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Death row inmate appeals sentence over Comedy Central footage

Texas inmate argues that a stand-up comedian’s taping was improperly used to sentence him to death for attacking an elderly married couple

The U.S. Supreme Court in Washington. (Samuel Corum/AFP/Getty Images)

A Texas inmate filmed as part of a Comedy Central roast by comedian Jeff Ross while in jail is appealing his case to the U.S. Supreme Court, arguing that the stand-up’s footage was improperly used to sentence him to death for attacking an elderly married couple.

Gabriel Hall was awaiting trial for a high-profile capital murder charge when Ross, known as the “Roastmaster General” for his insult comedy, was invited to Brazos County Jail and interviewed Hall and other inmates in 2015.

Though it never aired, the video was later subpoenaed and presented to the jury by the prosecutor, who argued Hall did not show remorse four years after the 2011 killing. But Hall’s legal team has argued that the taping happened without his lawyers’ knowledge and violated the inmate’s Sixth Amendment right to counsel.

It is unlikely that justices would pick this case to hear at a Jan. 6 conference, when the court could pluck a few cases from hundreds filed to review, according to legal experts. However, the experts also questioned the jail’s decision to let film crews in without inmates’ lawyers present and the prosecutors’ decision to use the tape during sentencing.

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Hall’s lead attorney, Robert Owen, argues that this bench, the most conservative in decades, should take the case to probe a gap in legal precedent on the Sixth Amendment, comparing the comedy roast with using a jailhouse informant.

“The case is about when the state can interfere with the attorney-client relationship between an accused person and their counsel,” Owen told The Washington Post. “No one has addressed this question of whether the state violates an accused person’s right to counsel by giving a third party access to the defendant.”

The unusual circumstances of this case make it less pressing for the highest court, where justices are focused on legal questions with far-reaching impact, said Bruce Green, a Fordham Law professor specializing in legal ethics. Green evaluated the case when a colleague asked him if he would write an amicus brief supporting Hall.

“That said, I think it’s pretty outrageous,” Green said. “To me, it would be pretty inappropriate for the prison authorities to allow a reporter without permission of Hall’s lawyer. That’s essentially what they did, but it was worse. It was an insult comic whose job it is to provoke people.”

The Texas Attorney General’s office did not respond to a request for comment from The Post. The state has argued that the use of the comedy show video doesn’t constitute a violation of the Sixth Amendment — which prohibits the government from deliberately eliciting incriminating information from defendants via a state agent — because Ross did not have that authority. The Texas Court of Criminal Appeals agreed, rejecting Hall’s appeal.

Ross did not seek Hall out for the prosecution like a state agent, and Hall could have not talked with the comedian or shared anything that could implicate him, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, an organization advocating for capital punishment. It’s also possible that the video was not what swayed the jury during sentencing, Scheidegger said.

On Oct. 20, 2011, then-18-year-old Hall broke into the garage of a College Station home in an attempted burglary, repeatedly stabbing one of the residents, 68-year-old Edwin “Ed” Shaar Jr., a Navy veteran who had Parkinson’s disease. He then shot and killed Ed at point-blank range. Hall also tried to shoot Ed’s wife, Linda, who was in a wheelchair, but the gun jammed, so he stabbed her as she was on the phone with 911. Hall fled, not taking anything, while Linda survived and described Hall to police. He was arrested shortly after and indicted.

Around the same time, Ross sought to produce a comedy roast set in a jail, he told an Entertainment Weekly reporter later that year. He said he had wanted to humanize those behind bars. Comedy Central executives told Ross there would be too much red tape to accomplish it, but Ross put out an ad in the American Jails magazine. Wayne Dicky, then the jail administrator and now the sheriff for Brazos County, called after he saw the ad, saying he was open to allowing the film crew in if they provided additional security.

“I wanted to do something that would enlighten people, not make it about the politics but about the people,” Ross said at the time. His representatives did not respond to requests for comment about this case. Since news about the case broke, Ross has liked tweets expressing that he shouldn’t be blamed for how the video was used.

Dicky, who did not respond to a request for comment, promoted the show as a reward for good behavior, and fliers placed around the jail encouraged participation.

After Hall was indicted, he was appointed trial counsel in November 2014. They sent the Brazos County sheriff a “no contact” letter that said Hall’s legal team had to provide written approval if officers wanted to talk with Hall.

Three months later, Ross spent several days interviewing the inmates on camera for the show. At one point, Ross walked into one of the jail’s housing pods and up to a table where Hall and other inmates were sitting. The 17-minute conversation captured on video was never aired, but court documents filed by Hall’s legal team shed light on what was said.

The camera appears to focus on Hall for most of the conversation, as Ross comments on his intimidating demeanor and references his Asian heritage.

Ross asks Hall what he is in jail for and suggests, “Hacking somebody’s computer?”

“Something like that, yes,” Hall answers.

“‘Hacking’ being the operative word,” another inmate says.

“Yeah. Yeah, used a machete on someone’s screen,” Hall says.

In another part of the conversation, Ross talks with the inmates about life behind bars and brings up Texas’s aggressive use of the death penalty. Texas kills more prisoners than any other state.

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“Well … they’ll basically screw you over, over the most … ah, petty s---,” Hall says.

When the jail administrator learned about the conversation, he contacted Comedy Central to request the interview not be published, citing the high-profile case, according to court records. Dicky also asked the network to give him a digital copy. Weeks later, the state subpoenaed the footage and notified Hall that it intended to use it in its evidence during the punishment phase of the trial.

The prosecutor pointed to it as proof that Hall felt little remorse for his crimes and little appreciation for human life.

The jury deliberated for more than seven hours and sentenced Hall to death. Hall, now 29, has spent more than seven years on death row.

Owen, Hall’s lead attorney, said that if the Supreme Court passes on hearing the case, another federal court could still review his client’s conviction to determine if he had a fair trial. Two other post-trial proceedings in Texas remain ongoing.

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