an opinion – as if it were factual. 

But that’s just what Justice Jay Mitchell has done. And what Justice Tommy Bryan appears to agree with. 

They did so as the court upheld the manslaughter conviction of former Montgomery Police officer Aaron Cody Smith. 

Smith was finally sent to prison last year for the 2016 killing of Greg Gunn, an unarmed Black man. 

That was a long time ago, so let me remind you of the details. And, oh, by the way, unlike our esteemed justices, I was outside of Gunn’s home the morning after he was killed. I talked to his family and his neighbors. I was at every court hearing leading up to the trial. I’ve spoken to the prosecutors. I’ve spoken to the defense attorneys. I’ve heard the evidence from both sides. 

Gunn was walking home from a late-night poker game at a neighbor’s house when he was stopped by Smith, who had no probable cause to stop him. Smith told Gunn to put his hands on the hood of the car and he began a search. Smith bumped something in Gunn’s jacket pocket (later found to be a cell phone) and believed it could possibly be a gun. 

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At that point, the intensity of things went up. And Gunn took off. Smith chased him and tackled him in the street. Gunn broke free and ran again. Smith deployed his Taser, but to no effect. (A state forensic pathologist believed that Gunn’s thick sweatshirt and two undershirts likely stopped the taser barbs. Markings from the barbs were found in Gunn’s outer sweatshirt.)

Gunn kept running away. Not fighting. Not shooting. Not threatening. Running. 

Smith kept chasing. He hit Gunn with his metal baton. Gunn went down, but popped up and continued running. 

Gunn reached the door of his neighbor’s home and began pounding on it. Screaming for help. Telling the man inside that the cops were trying to kill him. (I know this because I spoke to the man and his daughter, who were both inside. They called police … on the police.)

Just off to the side of that porch, only steps away from the home he shared with his mother, Gunn was shot five times by Smith. A forensic pathologist who examined Gunn afterwards said the wounds appeared to show that Gunn was in a defensive position when he was shot. 

That’s the story. 

But in a decision filed earlier this month, after concurring with the decision and tossing a longtime Montgomery attorney under the bus, Mitchell pens a work of utter fiction as he describes, allegedly relying upon the Court of Criminal Appeals’ opinion, a heroic officer who had no choice but to shoot a madman who was trying to kill him with a painter’s pole. 

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In Mitchell’s version, Smith was told to “stop anything that moves” by his superiors at MPD – an assertion that, even if true, wouldn’t excuse an officer of the law from ignoring basic constitutional rights or abusing his power as an officer. 

In his interview with an investigator from the Alabama Bureau of Investigations after the shooting, Smith admitted readily that he had no probable cause to stop Gunn, had no probable cause to chase him when he ran, had no probable cause to use his Taser or baton on him. 

But, you know, maybe such a thing doesn’t matter to a Supreme Court justice. 

Also, Mitchell writes that Smith had been given the directive to “stop anything” because of a high number of property crimes during Smith’s late-night shift. Even that is wrong. While it’s true that Gunn’s neighborhood had experienced a high number of property crimes, very few of those were occurring at night. Most were happening during the day, when homes were empty. 

Let’s also keep in mind that there would be no argument over any of this had Smith turned on his bodycam or hit his cruiser’s lights – standard procedure for a stop that triggers the front camera – so video of the incident was available. 

But none of that matters to Mitchell, who has written Smith’s version of events as though they were the absolute truth. Right down to quotes – he’s got quotes in here allegedly said by the victim as told by the convicted killer. 

In an Alabama Supreme Court opinion, Mitchell has included this alleged quote from Gunn: “F–k your Taser, Bitch.” 

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It is disgusting. 

But it proves, without a shadow of a doubt, that all of the Black Lives Matter and George Floyd protests were necessary. That they weren’t enough. That there’s still a whole mountain to climb. 

Because here we are nearly seven years after Gunn’s death – after prosecutors and DAs and judges and jurors and appeals court judges have gone over and over and over this case, argued and debated and parsed every sentence. After motion after motion after motion. After hearing after hearing after hearing. 

And it’s still not enough.

Cops investigated and arrested Aaron Cody Smith. A district attorney issued his arrest warrant. A grand jury indicted him. A judge handpicked by the Alabama Supreme Court presided over his trial and issued his sentence. A jury of 12 people — most of them white and from a county miles away from Montgomery — heard his case and convicted him. 

And still – STILL – two Supreme Court justices are going to bat for the white cop who shot the Black man. 

They should feel shame, if there were any left.

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Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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