“The last day in prison is a day I will never forget,” Debra Brown says.
There was some initial confusion that day, May 9, 2011, when Utah State Prison guards took Brown out a different way from where prisoners are normally released. But then, after 17 years, she was free. When she finally came around the building, there was a red carpet, friends and family, people from her church, a dozen red roses, a bicycle from her brother and the pouring rain.
“The most beautiful storm,” she says.
Brown and her attorneys packed into a car and drove giddily to the Rocky Mountain Innocence Center’s office in Salt Lake City. “My face hurt from so much smiling,” Brown says.
About a week earlier, after a six-day hearing, a judge had ruled that she hadn’t murdered her boss in 1993—making her the first to be found factually innocent in Utah under a new state statute. Her freedom was the result of 10 years of work by her attorneys at the Rocky Mountain Innocence Center.
Later that day, RMIC President Jensie Anderson recalls, Brown was sitting on a windowsill of the RMIC office, on the 12th floor of the downtown Artspace building, looking out at the Salt Lake City skyline while family, friends and lawyers celebrated with pizza. The spires of the Salt Lake Temple were in view—perhaps a reminder of the lone spire of the Jordan Temple she saw from her prison window for the better part of two decades. Brown had converted to The Church of Jesus Christ of Latter-day Saints while in prison.
A couple of hours later, the day got better.
Then-Utah Attorney General Mark Shurtleff tweeted from his hospital bed, where he was undergoing chemotherapy, with the unexpected good news that his office would not appeal the court’s decision.
Anderson, who worked as an attorney and then consultant for Brown, called the Attorney General’s Office and was assured the state would not appeal. She walked into the room where the others were gathered to break the news.
“The room exploded with joy and tears and relief,” Anderson says.
But the joy didn’t last. Two weeks later, the Attorney General’s Office filed an appeal with the Utah Supreme Court, challenging Brown’s innocence.
Shurtleff, who now works in the private sector for the law firm Troutman Sanders in Washington, D.C., told City Weekly in a recent telephone interview that he was surprised by the ruling. He was always sure that Brown was guilty. But when the innocence ruling came down, he shared the sentiment many had of Brown: She was a model prisoner and had served her time.
“There are those that believe that prosecutors and government attorneys do not have any heart ... but we do,” Shurtleff says.
After Shurtleff returned to his office and fielded calls from concerned county attorneys, however, he became convinced that the judge had misinterpreted the law. “Debra Brown was the only person who had the motive, opportunity and access,” Shurtleff says. Plus, the appeal is not just about Brown, he says. His office thought the successful appeal could impact other petitions from prisoners claiming innocence.
“This goes so far beyond Debra Brown, this is mostly about the process …” Shurtleff said in a May 26, 2011, press conference. “We fear there will be a floodgate opened. Every judge out there will be … giving another bite of the apple to everyone convicted of a crime ... years, if not decades, after the fact when the trial was held.”
Anderson says she wasn’t surprised when she heard of the appeal—there’s little that warrants surprise in this kind of law, she says.
“Disappointed is a better word,” she says.
But it was more than disappointing for Brown. “It was a really a black day,” Brown says. “It was like being pronounced cancer-free, and then, bam! You’re in third stage again.”
Brown’s fate now hangs in the balance of a Utah Supreme Court decision, expected any day now, on whether her exoneration will be upheld. At stake is half a million dollars, payable to Brown, and a clean record. If the appeal goes against Brown and her innocence is not upheld, there are no guarantees she won’t return to prison. Shurtleff previously said he didn’t want that to happen, but he couldn’t rule it out, either.
The decision will have a bigger policy impact in Utah, according to the Attorney General’s Office. “If the Utah Supreme Court upholds the factual-innocence court’s decision, it will set the bar far too low for establishing factual innocence,” wrote Assistant Attorney General Christopher Ballard in a recent e-mail.
Anderson says the Attorney General’s Office’s concerns about a flood of prisoners clogging the system as a result of Brown’s ruling are unfounded. “This decision will affect Debra, and Debra alone,” Anderson says.
Getting Its Act Together
Though the Attorney General’s Office and the Rocky Mountain Innocence Center are now at apparent odds, the legislation that made Brown’s case possible was the result of more than a year of collaboration between the two entities.
David Litvack, a former Democratic state representative and sponsor of the original iteration of the law, says there was always consensus on the intent of the 2008 Post-Conviction Remedies Act. But, he adds, the attorneys general were worried that requirements for trial were not strict enough.
The act has since gone through several amendments, the latest one in 2013, that have created stricter requirements for how cases are looked at before and after a trial. A judge requires new evidence in each petition and can dismiss an innocence petition before reaching trial.
Anderson says the Attorney General’s Office even proposed repealing the statute because they thought it would require too much work to amend.
“We strongly resisted that push” and supported the amendments so as not to lose the statute, Anderson says.
