The court granted the stay requested by attorneys for Aaron Cody Smith, who is charged in the death of Gregory Gunn, 58, in February 2016.
A grand jury indicted Smith in November 2016. Smith, 25, contends that he acted in self-defense. His trial was scheduled to start Monday.
Last month, Montgomery County Circuit Judge Greg Griffin denied a claim of immunity for Smith by his lawyers.
Smith's lawyers then asked the judge recuse himself from the case, to disqualify the Montgomery County district attorney's office from prosecuting the case and for a change of venue. Griffin denied those requests. Griffin is a black judge.
Smith's lawyers appealed Griffin's denial of their motions on immunity, recusal, disqualification and change of venue and asked for a stay.
The Supreme Court granted their motion for a stay today on a 4-2 ruling, with three justices abstaining.
Justices Michael Bolin, Tommy Bryan, Jim Main and Will Sellers concurred on the motion to stay. Chief Justice Lyn Stuart and Justice Brad Mendheim dissented. Justices Tom Parker, Greg Shaw and Kelli Wise recused.
The court directed Griffin and the attorney general's office to file responses within 14 days. Smith's lawyers will then have seven days to reply.
Montgomery County District Attorney Daryl Bailey said the case is on hold until the Supreme Court makes a final ruling on the issues.
Smith's lawyers claimed that Griffin had tainted the jury pool and compromised Smith's right to a fair trial by making a comment during a July 26 hearing on the immunity issue.
The judge said during the hearing, "I have to admit, I don't find the officer's testimony to be credible," according to the motion by Smith's lawyers. [Since white cop has requested a jury trial - the judge's opinion here is not important. They don't want a Black judge because he is Black.]
Smith's lawyers also sought disqualification of the district attorney's office because Griffin's son works there.
Smith was on patrol in Montgomery's Mobile Heights neighborhood shortly after 3 a.m. on Feb. 25, 2016, when he stopped Gunn, who was walking and lived in the neighborhood.
A state investigator would later testify at a preliminary hearing that Gunn was hit with a stun gun three times, beaten with a baton and shot five times by Smith.
A judge found probable cause and forwarded the case to a grand jury, which indicted Smith in November 2016.
A wrongful death lawsuit filed by Gunn's family said Gunn was walking home from a neighbor's house after playing cards when the encounter occurred. It says Gunn was unarmed and that Smith had no reason to stop him.
According to Montgomery Police Chief Ernest Finley the officer thought Gunn looked “suspicious” when he spotted him walking along McElvy Street in Mobile Heights at about 3:20 a.m.
As Gunn neared the house he shared with his 87-year-old mother, the officer exited his patrol car and approached Gunn. A struggle ensued, and the officer fired several shots, fatally wounding Gunn, Finley said, according to the Associated Press.
Neither Finley nor Strange has said what, exactly, was suspicious about Gunn, although Strange said there has been rash of burglaries in the area.
“He was hollering, ‘Help,’ and he was beating [on the neighbor’s door] like it was the last breath of his life,” said Franklin Gunn, who was at his Virginia home when the incident occurred but said he spent the last four days in his home town talking to witnesses.
He claims the city is covering up the truth about the police-involved shooting. He says that the painter’s stick was on the neighbor’s porch, there were several officers involved and that his brother was shot as many as five times, including two rounds in the back.
Most controversially, Franklin Gunn claims police let his brother die.
“They didn’t call [the paramedics] for 20 minutes as my brother laid on the ground and they stood over him and watched him die after they executed him,” he said.
“He was banging on the window and calling my name as loud as you could call it, his voice raising more and more,” Hinson told the Advertiser. “That was the only voice I heard. I didn’t hear anybody say, ‘Stop, halt, lay down.’ Nothing.”
Another neighbor, Scott Muhammad, said he spotted someone get “thrown around” and went outside to break up what he thought was a fight.
“It escalated. You could just feel the energy,” Muhammad told the Advertiser. “I turned around and told my wife to call the police. Then I saw him shoot four or five times and said, ‘Damn, that was the police.'”
He also said Gregory Gunn was shouting for help when he was shot.
“I saw when they killed him,” Muhammad said. “He was calling for his mother, his neighbor. He was knocking on the window.”
Muhammad said he saw two officers on the scene, one standing over Gunn and another laying in Hinson’s yard with a hand over his head.
“The paramedic never even made it over” to Gunn, he told the Advertiser. “Nobody came and actually checked on this brother. Nobody tried any lifesaving techniques or anything like that. I watched the whole thing.”
Kenneth Gunn, another brother, pointed out that their father had been one of Montgomery’s first black police officers. Gregory was “scared to death of police,” Kenneth told the Advertiser. “He might run from them, but he wouldn’t attack one. No way.”
In a request to be dismissed from the lawsuit, the city and Montgomery Police Chief Ernest Finley described the incident as follows:
"On February 25, 2016, at approximately 3:20 a.m., Officer Aaron Cody Smith came into contact with Gregory Gunn in an area of the City which had been the subject of a rash of burglaries and is generally known as a high crime area. Officer Smith initiated a field interview of Mr. Gunn. Following a series of confrontational events which escalated to a situation of the gravest nature, Officer Smith drew and fired his service weapon causing the death of Mr. Gunn."
One of Smith's attorneys, Mickey McDermott, told AL.com in 2016 that Smith did not intend to kill Gunn. He defended his client’s decision to use lethal force. He said Smith was simply trying to talk to Gunn, who escalated the situation by trying to escape and left the officer without any other choice but to shoot.
“You can twist words all you want, but let’s just stop. Let’s get the facts … Now, remember, this officer didn’t turn on his blue lights. He wasn’t making an arrest. He was getting out to talk to Mr. Gunn. Mr. Gunn made himself a suspect,” McDermott told reporters, according to the Montgomery Advertiser. Right, there was no legal basis for the stop!
In an interview shortly after the shooting, however, Finley told the Advertiser that Gunn was killed while holding what appeared to be a weapon and was later identified as a retractable painter’s stick.
A state investigator testified at the 2016 preliminary hearing that Smith told them two versions of what happened. In one version, Smith told investigators that during the confrontation Gunn picked up a long pole used for a paint roller and swung it at him. In the other version Smith wasn't sure if Gunn had swung a pole at him, the investigator stated. The pole did not have Gunn's fingerprints on it, the investigator testified.
Franklin Gunn says that story is bogus.
“He was not carrying a painter’s stick,” he told The Post. “I do know the painter’s stick is a lie, and they know it’s a lie.”
“I want to see all white officers out of the black community,” Chris Miles, a close friend of the Gunn family, told the Advertiser. “I don’t want them patrolling here anymore, because we’re either ‘suspicious,’ or if something happens, they say they were in fear of their life. Those ‘talking points’ get them not indicted. We can’t live under those conditions anymore.”