Wrongful Convictions

Raye of Hope

Clemency Petition



Mr. Gilson, his past and present counsel, his mother Sharon Gilson (Wilson) and stepfather Floyd Wilson, his relatives and friends respectfully request this Board to recommend clemency so he can make his case to the Governor.  Clemency is an act of mercy and grace.  Typically, it is a matter of this Board making a final assessment of the equities involved after considering all matters in full that the jury may not have heard, that may never have been adequately presented, or that the courts are not designed to remedy.  Mr. Gilson comes before the Board humbly, making no claim of entitlement to the Board’s grace.  He recognizes the tragic nature of this case involving the death of an 8 year-old boy.  He recognizes the seriousness of his offenses.  There are, nevertheless, a number of considerations this Board may feel support a positive recommendation to the Governor. 

Mr. Gilson requests mercy based on 3 chief considerations.   First, due to the unique circumstances of his case, Mr. Gilson faces a pending execution even though it is unclear what conduct he is being executed for.  Even his jurors say they did not know who inflicted the abuse causing Shane’s death.  This was expressed both in their divided verdict and in recent Affidavits.  See Appx., pp. 132-36.

Second, it is patently unfair that co-defendant Bertha Jean Coffman receive a life sentence while Don Gilson is executed, when the overwhelming evidence points to Ms. Coffman as the “committer” of the fatal abuse and Don as the “permitter.”  This result is particularly distressing to certain jurors, who denounce their death verdict in light of Ms. Coffman’s treatment.  See Appx., pp. 132, 135.  Indeed, two jurors state they would be “relieved” if Mr. Gilson’s death sentence was commuted to life.  Id.

Third, Mr. Gilson’s involvement in the offense is likely attributable in great part to his profound brain damage suffered from a near fatal 1993 auto accident.  While Mr. Gilson concedes he sometimes acted shamefully in the past, his behavior should be understood in the context of his mental incapacitation stemming from the extensive injuries to his brain.  The accident resulted in loss of 25% to 33% of the functioning of his brain.  A mentally impaired Mr. Gilson walked into a deeply dysfunctional situation which he was simply not equipped to handle.  The mitigating evidence of his permanent brain impairment was never presented to his sentencing jury. 

There are a few additional considerations this Board is asked to bear in mind.  Mr. Gilson is sorry for the death of Shane Coffman and for the harm done to all of the Coffman children.  Though he may at times, when expressing himself, produce a flat affect due to his brain impairment, Mr. Gilson is indeed remorseful for what happened to Shane and the other children. 

Also, aside from the instant offense, Mr. Gilson has no criminal record.   Until he got himself involved with Ms. Coffman, his record was perfectly clean.  Further, he has been a model prisoner throughout his years at OSP.  He has not been the subject of a single disciplinary action in his over 13 years time served on death row.

I.       The Uniqueness of the Split Verdict and Uncertainty

of Mr. Gilson’s Wrongful Conduct Supports Clemency


Donald Gilson was convicted in the District Court for Cleveland County in 1998 under a first degree capital murder statute allowing for imposition of the death penalty based on either “committing” or “permitting” child abuse murder.  The  Tenth Circuit Court of Appeals, upon review of death penalty law in the other 49 states, referred to Oklahoma’s statute as “unique.”  The statutory scheme is unmatched in that it allows for imposition of the death penalty upon one who “permits” another to abuse a child where he knows or “reasonably should know” that the abuse is placing the child in danger.  The offense is a general intent crime, having no requirement that the defendant intend any particular result from his actions. 

Throughout this country’s history, “permitting” another to commit murder has never been an offense subject to capital punishment.  Indeed, absent a legal duty, it has never been any crime at all.  In Oklahoma, under statutory definitions, the permitter need only co-habitate with the actual abuser to be criminally liable.  Here, Mr. Gilson was the boyfriend of the biological mother, Bertha Jean Coffman.  Mr. Gilson was not the father with legal authority over the children.  Ms. Coffman and her children moved into Mr. Gilson’s trailer, whilst she was hiding from DHS.  Only 7 months before, DHS had removed Ms. Coffman’s children from her custody, but subsequently returned them. 

