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Episode 6: Deven was afraid for her life the night she shot John, but the court denied her ability to use Alabama’s Stand Your Ground Law in her defense. Deven is then faced with the reality of a jury trial, limited defense options and more questions than answers.

Resources:

• If you or someone you know is experiencing domestic abuse, use a safe computer and contact the National Domestic Violence Hotline at www.thehotline.org or call 1-800-799-7233. You can also search for a local domestic violence shelter at www.domesticshelters.org/.

• If you have experienced sexual assault and need support, visit the Rape, Abuse & Incest National Network (RAINN) at www.rainn.org or call 1-800-656-HOPE

• Have questions about consent? Take a look at this guide from RAINN at www.rainn.org/articles/what-is-consent

• Learn more about criminalized survival https://survivedandpunished.org/

This series is created with Evoke Media, a woman-founded company devoted to harnessing the power of storytelling to drive social change. https://weareevokemedia.com

This series is presented by Marguerite Casey Foundation. MCF supports leaders who work to shift the balance of power in their communities toward working people and families, and who have the vision and capacity for building a truly representative economy. Learn more at caseygrants.org or visit on social media @caseygrants.

Follow host Liz Flock on Twitter @lizflock. For more stories of women and self-defense, check out her book “The Furies” from Harper Books, available for pre-order now. https://www.harpercollins.com/products/the-furies-elizabeth-flock

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Transcript

SPEAKERS

Sheila, Eric, Mariame Kaba, Liz Flock, System, Joan, Rick, Mike, Judge, Kristen, Deven, Dan Mcbrayer, Dan, Kyra

Liz Flock  00:56

This episode contains depictions of domestic abuse and sexual assault.

 

System  01:02

All phone calls are subject to monitoring and recording. You have three minutes available for this call.

 

Sheila  01:12

Hello, how are you? I can hardly hear you. They’re not telling us anything or letting us know what’s going on or what went down or anything at all.

 

Liz Flock  01:30

Deven is talking to John’s aunt Sheila. It’s been three long sobering days since Deven was taken to Shelby County Jail, a squat tan brick building in Colombiana, Alabama that can hold several 100 inmates. Deven thinks it looks like a fortress. Most of the other women are in pods together but Deven has been in a cell alone on Mental Health Watch. She has stitches in her ear to facial fractures and her nose won’t stop bleeding. She needs help but instead she is by herself and her bare cell where she sleeps on a thin mat on top of a brick slab. She keeps thinking about her daughter. And what happened. This is the first time Sheila will hear Deven’s side of the story. She knows Deven shot John, but not much more than that. She’s telling Sheila about her injuries.

 

Deven  02:23

I had to go to the hospital […] are pretty bad.

 

Sheila  02:34

Oh my goodness.

 

Liz Flock  02:37

Tried to kill me. Deven says.

 

Sheila  02:39

Well, that’s what Henry said. He said it had to be really bad and she had to be scared to death to do this.

 

Liz Flock  02:46

And another call Sheila assures Deven that she and John’s dad Henry understand.

 

Sheila  02:53

Me and Henry have talked about it and unless you are afraid for your life. He would have never done that that’s not need to do something like that not enough.

 

Liz Flock  03:08

Deven sounds relieved that they see it her way that she had to do it.

 

Sheila  03:12

No, we’re not mad at you. We are not mad at you at all. Had we known that this was going on? We would have tried to help you and get you out from over there. But you didn’t let us know that.

 

Liz Flock  03:25

Sheila tells Deven that Alabama’s Child Protective Services took her daughter after her arrest. Deven can’t believe it. She says she had spoken to the department directly and asked for she led to get custody until her father could get down to Alabama. Deven asked Sheila to call her family and friends who she’s barely talked to since leaving New York ever since John isolated her from them and took away her phone. When everyone hears what’s happened, they immediately put money on her books for phone calls and emails and commissary. I listened to a few of these calls and it’s clear everyone missed her a lot.

 

Deven  04:01

Hello?

 

Kyra  04:03

Hello, oh my God […] yeah, I only have.

 

Deven  04:11

Oh, I’ve been searching for you for like five years.

 

Liz Flock  04:15

That’s Kyra Elliot, Devon’s best friend from high school. Kyra spent years looking for Deven. And at some point, she started to wonder if Deven was dead.

 

Kyra  04:26

I am so glad you’re okay. I’m really not gonna like it was long story short, I just had to defend myself and I got my assay and so I had to shoot my boyfriend, I got charged with murder and […]

 

Liz Flock  04:42

Deven has been charged with murder and a murder conviction and Alabama can lead to a life sentence. So yeah, she’s really not okay.

 

Liz Flock  04:57

This is Blind Plea and I’m your host Liz Flock.

