He’s been in prison for 14 years. And he has never wavered on the fact that he is innocent and was wrongly accused and convicted.
In February 2002, Gary Tomlin was living and working in Three Rivers when a chance sexual encounter at Lake Kaweah sent his life into a downward spiral from which he would never recover. During the subsequent trial, Gary was found guilty on charges that included a gun enhancement even though a weapon was never produced. In a case that was based on he-said/he-said testimony, circumstantial evidence, and no physical proof, Judge Joseph Kalashian sentenced Gary to 51-years-to-life and, on April 3, 2003, he was sent to state prison.
And now, for the past almost four years, Gary, 54, has been battling cancer. He has been diagnosed with Stage 4 gastroesophageal cancer.
Gary is currently housed at the California Health Care Facility in Stockton. He has endured surgeries and several rounds of chemotherapy, but the cancer has continued to spread and is now in his bones, lungs, and liver. Physicians have determined that his condition is terminal.
In November 2016, Gary’s physician recommended that he be considered for “compassionate release.” The compassionate release program is a special request to the state Board of Parole Hearings for clemency, or a commutation lessening the length of a prison sentence, that would allow an inmate to be released early if they have been diagnosed with a terminal illness and have six months or less to live.
However, the recall of a sentence due to a compassionate release request is doled out sparingly. From 2007 through 2010, the California Department of Corrections and Rehabilitation approved compassionate release for four prisoners. From 2011 through 2013, more than 90 applications were approved, about 20 percent of the requests received, due to the system using the program as a way to relieve prison overcrowding.
Although Gary will never recover from the cancer that has invaded his body, it is conceivable that he will die in prison before his request is approved. And even if approval is received, it’s possible that the follow-up administrative process necessary to secure release could take months longer than Gary has to live.
Gary’s first request for compassionate release — in which he asked to be allowed to return to his home state of Virginia to live out his days being cared for by his 85-year-old mother — was denied by the Board of Parole Hearings. Even if he would have received approval from the Board, this is only one hurdle of several more. The next step in the process is that the request be referred to the sentencing court, which, in this case, is Tulare County Superior Court.
On March 5, 2015, the California Supreme Court held that because denials of compassionate release directly affect prisoners’ rights, they are entitled to challenge the ruling. For this next go-round, Gary’s family, which consists of his mother and his sister-in-law, has retained a lawyer for guidance through the legal maze.
Just paying the retainer for the Sacramento-based attorney was a hardship. Gary’s mom had previously mortgaged her home to pay the attorneys’ fees during the original trial in 2003.
Over the years, Gary’s case has captured the attention of those prominent in the field of wrongful imprisonment. The Northern California Innocence Project worked for several years on his release with the firm belief of his innocence. NCIP had to finally close their case files due to no DNA evidence ever being collected and the refusal of the accuser to recant the charges.
A renowned private investigator provided a polygraph test, which Gary passed, leaving no doubt in the investigator’s mind of Gary’s innocence. And several prominent leaders in prisoner advocacy have connected with Gary and are also are convinced of his wrongful imprisonment.
Those who wish to assist Gary in his perpetual quest for exoneration or to provide funds to the Tomlin family for the associated costs required to bring their loved one home for his final days may send an email to firstname.lastname@example.org. Crowdfunding assistance can be made at www.youcaring.com/garytomlin-777414.