At Mr. Gilson’s trial, the jury was provided a special verdict form requesting they indicate their underlying theory of guilt - i.e., whether Mr. Gilson was being found guilty of “committing,” or rather “permitting,” the abuse that resulted in 8 year-old Shane Coffman’s death.  The Oklahoma Court of Criminal Appeals noted this verdict form improperly failed to follow Oklahoma’s Uniform Jury Instructions, and admonished trial courts to henceforth adhere to the approved forms.  Using this improper form, the jury returned a split verdict as to whether Mr. Gilson had committed the child abuse in question or permitted Ms. Coffman to commit the abuse.

Mr. Gilson is in the unprecedented circumstance of facing execution even though some of his jury believed he simply “permitted” another to commit abuse resulting in death.  Mr. Gilson has stated repeatedly in legal briefing, without contest, that if carried forward he will be the first person executed in the 233 year history of this country for an offense premised on “permitting.”

Mr. Gilson was ultimately denied relief in the courts by the slimmest of margins.  His appeal was denied by the Oklahoma Court of Criminal Appeals; however, Judge Chapel dissented vigorously.   Judge Chapel would have reversed the verdicts based on 5 separate constitutional grounds.  Appx., pp. 137-40.  On federal appeal to the Tenth Circuit Court of Appeals, the decision denying relief rested on a 2 to 1 vote, with the Chief Judge, Robert Henry, filing a dissenting opinion.   Appx., pp. 141-46.  Gilson filed a request for review of his case by the entire panel of active judges of the Tenth Circuit. His request for rearing en banc was denied, based on a 6 to 6 equally divided vote, with the tie operating in favoring the non-moving party (the State).

A.      The Arrests and Statements to Police

The body of Shane Coffman was discovered on February 9, 1996.   Bertha Jean Coffman and Don Gilson were taken into custody that night.  The Cleveland County Sheriffs Office and OSBI interrogated the two separately. 

1.       Ms. Coffman Confesses to Killing her Son

Following the interrogations completed in the night and early morning hours of February 9th and 10th, Cliff Winkler, a Detective with the Cleveland County Sheriffs Department, prepared a 12-page handwritten report.  His report is telling.  It states that OSBI Agents Cordry and Wikinson advises Agent Johnson and me that B.J. Coffman confessed to beating Shane repeatedly on August 15, 1995 and struggling with him in the bath tub at Gilsons mobile home.  Appx., p. ** (emphasis added). Detective Winkler reports:

B.J. Coffman stated that Shane was made to stand nude against the living room wall and if he tried to move she would hit him 4 or 5 times with a 1" x 4" board.  She stated that if he did not stop she would hit him 10 times.  According to Coffman this  beating went on periodically throughout the day, until Shane colapsed [sic].  She then placed him in the bath tub and ran cold water over him until he somewhat revived and tried to get up.  Coffman stated that each time Shane would try to get up she would push him back down, at which time as he stayed down she left the room.  Coffman stated that when she returned to the bathroom she saw that Shanes face had turned blue and there was white foam around his mouth and nose.  Coffman stated that she called Gilson into the bathroom and he performed C.P.R. attempting to revive Shane to no avail.


Id., p. 54.  Further telling is that the report notes Mr. Gilson was charged initially with only the unlawful disposal of a body.   At the end of the report, following consultation with prosecutor Rick Sitzman, Detective Winkler added the charge of Manslaughter I, but still not capital murder, to Mr. Gilsons book-in sheet.  Id., p. 57.

From February 9 through 12, 1996, law enforcement interviewed Ms. Coffman on three occasions.  Her statements on each of these occasions were recorded and transcribed.  Excerpts from these statements are attached hereto.  Appx., pp. 1-39.      Her three statements demonstrate she was the primary actor in the offense against her son Shane.  With respect to Don Gilson, Ms. Coffman spoke positively:

t    She indicated Don was a great guy, and stated how he loves my kids with all his heart, was so good to those kids, and was the best thing that ever happened to me.   Appx., pp. 11, 30, 37-38.


t    She stated how Don had worked day and night in December 1994 to straighten up her trailer so she could get her children back from DHS.  Appx., p. 11-12.