 

Liz Flock  05:11

As Deven spent her first year in jail, adjusting to life behind bars and reconnecting with friends and family, she also obtained a lawyer who advised her to make a stand your ground claim. When the first Stand Your Ground law was passed in 2005 in Florida, it seemed like it could help domestic abuse survivors like Deven, Stand Your Ground if someone attacked you, you no longer had to run away, you could stand your ground. As long as you were in a place you lawfully had the right to be whether you were out in public or in your home, as long as you feared for your life. Dozens of states now have Stand Your Ground laws, including Alabama. But advocates say those laws haven’t been that helpful for women. Because they make a bunch of masculine assumptions like that it’s a one off fight between two people of equal strength. Like say two men who got into it at a bar, not a woman who has faced sustained abuse over the years. And critics say stand your ground was made with a very particular circumstance in mind, a white man defending his property. So it seemed like Deven didn’t stand a chance. But at this point, Stand Your Ground claim was her best option a bad option, but her only option, her only chance of freedom before a potential trial. If Deven won her Stand Your Ground hearing she wouldn’t even have to go to trial. She balked free that very day.

 

System  06:41

All phone calls are subject to monitoring and recording.

 

Deven  06:45

Hi, Daddy.

 

Joan  06:47

Hi, sweetie, how you doing?

 

Deven  06:48

I’m alright, I talked to my […]

 

Joan  06:52

Okay, what was the story?

 

Deven  06:55

Well, right now, the as the case stands, like he’s, you think that will be really like a really good case for our stand your ground. Kind of like self defense basically.

 

Liz Flock  07:09

Stand Your Ground laws were seared into public memory back in 2012. When they came up during the case of George Zimmerman, a white Hispanic man who shot and killed a 17 year old black teenager named Trayvon Martin in Florida. George Zimmerman claimed self defense and was found not guilty of murder or manslaughter in 2013. The verdict outraged people across the country. Shortly before Zimmerman got off, that same prosecutor was working on another case, the case of a black woman named Marisa Alexander, who was sentenced to 20 years for firing a warning shot at a wall near her abusive husband during a fight. Alexander lost her stand your ground hearing. Her warning shot wasn’t seen as self defense. Many other abused women who have claimed stand your ground lost their hearings too, they didn’t walk free like Zimmerman did. The disparity and outcomes for these kinds of cases incensed activists. In 2017, after intense advocacy for her release, Marissa Alexander was finally freed. But then that same year, Deven was locked up for shooting John and the cycle of women getting arrested for self defense continued.

 

Dan  08:38

Always have my colleagues here with me to the point that I get made fun of in the courthouse because I always carry on a good zero.

 

Liz Flock  08:44

This is Dan Alexander, Deven’s defense attorney. He’s a 40 something white guy, an Alabama native and a bit disheveled in the way many public defenders are. And he has a few quirks like that he loves Coke Zero.

 

Dan  08:57

I get really irritated, man, the current machine is out of them and I have to settle for Diet Coke or something else.

 

Liz Flock  09:03

Dan started off as Deven’s public defender, but after he moved to private practice, Devens dad hired him on a $5,000 retainer, and Dan seemed to know what he was doing. He had been a prosecutor in Shelby county’s first stand your ground hearing. He was friends with the judge. Deven was under the impression at the time that he might get her off. But Dan knew representing Deven wouldn’t be an easy job, which he told her. For one thing Shelby County and its courts have a reputation of being tough on crime, especially for anyone charged with murder. All the lawyers knew it.

 

Eric  09:40

The mindset in Shelby County the mindset is pro police. And if you wouldn’t have been messing up doing what you were you if you got arrested and you got this far. You probably did it.

 

Liz Flock  09:54

That’s Eric Fine and attorney and the owner of Patriot law firm in neighboring pal city, Alabama. We sought out fine because even though he didn’t handle Deven’s case, he has represented clients who have claimed stand your ground. And he knows Shelby County. Well, the county is one of the whitest and reddest in Alabama. A deep red state, Fine fits right in.

 

Eric  10:16

Because I’m a Trumper okay, I’m a libertarian. You can tell I’ve got I’ve got Trump on the wall there. I’ve got Trump on the wall there with all the Republicans. You know, I am that’s who I am and what I am, but a lot of my fellow brothers and sisters on the defense bar, they are left wing.

 

Liz Flock  10:35

Still find sees the problems in Shelby County. He has some pretty strong feelings about the criminal legal system from what he’s seen.

 

Eric  10:43

I live in Shelby County okay, and the system sucks. It just does and if you don’t think there’s rich man, poor man justice. You’re wrong.