During her interviews, Ms. Coffman acknowledged she did all of the following:

t    fought with Shane all through the day he died.  Appx., pp. 13, 32-34.


t    yelled and hollered at Shane.  Id., pp. 3, 22.


t    taken a board to Shane that day, and spanked him hard.  Id., 4, 8.


t    taken him into the bathroom, removed his clothes, and put him in the tub.  Id., p. 23.    


t    run the water and put ice on Shanes chest to make him regain consciousness.  Id., pp. 5-6.


t    struggled with him in the tub, describing it as a frustrating fight.  Id.,  p. 15.


t    pushed him down in the tub four to five times.  Id., p. 32.  


t    fought with him when the shower doors busted off, when he fell face forward hitting his head on the faucet causing an immediate whelp and purple puffing around his right eye.  Id., pp. 15, 28-29.


t    first noticed Shane had stopped breathing.  Id., p. 7.


t    decided not to call  911, or anyone else, because she was afraid of losing her children to DHS again.  Id., pp. 4, 24-26.  


t    thought of and decided to place Shane in the freezer at her trailer.  Id., p. 26.  


t    created the story that Shane ran away and they found his body.  Id., p. 40. 


t    informed the local public school, right after Shanes death, that she decided to remove her children to begin home schooling them.  Id., p. 2.   

t    said Im the one who spanks them [the children] a little harder than what they need.  Id., p. 12.  


Most importantly, Ms. Coffmans first statement on February 9th culminated in a confession to having killed Shane.  Id., p. 18.  She indicated she lost control.  Id., pp. 13-20.  She said she did not mean to do it.  Id., p.19.  Her critical statements were as follows:

t    when confronted with you killed him didnt you?she responded I know.  Id., p. 18. 


t    she had to be responsible because she was the only one messing with Shane, doing things to him, that day.  Id., pp. 27, 34.


t    Im the only one that did it, yes.  Id., p. 34.   Nobody touched that boy but me that day.  Id., p. 35.   


t    I know it was wrong to do what I did to Shane, (Id., p. 30);  I know in my heart what I did was wrong (crying) .... and, I know what I did was terribly, terribly, wrong.  Id., p. 39. 


t    I know Ill get the death penalty (crying).  I know that.  Why?  Because I deserve that.  Id., p. 39.


B.      Ms. Coffman Enters a Plea Bargain  

Upon charges being filed, Ms. Coffman and Mr. Gilson entered into a joint defense agreement.  Months later, Ms. Coffman  moved to sever the parties. She broke the joint agreement and entered a plea of guilty.  Her plea was entered after the judge indicated he would not sentence Coffman to death.  Appx., pp. 78-79.  Her attorney, Robert Perrine, stated the arrangement was for Ms. Coffman to enter a “blind” guilty plea, in which she would appear to face all possible sentencing options.  “The true nature of our understanding, however” stated Mr. Perrine, “was that Judge Lucas would impose a sentence less than death in exchange for her guilty plea to Murder in the First-degree.”  See Appx., pp. 81-82.  Judge Lucas acknowledged by affidavit that, based on case facts he learned at a pretrial hearing, he had decided Ms. Coffman’s “was simply not a death penalty case.”  Appx., p. 80.   The arrangement for Ms. Coffman’s guilty plea was made while Mr. Gilson’s counsel, Debbie Maddox, was out of town in Stillwater on a different murder trial.

Ms. Coffman’s plea was entered August 20, 1997.  Her sentencing, however, was deferred until after she testified at Mr. Gilson’s trial.  She ultimately received a life without parole sentence.  Juror Nancy Hawkins states: 

I had the impression at the time of Mr. Gilson’s sentencing that Ms. Coffman would receive a death sentence.  Had I known she was going to receive life in prison, I would have voted the same for Mr. Gilson.  

Appx., p. 32, para. 4. 


Counsel for Mr. Gilson is aware that a multitude of family members and friends have forwarded letters to the Pardon and Parole  Board on his behalf.  All of these letters question the fairness of imposing the death penalty upon Mr. Gilson under the facts and circumstances presented.   It is hoped these letters supporting Mr. Gilson will be given consideration by the Board.

II.      The Comparative Disproportionality to Ms. Coffman’s Life Sentence Supports Clemency.


Mr. Gilson’s jury could not reach agreement on what criminal conduct he was guilty of having committed.  This is demonstrated by the  split verdict as to whether he was the committer or the permitter.  It is also demonstrated by a juror’s account of the trial.  See Appx., p. 135.  Juror Timothy Grizzle states that “me and most of the jurors felt we didn’t know whether Mr. Gilson or Bertha Jean Coffman caused Shane Coffman’s death.”  Id.

We are in the unheard of situation of not even knowing what conduct the State intends to sanction with the ultimate penalty of death.  Clearly, some jurors believed Mr. Gilson simply “permitted” the offense.   The offense of permitting required “willfulness.” Written instructions provided to the jury stated that “Willful is a willingness to commit the act or omission referred to, but does not require any intent to violate the law, or acquire any advantage.”   See also Carla Mullins, Guilty of Something:  Gilson v. State and the Death Penalty for Omission in Oklahoma,” 54 Okla.L.Rev. 647 (2001).  Appellate attorney Matthew Haire addresses for this panel the topic of the problematic features of application of Oklahoma’s capital child abuse murder statute in Mr. Gilson’s particular case.  See Appx., Section 3, Attached DVD of Matthew Haire. 

It was never established that Mr. Gilson ever intended to injure Shane Coffman.  Ms. Coffman attests to this herself.  Further, “permitting” was defined to mean “to authorize or allow for the care of a child by an individual when the person authorizing or allowing such care knows or reasonably should know that the child will be placed at the risk of abuse.”  Emphasis added.  Thus, to be found guilty of permitting, Mr. Gilson was not required to be aware any abuse was occurring.  The execution of Mr. Gilson would expand application of Oklahoma’s child abuse murder doctrine to the extreme.  This panel can recommend some modification in Mr. Gilson’s circumstances to avoid that extreme. 

Furthermore, Ms. Coffman, the more apparent committer of the offense, was given a life sentence.   Jurors who sentenced Mr. Gilson to death, and who did not know at the time that Ms. Coffman was going to receive a life sentence, now feel that Mr. Gilson’s death sentence is unfair.  See Appx., pp. 132-36.  One juror states her belief that Ms. Coffman, as the biological mother, had more responsibility than Mr. Gilson for her son’s death.  Appx., p. 132.  And some of the jurors state or otherwise indicate that had they known Ms. Coffman would receive a life sentence, they would have voted for the same for Mr. Gilson.  See, e.g.,  Appx., pp. 132, 135.  Importantly, it only takes the vote of a single juror in Oklahoma to mandate a life sentence for the defendant – i.e., death verdicts must be unanimous. 

Further support that Ms. Coffman was likely responsible for causing Shane’s death is the fact that neglect and abuse (both physical and sexual) of the Coffman children had been going on for a long, long time before Don Gilson entered the picture.  See Appx., pp. 58-65.  Ms. Coffman’s past boyfriend Russell Whitley, a pedophile, had sexually molested the Coffman children, boys and girls, on an ongoing basis from 1992 to 1994.  According to a 1994 DHS report, as well as other documents, the Coffman children were reportedly having sexual relations or otherwise sexually molesting each another.  See Appx., pp. 6-74.  This is the situation into which Mr. Gilson, with a severe mental handicap, entered.

At least four of Mr. Gilson’s jurors feel it is unfair that Don received the death penalty when Ms. Coffman received a life sentence.  See Appx., pp. 132-36.  Two jurors state they would be relieved if Mr. Gilson’s sentence was commuted.  Id.,  pp. 132, 135.  The jurors’ affidavits support Mr. Gilson’s respectful request for clemency.

III.    Mr. Gilson’s Permanent Brain Damage Sustained Prior to the Offense Supports Clemency

Don Gilson suffers from extensive, irrevocable brain damage.  This damage was sustained 1½ to 2 years prior to his forming a relationship with Ms. Coffman.  Expert evaluations and assessments of Mr. Gilson’s brain damage reveal mental deficits which are causally connected to his involvement in the instant circumstances offense and which landed him on Oklahoma’s death row.

The 1993 Auto Accident

On March 12, 1993, Mr. Gilson sustained near fatal injuries in a deadly auto accident.  He was temporarily paralyzed, and suffered prolonged unconsciousness.  Treating doctors doubted he would survive. 