 

Liz Flock  10:54

Dan Deven’s attorney was aware of the mindset in Shelby County, and he was worried about how Deven would be perceived. She was an unemployed black woman who shot and killed her white boyfriend in the cramped trailer they lived in on an overgrown unkempt property.

 

Dan  11:10

I mean, people living in those conditions don’t get the same treatment from the police that people living in the nicer neighborhoods might and I don’t, I don’t even mean that as an indictment of the police. I mean, to some extent, that’s just sort of human nature.

 

Liz Flock  11:22

Human nature no, the police should be giving everybody equal treatment. Dan did worry about how Deven would be perceived as a woman and a black woman at that women are twice as likely to be convicted than men when claiming standard ground and their homes. According to a study published in the journal the Social Science Quarterly.

 

Dan  11:44

I do think that the court system in the south does have a tendency, or at least in my experience, obviously I can’t speak for the whole south, but does have a tendency to treat men and women differently.

 

Liz Flock  11:57

On top of that, a Tampa Bay Times investigation found that black people who use the standard ground law are almost 15% more likely to lose their hearings than their white peers.

 

Dan  12:08

Well, I mean, I just think we have a Shelby County, law enforcement, lawyers judges is all predominantly white. And you know, just like everywhere else. In the south, at least I can’t speak for the whole country, I’d say is still a large percentage of the people arrested in Shelby County are black and there’s seems to be and this is just anecdotal now, but there seems to be disproportionate sentences and treatment for the same thing.

 

Liz Flock  12:43

Dan says this is just anecdotal. But we know that’s not true. It’s well documented that black defendants receive longer sentences than white defendants for the same crimes, especially in a case like Deven’s where a black woman shot and killed her white boyfriend. According to the Sentencing Project, a black person who victimized as a white person is more likely to get a more severe sentence than if they committed the crime against another black person. Despite all of these factors at play, Dan filed a standard ground claim. And Deven got a hearing in front of the judge for December 2018.

 

Dan  13:21

I didn’t ever necessarily think that we were going to win the Stand Your Ground hearing. I mean, not that we didn’t try to win it. But I didn’t expect to win it. But what I did expect to do is kind of get that story out there.

 

Liz Flock  13:32

Dan wanted to get the story that Deven was defending herself from abuse in front of the prosecutor and judge, because even if Deven lost her stand your ground, it could still help to have that narrative established for later jury trial.

 

Dan  13:46

I mean, she had no driver’s license, she no vehicle she had no friends or family nearby. She was very far away from the family. She did have and had not had contact with them in a long time so, you know, I felt like she truly didn’t feel like she had any options, when this took place.

 

Liz Flock  14:03

Dan was confident the judge would see these details as important, if not at the standard ground then at least at the jury trial, where she’d have the same judge.

 

Deven  14:12

I mean, I thought, you know, surely they’ll see that it’s self defense.

 

Liz Flock  14:19

But the prosecution was working with a different set of facts.

 

Liz Flock  14:48

It was the morning of the standard ground hearing on December 17. Almost exactly a year after the shooting. The weather outside was cold, damp and gray. It was raining and Deven was wearing her orange jail uniform and a thermal but had no jacket. It didn’t help that she had a migraine and didn’t sleep well the night before.

 

Deven  17:09

I remember almost falling into a puddle. And I was miserable and I was so sad. We didn’t get like, like warm stuff to put on so you had to free.

 

Liz Flock  17:27

Deven says there were other cases on the court docket that day, but she was loaded up and transported to the courthouse alone. Since she was charged with a violent crime. She couldn’t ride with anyone else.

 

Deven  17:39

Oh was isolated out always alone and I didn’t have anyone to talk to you about.

 

Liz Flock  17:44

Deven shuffled into the court building for her hearing both her ankles and wrists shackled.

 

Liz Flock  17:50

Keeps those shackles on you while you are testifying?

 

Deven  17:54

Oh yeah, they keep them on me the whole time.

 

Liz Flock  17:58

Dan later told me he could have had Deven’s shackles taken off, but he says he wanted to remind the judge that Deven was serving her time. She says she wasn’t offered a change of clothes or even a hairbrush. In jury trials, a defendant has the right to appear in civilian clothing to preserve their presumption of innocence. But that’s not required for a standard ground hearing like Deven’s where there is no jury, only a judge.

 

Dan  18:28

Devin, obviously comes over from jail. So they would have brought her in to these backdoors.

 

Liz Flock  18:33

Dan later gave me a tour of the courthouse which is just across the street from his office. The building looks like it’s from the early 1900s was lots of wood and marble and carpet.

 

Dan  18:45

There’s an elevator right there. It goes up from the transport. So they would have come back there. And they would have brought her in Ghana here 30 or 45 minutes early so that I had time to talk to her.

 

Liz Flock  18:59

Devens judge on the case was The Honorable Judge William Bostick. Dan knew the judge well, the judge actually helped Dan get a job when he was a younger lawyer. Judge Bostick is a former prosecutor and Deven got that vibe from him. As the judge heard the cases before her as she grew worried. He seemed stern and callous, like he wasn’t taking much time to deliver his verdicts. Suddenly, it was Deven’s turn, the state of Alabama vs. Deven Gray. The defense was called to go first. Dan put Deven on the stand as the opening witness. Dan strategy for the hearing was to focus on Devon’s history of abuse. I see questioned her. Deven testified that John stopped her from seeing or speaking to anyone, and that as John drank more, he got more creative with his beatings, even holding screwdrivers to her neck. But soon after Dan got started The Assistant District Attorney for the state Daniel McBrayer got in the way. Rick Breyer was a young hotshot prosecutor in his early 30s. At the time of the hearing, his dad had been a former assistant DA for Shelby County and a judge in Calera. Now, he was an assistant DA himself. And he objected, arguing that the court shouldn’t learn about John’s prior abuse.

 

Rick  20:25

Judge, I’m going to ask that the witness be restrained to violent behavior concerning this event.

 

Judge  20:31

Sustained, just if you will answer the question instead of the narrative.

 

Deven  20:36

I guess we had our ups and downs.

 

Liz Flock  20:40

There isn’t any tape of the hearing, but we had actors read parts of the court transcript, which you’ll hear throughout this episode. I was surprised the first time I learned as a journalist that prior actions and behaviors sometimes aren’t admissible in court, because they might prejudice the judge or jury against someone. I understand why it could be unfair to bring in a person’s entire history of mistakes or misdeeds. But in domestic violence, the history of abuse and a relationship is so crucial to understanding the night a woman fought back. Still, the criminal legal system doesn’t get it. So all that history of abuse by John that we know of Deven couldn’t talk about it. And neither could aunt Sheila who Dan brought in as a witness next, and Sheila testified that John was evasive before McBrayer cut her off. She said Deven, who she called the doting and dutiful mother once needed a ride to the dentist because her front tooth went missing. But McBrayer objected before she could tell the full story before Dan could make clear that John was the one who knocked it out. So the defense was hamstrung. They could only talk about the abuse on the night of the shooting, which meant Dan was able to show photos to the court of Deven’s injuries from that evening, and they’re pretty gruesome. It’s hard to see how the judge wouldn’t take notice of these. Here’s Dan asking Deven about her injuries from that night.

 

Dan  22:15

Can you tell me what injuries are pictured there in the pictures?

 

Deven  22:19

I have bruising on my arms. My ears all busted up. I have a gash on my neck and then this is just another picture of my ear all busted up.

 

Dan  22:29

Do you know how that injury to your ear was sustained?

 

Deven  22:32

Yes, I was hit repeatedly with the gun.

 

Liz Flock  22:36

When McBrayer got a chance to cross examine Deven he tried to cast doubt on her injuries. He asked Deven about a text to John from the day before the shooting about an injury to her ear. Deven told McBrayer that John had hit her a second time in the same year with the gun the night of the shooting. This is an unusual, according to the Department of Justice, it is common for women who deal with domestic abuse to get repeat injuries to the head. Well, then McBrayer reasoned if Deven was abused, maybe she had premeditated killing John while suffering his abuse.

 

Rick  23:12

Then you go on after describing what his causes bruise on your arm and you say, this is from the gun itself, like he had it pressed up against me at one point and that is when I got it, you know, in my head, I had to do something about it.

 

Deven  23:27

Yes, wrestled it away from him. I would have never shot him if I didn’t feel like I was afraid I loved him very much. I never would have hurt him.

 

Liz Flock  23:37

A well known prosecutorial trick is to trip up a witness on the stand to make Deven seem less trustworthy to the judge. So McBrayer also grilled Deven on why she was sharing more details about the abuse now than she did right after the shooting. Deven said she’d been in shock at the time.

 

Rick  23:57

Don’t you think that your recollection at the time of the interview would be a little clearer than your recollection today?

 

Deven  24:03

Not really, I had spent hours in the hospital. They gave me pain medication, I was still really a shock.

 

Rick  24:11

Let me ask this a different way. Do you remember what you ate for lunch yesterday?

 

Deven  24:15

I didn’t eat lunch yesterday.

 

Rick  24:17

Do you remember if you ate anything Yesterday?

 

Deven  24:19

We had chili for dinner.

 

Rick  24:21

If I asked you six months ago, what you ate? Do you remember what you ate six months ago?

 

Deven  24:25

It would have been chili because they don’t change the menu.

 

Rick  24:29

Let me ask you two years ago what you ate.