The force of the impact caused severe head injuries, including multiple, extensive facial and cranial fractures.  Mr. Gilson’s skull was literally bashed.  He sustained frontal temporal skull fractures and multiple basilar skull fractures.   He also suffered contusions of the right frontal lobe and a portion of the left frontal lobe of his brain.  CT scans and MR images document this damage.

As stated by one expert, Mr. Gilson suffered “extremely severe frontal lobe and contre-coupe” injuries, resulting in permanent organic brain damage.  See Appx., p. 87.  Dr. Hopewell summarized the damage as a “classic pattern of diffuse frontal lobe and more severe right hemisphere damage resulting in severe executive and personality dysfunction.”  Id., p. 102.  Dr. Hopewell also observed minor contusive changes to the left frontal lobe, noting even “minor” injuries to such areas can have “major consequences in terms of functional changes.”  Id., p. 88.  He further noted Mr. Gilson’s brain had “bulged” through a bony defect at the right orbital roof.  Id.    In 1999 a radiologist evaluated the CAT scans and additional MRI scans that had been taken.  His evaluation supported Dr. Hopewell’s findings.  See Appx., pp. 105-07.  The Radiologist’s findings were substantial:

[S]evere brain trauma with involvement of approximately 40% of the volume of the right frontal lobe and 1/3 of the volume of right temporal lobes of the brain.  This is very significant in terms of damage to the brain and residual behavioral and other consequences resultant therefrom.


Id., p. 106. 

These expert findings have been verified most recently by Neuroradiologist  Linda Anne Hayman.  See Appx., pp. 110-13.  As reflected in her Affidavit, Dr. Hayman is experienced in review and analysis of radiological scans of the brain and assessment of neurological damage and injury to the brain.  Dr. Hayman concurs with the previous experts that Mr. GIlson has significant brain damage.

Effects of the brain damage on Gilson’s behavior

Without doubt, Don Gilson’s brain damage had repercussions on his personality and  behavior.  Dr. Hopewell described the effects as severe executive and personality dysfunction, stating “the result is decreased ability to self-regulate behavior or inhibit impulses - referred to as ‘disinhibition syndrome.’”  Appx., p. 95.  Thus, Mr. Gilson “will often act before thinking,” as seen in schizophrenics.  Id.  A third expert, Neurologist Jay Rosenblum, confirmed the existence of a direct causal relation between Gilson’s brain damage and his behavior at issue.  Appx., p. 109.     Dr. Rosenblum described Mr. Gilson’s damage, neurologically, as “very significant, and noted  serious concerns regarding “the temporal lobe ... which is intermittently involved with rage,” and “the frontal lobe [which] is intermittently involved with higher brain functions such as inhibition, memory, and judgment.”  Id. Dr. Rosenblum opined that with Mr. Gilson’s level of damage, “I would expect severe behavioral abnormalities.”  Id.

In partial contrast to the opinions of Drs. Hopewell and Rosenblum, a 1996 assessment by Psychologist Philip Murphy determined the effects of Mr. Gilson’s brain damage would likely cause him to be submissive.  Specifically, Dr. Murphy determined that “[t]he most significant finding from this testing was his level of interpersonal dependence or submissiveness.  This index was highly elevated above normal and would indicate that, especially in new or unusual circumstances, he would become very submissive to another person.”  Appx., p. 84.  Dr. Murphy further states that “[p]ersonality temperament assessment found that his personality is best described as withdrawn, anxious, dependent and submissively resigned.”  Id.

The effects described by Dr. Murphy would likely make Mr. Gilson more vulnerable  to anyone -- such as a distressed woman with six children whom she is unable to clothe, shelter, and feed -- striving to take advantage of him. 