 

Deven  24:31

I don’t remember that.

 

Rick  24:32

So your memory is a little better closer to the time of the events.

 

Deven  24:36

Right.

 

Rick  24:37

Then as you get further away, is that not correct?

 

Deven  24:41

Yes, but I also didn’t suffer a dramatic incident. I do remember telling the tech tips that I had said if he had woken up he was going to finish what he started as I have more time to think about it. He did throw in if I didn’t have his phone, he would have finished what he started waking up regardless without his phone or otherwise.

 

Liz Flock  25:02

People who have undergone trauma often struggle with blurry or muddled recollections, and Deven spent hours in the hospital that night on painkillers and without sleep before she gave her statement to police.

 

Deven  25:15

Yes, a lot of it is blurry to me. I don’t understand how you wouldn’t understand that but a lot of it is blurry to me. There was a point where we have fought for the gun. I do remember getting punched and I remember getting punched in the face repeatedly. That is where I have fractures in my face from him hitting me in my face when I was just trying to get the gun away from him.

 

Liz Flock  25:39

Deven tried to explain this to McBrayer. But she says he didn’t get it.

 

Deven  25:44

I think he understood, but it wasn’t his job. To understand it was his job to find me guilty, it was his job to find fault in my testimony.

 

Liz Flock  25:57

According to the prosecution, Deven was a liar trying to cover her tracks after a murder. It’s the narrative the investigator Mike Mel Hoff had presented to them.

 

Liz Flock  26:08

Did you still consider it being self defense? Because she.

 

Mike  26:12

I know I’ve never considered it […]  straight up murder.

 

Liz Flock  26:18

You heard from  Malhoff  in episode two, even though it’s because I know she had those injuries on her.

 

Mike  26:26

Now, she,, claimed he beat her. But I don’t have any proof of that. There was never ever never any evidence that John inflicted that injury on her.

 

Liz Flock  26:36

Assuming like, let’s say Devin was telling the truth that she was severely abused by him for a really long time. Would that have? Would that make a difference in this case?

 

Mike  26:45

No, because you got to look at you’ve got to look at the evidence surrounding the moment that she actually killed him. One he went to slee, two while he was sleeping I mean, he was shot in the back of the head.

 

Liz Flock  27:06

It’s unclear if John was actually asleep. But Deven did tell police that he’d been lying down for five minutes when she grabbed the gun and took her chance at survival.

 

Mike  27:16

Even if she was abused, and I’m not, you know, like I said, I’m not I don’t even want to get into that portion of it because it had no bearing on her actually shooting him that night. It wasn’t a self defense case.

 

Liz Flock  27:33

Malhoff didn’t understand that domestic violence escalates over time, that survivors like Deven can feel fear over the course of years.

 

Mike  27:43

And then, of course, we’ve got other evidence from Alexa and her mother that Deven was actually had was in possession of the gun prior to all this and shooting it off in John’s presence, and him telling Alexa, I’m fearful she’s gonna kill me.

 

Liz Flock  28:03

Malhoff was so convinced by Alexa’s his story, but he couldn’t remember her name when we talked. Sure it was five years later, but didn’t he have the files handy? The evidence that Malhoff feels so strongly about is a second hand story from Alexa’s, who was on the phone, and a third hand story from her mom. He relies on this evidence over actual documentation of Deven’s injuries to her face, arms, ears and neck to come to the conclusion that John was killed in cold blood. Faulty as it was, that’s the story the Assistant District Attorney McBrayer got from detective Malhoff, and he ran with it. At the standard ground hearing, McBrayer interrogated Deven about if she had the gun, and if she threatened John with it but she said no. There was never an official forensic report to determine who handled and shot the gun. Crime scene photos indicate about a dozen bullet holes in the trailer. Deven said in her police interview that John shot all of them. From the interviews the defense team obtained even with John’s own father, we know that John had a habit of shooting in the trailer. Henry said John had previously shot at Deven and at him. So it’s possible some of the bullet holes were from past incidents. Despite John’s history of violence, the prosecution went with Alexa’s his story instead, because John’s prior actions couldn’t be included. And he was the victim now.

 

Mike  29:39

I’ve worked on hundreds of cases. I’ve worked cases where you know, drug addicts or you know, drug dealers had been ripped off. I mean, when I say ripped off, I’m talking legitimately robbed. They’re still a victim. And you still have to seek justice for that now, am I going to be more sympathetic towards the blue haired grandmother? That gets robbed, of course. But even, you know, somebody that’s been wronged. I mean, they still deserve justice and you still, you know, seek justice for that person.

 

Liz Flock  30:18

So, I got stuck on that phrase blue haired grandmother that Malhoff said he was basically saying he was more likely to be sympathetic to an old white lady than anyone else. Studies show that many police officers are biased against black people. Malhoff has no good reason to trust Alexas over Deven. Alexis wasn’t even physically present for the shooting.

 

Dan  30:41

Obviously, John had the gun at least long enough to pistol with Deven with it. So it doesn’t make any sense that Deven went ahead.

 

Liz Flock  30:48

Deven’s lawyer, Dan, notice the holes and Alexa’s story pretty quickly.

 

Dan  30:52

And she didn’t seem remotely concerned about all this. I mean, she relays a story where Deven has a gun to John said and certainly kill him but she doesn’t go over there she doesn’t call the police. She even at one point said she told him that he didn’t have anything to worry about that she wouldn’t have the devil wouldn’t ever heard it so her story was self serving and didn’t make a lot of sense but I guess she did have enough a relationship with the parties. That some people, including the investigating officer seem to find her story somewhat credible.

 

Liz Flock  31:25

That relationship Dan is talking about is the threesome between John Alexis and Deven and of course the prosecution brought that up. Deven testified that she didn’t know much about John and Alexis his relationship. Only that Alexis was John’s girlfriend on the side. That wasn’t really the whole story. But it’s not like she wanted to tell the court about having a threesome her boyfriend had pushed her into the gray or seized on that. He slow rolled his questions for Deven about John and Alexis trying to catch her in a lie.

 

Rick  31:59

Let me ask you that then in October of 17. Did you know that they were having sex?

 

Deven  32:04

Yes, I did I found out they were having sex.

 

Rick  32:08

What about before that?

 

Deven  32:09

No, I had no prior knowledge to them having sex.

 

Rick  32:14

You didn’t remember an incident in late September, say September 26? Where the three of you were engaged in sexual intercourse?

 

Deven  32:23

Yes, I do remember that actually happening. But I don’t remember the time. So if you sit late September, then yes, that is when it happened.

 

Liz Flock  32:32

A video of the threesome was submitted into evidence. It was salacious, but that seemed to be the point to show that Deven was lying and wasn’t in decent woman. When my supervising producer Kristen and I visited Dan in Alabama, we asked him about threesome and how much of a role it played in the standard ground hearing.

 

Kristen  32:53

Does I mean this is a weird question to ask. But like, is everyone friendly?

 

Dan  32:58

No, it’s not a weird question to ask obviously, it’s not something that anybody was going to show to the jury. So nobody was going to see it but they were going to hear about it and I’ll tell you, and I haven’t watched a lot of recent videos. Okay but I’ll tell you, it’s weird. I mean, it’s almost like neither one of the girls really want to be there, and it’s kind of clear that neither one of them is real happy about the situation. Alexis probably more so than Deven in terms of like being happy to be there. I mean, there’s a weird dynamic, but it’s not hostility. But I mean, it’s not like Deven and Alexis or buddy buddy are in each other or anything like that.

 

Liz Flock  33:46

It’s […] like course.

 

Dan  33:49

Oh, and there’s no doubt about that.

 

Liz Flock  33:52

But coerced isn’t what the prosecution was saying. Instead, McBrayer asked Deven if she and John were fighting about Alexis the night of the shooting. He was creating another motive for Deven, that she wanted to kill John for running around with Alexis. Looking back at the hearing, it’s obvious but the focus on the threesome was intended to do. Even if the threesome wasn’t Deven’s idea, and it was John’s fantasy. It was meant to sexualize Deven in a way black women have often been sexualized.

 

Deven  34:24

I know that the prosecutor would have tried to put it that way but it just seems it seems kind of ridiculous to me that he would even go that way about it because it happened two months before I actually ended up shooting him.

 

Liz Flock  34:48

Deven was trying to say it wasn’t an act of passion. But the prosecution was trying to paint Deven as a Jezebel. The thing is, Deven doesn’t sound like a wrathful scorned lover in her texts, she just sounds sad that John isn’t around more for their daughter. And if all of this wasn’t bad enough for the case against Deven, the real nail in the coffin was the amount of time that elapsed between her picking up the gun and shooting it, and McBrayer knew it.

 

Rick  35:20

He lays there like that headed for sleep for I think you said five minutes, right? He just after he has been laying there for five minutes, that you shoot him in the back of the head, right?

 

Deven  35:35

Uh huh.

 

Liz Flock  35:38

Five minutes pass between when John went to lie down and Deven shot him. Even I struggled to wrap my mind around that length of time. So I asked Deven about it.

 

Liz Flock  35:50

What did time feel like for you? To know how […]/

 

Deven  35:55

To I really tried hard to give them a timeframe because it really didn’t. It didn’t feel like any time like that but. I tried to give him or give him a timeframe just so I could maybe wrap my head around it too.