          Dr. Hayman’s most recent evaluation of Mr. Gilson’s injuries sheds further light on the subject.  From reading Mr. Gilson’s CT and MRI scans Dr. Hayman is able not only to pinpoint precisely where damage to the brain has been sustained, but also determine the physiological and behavioral effects that invariably result therefrom.       Mr. Gilson clearly suffers permanent damage to various parts of his brain.  Appx., p. 111.  Most notably, he has significant damage to two major circuits running through the frontal lobe regions.   Id., p. 112.  Damage to each one of these pathways carries with it a distinct set of functional deficits, i.e. - specific deleterious effects on behavior.  Thus, in Dr. Hayman’s opinion, Mr. Gilson would be expected to exhibit multiple, mixed mental deficits.  These deficits range from poor organizational skills, inability to plan ahead, immobility, lack of motivation, inability to change tasks, and deficits in abstract thinking -- to disinhibition, poor impulse control, and lack of feelings of empathy toward others.   Id., p. 112-13. 

Dr. Hayman’s opinion as to expected functional and behavioral effects is borne out by the observations of numerous of Mr. Gilson’s family members and friends.   These acquaintances have attested to the brain injuries’ effects on his behavior post-accident.  See Appx., pp. 119-131.  Mr. Gilson’s mother observed “definite changes in Donald’s behavior and thinking.”  Id., p. 119.  He became withdrawn, developed new and peculiar habits, had memory loss and suffered repeated headaches.  Id.  His hygiene deteriorated and he was less aware of his surroundings.  Id., p. 120.  He sometimes seemed to be off in never-never land.” Id., 128.  Many other acquaintances describe Mr. Gilson has having become more withdrawn and less personable and sociable.  He no longer carried on conversations with friends like he had in the past.   His former employer stated Mr. Gilson, after the accident, became “more impulsive and his emotions ran higher. Id., p. 123.  

The changes in Mr. Gilson’s personality and behavior are also described by numerous family members and friends in the many letters sent to this Board.   Most of these descriptions are consistent with the experts’ respective opinion.  Again, it is hoped that these letters will be given consideration.  

Regardless of his role in Shane Coffman’s death, Mr. Gilson’s brain damage contributed to his involvement with Ms. Coffman and his behavior with the Coffman family.   As his stepfather and others have stated, absent the brain impairment Don most likely would never have gotten himself entangled with a woman such as Ms. Coffman, and her children, in the first place.  Id., p. 121.  Moreover, with his depleted mental capacity, Mr. Gilson found himself enmeshed in a deeply dysfunctional family replete with a long history of not only neglect but also emotional, physical, and sexual abuse - a situation which most of us are not equipped, and indeed require specialized training and knowledge, to handle.  Though well-meaning, with intentions to help fix Ms. Coffman’s problems and provide support for her and her children, Mr. Gilson situated himself into a  predicament which he, especially with his mental deficits, was simply not equipped to handle.

Mr. Gilson’s jury never heard the evidence of his extensive brain damage.   The jury should have learned of this evidence at Mr. Gilson’s mitigation proceedings.  Juror Frederick Penrose states had this evidence been presented,  “I would certainly have considered it.”  See Appx., p. 133.  Juror Penrose further states he would have been “influenced”  by “evidence of Mr. Gilson’s head injuries.”  Id., p. 133-34.  He memorably discusses how head injuries and the behavioral consequences thereof is of special relevance to him, in that his father suffered a serious head injury in World War I, and returned home from the war a different person.  Id.   

In Mr. Gilson’s case, because his trial counsel failed him, his jurors never learned about his near fatal auto accident and the resultant extensive brain damage which has effected his life, personality, and behavior.  This powerful mitigating evidence goes a long way in explaining Mr. Gilson’s instant offense. 

IV.    Conclusion

Mr. Gilson deserves to be punished for his wrongful actions and poor decision-making.  He has been punished for this conduct and will continue to be.

Mr. Gilson presents an appropriate case for mercy and grace.  His sentence of death is an excessive penalty in light of the circumstances presented.  No one knows with any reasonable clarity what role Mr. Gilson played in the death of Shane Coffman.  The evidence, inclusive of a confession, points strongly to Ms. Coffman as the one who actually committed the offense.  Yet Ms. Coffman received a life sentence.  Further, Mr. Gilson would in all likelihood have never found himself where he is today, on death row, were it not for his brain injuries, which reduced him to a significantly impaired level of functioning.  For all of this, Mr. Gilson does not deserve to be put to death. 

We ask that this Board be merciful and recommend clemency for Don Gilson, allowing those of us who care about Don to make our plea to the Governor.