 

Liz Flock  36:14

So maybe it was less than five minutes, maybe more. It is common for trauma survivors to have a hard time remembering exact timeframes. Earlier in the hearing, Dan had asked Deven what was going through her mind when she shot John. She testified I just didn’t want it to be me. That line from the transcript sticks with me. Because covering these cases, that’s what so many women say that they just didn’t want to die. I have reported several stories where women didn’t fight back right as they were being assaulted. One story was about a woman who killed her rapist hours after the fact when he still wouldn’t leave her home. Another woman shot her severely abusive ex husband as he was walking towards her on a boat dock because she feared he’d killed her. Courts ruled that those weren’t examples of self defense. They said these women weren’t in imminent danger. But as domestic violence experts argue when you have an abusive partner, you are always in imminent danger. You are always at risk of being hurt or killed.

 

Liz Flock  37:37

Deven’s hearing lasted just a couple hours. I was surprised. Another standard ground hearing I covered for the case of a white woman in Alabama who killed her rapist went on for two days. But that case got a lot of attention on like Deven’s. Before Deven knew it, it was time for the verdict from Judge Bostick.

 

Deven  39:23

They said he deliberated or whatever. But it was literally like five minutes.

 

Judge  39:27

I did not find that the defendant has sustained her burden of proof proven by a preponderance of the evidence that she is entitled to immunity.

 

Liz Flock  39:35

The judge denied Deven’s immunity on the grounds of self defense. In his verdict, Judge Bostick pointed out that Deven wasn’t being assailed at the time she used deadly force. He said that if you’re afraid for your life and a future moment, stand your ground doesn’t cover that. That is not what the law is he said. It struck me that Judge Bostick said this because I knew about his ruling on another case the case of Kat West, it was a very high profile case in Calera, in which a white man killed his white wife Kat West in 2018. She was a cam girl and stay at home mom, and she died from a bottle blow to the head, an injury that her husband inflicted. When Bostick later sends Kat West husband 16 years he said, quote, domestic violence always follows according to a pattern, and that Kats death could have been foreseen because domestic abuse happens over a period of time. So he understood that Kat West had been in danger. But with Deven’s case he couldn’t see it. Not even in the photos of her injuries. Or maybe he did see it but he was saying that self defense laws didn’t. And guess who prosecuted Kat West husband for killing her the same prosecutor on Deven’s case. Daniel McBrayer, it was like they could only see the abuse when the woman was the one who was dead. Reading and rereading the transcript of Deven’s hearing, I think a little bit about Judge Bostick. But mostly I think about the prosecutor McBrayer because he had access to Deven’s text’s with John, which proved the abuse had gone on for years. He had evidence that Deven was in danger of being killed. He didn’t have to prosecute Deven for murder. He could have dropped the charges, but he went after her anyway. I got in touch with McBrayer to ask him about Deven’s case.

 

Dan Mcbrayer  39:40

Hello?

 

Liz Flock  39:47

Yeah, hi is this Dan McBrayer?

 

Dan Mcbrayer  41:53

Speaking.

 

Liz Flock  41:55

Hey, Dan, my name is Liz Flock. And I’m a journalist who’s trying to get in touch with you for a podcast I was doing on Deven Gray’s case. Do you have a few minutes?

 

Dan Mcbrayer  42:07

I’m not interested in speaking about it.

 

Dan Mcbrayer  42:16

No, I’m not interested, sorry.

 

Liz Flock  42:19

Okay, could you just tell me why you’re not interested?

 

Liz Flock  42:20

Okay, I just feel like it’s always really helpful to have the prosecution’s perspective and, go figure. S

 

Liz Flock  42:30

Something I’ve thought about a lot reporting on these stories is that a court always wants a quote, perfect victim make innocent and usually white.

 

Mariame Kaba  42:40

Often, black women can’t be perfect victims, because did they express anger?

 

Liz Flock  42:48

That’s Mariame Kaba, an advocate, organizer and prison abolitionist. She is one of the most respected people working in this field.

 

Mariame Kaba  42:56

And does that then mean that they can’t be victimized because they were angry and they may be fought back. If you fought back, are you quote unquote, a good victim probably not.

 

Liz Flock  43:08

A perfect victim usually doesn’t know her perpetrator either. It’s better if it’s a stranger came out of the dark, not an abuser who the woman stayed with for years.

 

Mariame Kaba  43:18

Everybody says I would leave and I would do everything I can to get out and then when a person does that, then they’re severely punished for it.

 

Liz Flock  43:27

When a person does try to get out, when a woman defends herself to save her life, she often goes to prison. Mariame Kaba has helped dozens of people who have been criminalized for fighting back through an organization she founded called Survived And punished. She has helped women get out of prison after they lost their self defense cases. But she had never heard of Deven story. There are just too many Deven’s when I told her about Deven’s case, during our interview, she made an argument I didn’t expect.

 

Mariame Kaba  44:01

Stand Your Ground laws are not the point. Because those laws are always going to be limited in terms of who is going to be able to make a claim under those laws. Plus, it’s too far down the line of the problem. By the time you get to the point where you might try to invoke stand your ground. All the tragedies have happened prior to that. And I to me, laws are not going to, quote protect people. That’s not the point of them. They’re there to either punish, or they’re there to show a communities to impose its standards, which they never actually live up to. You know, and so we’re gonna have to do that hard slog work of change. We’re gonna have to do that hard work of providing people with the resources they need to survive and thrive. We’re gonna have to do a lot of other things before the quote unquote laws make the difference.

 

Liz Flock  45:03

For a long time as a journalist, I often asked what could make the laws better. But Miriame Kaba and other advocates have changed my thinking, the Stand Your Ground law wasn’t made to protect the Deven’s of the world. And it’s probably not going to, we have to fill in the gaps where the laws fail. We have to reimagine how we see domestic abuse, how we see gender and race. We have to pay attention to the people in our lives who need help. And we have to hold the legal system accountable. Can you think about right now, a time when you heard about a domestic abuse situation, from a friend or on the news and thought something like, how could she stay? Or I would never take that? Or you just made a joke? How different would it be if instead of being dismissive, we asked questions about how to help them instead. After the hearing, Deven returned to the pod at Shelby County jail with the other women, the cold gloomy weather was the perfect metaphor for how she felt afterwards. She was utterly dejected. She said she cried uncontrollably that day, she could feel herself slipping into a depression.

 

Deven  46:23

I felt really like crestfallen is like the life that drained at me. And I just remember folding in tears. And then they are Xander, my lawyer, and I saw him and when I broke down, that tragedy strong the whole time, I figured that I was going to be let go, even though there was like a little bit of you that was like, there was some of me that was like, well, I could very well get out of here.

 

Liz Flock  46:59

But her lawyer Dan had always worried that Deven was a little too honest for Law and Order Shelby County.

 

Dan  47:05

She obviously told the truth, maybe to a fault. But you know, she basically just told the truth so and despite what we like to say the truth doesn’t always set you free in these sorts of cases.

 

Liz Flock  47:17

He’s right, the courts aren’t ready for the truth, especially when it comes to domestic violence. judges and prosecutors don’t want to hear the messy reality that abuse victims don’t fight back at convenient times. instead of considering crime in a vacuum. They should be looking at the history of an abuse dynamic to see who is really the perpetrator and who was the victim. And sometimes, that answer is right in front of them. McBrayer had the truth, right there in the texts and Henry’s interviews, he just chose not to see it.

 

Liz Flock  48:00

Next time on Bind Plea, why Deven took a bad deal.

 

Judge  48:06

While I was told by an attorney that a black person doesn’t have a chance and should have been counted. The jury selection seems like it just fell off when it comes to African Americans.

 

Liz Flock  48:19

After losing her standard ground hearing, Deven and her attorney Dan had to consider their next move. At first they prepared for a jury trial, but then they suddenly changed their plan.

 

CREDITS  48:35

If you or someone you know is experiencing domestic abuse, use a safe computer and contact the National Domestic Violence Hotline at the hotline.org or call 1-800-799-7233. There’s more Blind Plea with Lemonada Premium, subscribers get exclusive access to bonus content. Like an interview with John’s dad, Henry and more excerpts from Deven’s detective interview the night of the shooting. Subscribe now in Apple podcasts. Blind Plea is production of Lemonada Media. I’m your host Liz Flock. This episode was produced by Kristin Lapore, […] Evans and Tony Williams, Hannah Boomershine and Rachel Pilgrim are also our producers. Story editing by Martina Abrahams Ilunga. Mix music and sound design by Andrea Kristinsdóttir  with additional mixing and engineering from Ivan Kuraev. Naomi Barr is our fact checker. Jayla Everett is our production intern. Jackie Danziger is our Vice President of narrative content. Executive Producers are Stephanie Wittles Wachs, Jessica Cordova Kramer, evoked media, Sabrina Merage Naim and myself, Liz Flock. This series is presented by Marguerite Casey Foundation. Help others find our show by leaving us a rating and writing a review. Follow me at @LizFlock. And for more stories of women and self-defense, check out my book The Furies from Harper books available for preorder now. Find Lemonada at @LemonadaMedia across all social platforms, and follow Blind Plea wherever you get your podcasts or listen ad free on Amazon music with your Prime membership. Thanks so much for listening.