Anderson rebuffs the state’s point that it’s possible for prisoners to abuse the law. “It is a very strong statute and very strict,” she says. The RMIC gets 20 to 25 requests for review per month but only chooses two or three per year to investigate.
At the same time, Utah’s factual-innocence statute is very progressive, Anderson says, relative to the rest of the country. Utah is the only state without a time limit on filing an innocence claim, and one of only two states that has a non-DNA factual-innocence statute, meaning one can have a trial that relies on new evidence that is not DNA. The Innocence Project, a national organization, estimates that DNA is available in only 5 to 10 percent of innocence cases.
But there’s more at stake than guilty prisoners abusing the law to get out of prison. The Post-Conviction Remedies Act compensates those wrongfully imprisoned for the amount of a non-farm wage at the time of imprisonment, which, in Brown’s case, was around $36,000 per year for up to 15 years. Included in the 2012 amendment to Post-Conviction Remedies Act is a provision whereby the state does not compensate the relatives of a person who’s been posthumously found factually innocent. That amendment was brought about by the case of Jed Gressman, who was found innocent of sexual assault after spending three years in prison but then passed away. A 2013 amendment does allow for a spouse to collect remedies.
The payment of the more than a half-million dollars owed to Brown has been postponed until a decision on the appeal is reached.
But in a May 26, 2011, press conference, Shurtleff insisted his office’s decision to appeal Brown’s innocence was not related to compensation. “This has nothing to do, as some are suggesting, including those with Rocky Mountain, with the fact we do not want to pay Debra Brown money,” he said.
Burden of Proof
The Rocky Mountain Innocence Center’s Anderson first heard of Debra Brown when she got a call from a prison volunteer and former court clerk.
“There is a case of a woman here and I have no doubt in my mind she is innocent,” Anderson remembers the woman saying.
Anderson went to meet Brown in prison and asked her to write a letter formally asking for representation.
“I decided it was a very worthwhile cause,” says Alan Sullivan, Brown’s attorney with the RMIC.
At first, the RMIC sought DNA testing, but the results were indeterminate. Still, the RMIC found plenty wrong with how Brown’s original case had been handled.
Brown’s case is complex—the appeal is hundreds of pages of briefs. In a factual-innocence hearing, the burden of proof is flipped on its head. Instead of the state proving Brown committed murder, now she must prove she didn’t. And, according to the state, she can’t just show she didn’t kill her boss, Lael Brown (no relation) on the morning of Saturday, Nov. 7, 1993.
“Rather, she must affirmatively show she did not kill Lael Brown at any time,” according to court documents.
Anderson doesn’t agree. She notes that the state was sure about the time of Lael Brown’s death in the original trial. “I think they are scrambling,” Anderson says. “They don’t get to turn around and change their theory.”
According to court testimony, when police arrived at 75-year-old Lael Brown’s house on the morning of Sunday, Nov. 7, 1993, they found 36-year-old Debra Brown, who had called police, outside the house and hysterical. On the front steps was an untouched bowl of soup that Debra says she’d left the day before because Lael wasn’t feeling well.
Inside, Lael lay tucked in bed, dead from three gunshot wounds. Missing were his wallet (as a Logan landlord, he was known to carry large amounts of cash), his Colt Woodsman .22 (the probable murder weapon) and possibly some bank statements and checks.
Debra had been forging over $3,000 worth of checks from Lael before his death. She at first denied this but now admits it. She said in court in 2011 that she was scared at the time and “didn’t walk with a lot of integrity back then.”
At the trial in 1995, the prosecution had argued that only those bank statements, revealing Debra’s forgeries, were missing from Lael’s home, evidence of Debra’s motive.
But Debra’s RMIC lawyers doubt the bank statements were stolen. According to court documents, the detective who worked on the case said Lael’s bank statements, along with his other possessions in his unkempt house, were turned directly over to Lael’s family, and it was through them that police determined which statements were missing. While some missing statements did show Brown’s forgeries, months of statements that also revealed Debra’s forgeries remained in Lael’s records.
Debra was presented as the only person, other than Lael, with a key and access to Lael’s home: The front door was always locked, the back door was secure and the windows were painted shut. But, according to court testimony and photographs, police had opened at least of one of the windows that was supposedly painted shut, the back door was held closed by duct tape and a knife wedged into the door jamb, and a window in the rear of the house was found broken but was never investigated.
The RMIC argues that the Logan police investigation violated Debra’s right to due process. When police arrived at Lael’s home, according to police records, Lael’s death was treated as a suicide scene, and proper homicide investigation techniques were not employed. A bloody handprint was found on a door but not photographed nor measured.
According to the RMIC, police ignored tips on other suspects, such as Bobby Sheen, a former tenant who’d been evicted by Lael Brown. Sylvan Bassett, a friend of Sheen, testified that he saw Sheen with large amounts of cash after Lael’s death, although Sheen was unemployed. Bassett also recalled Sheen sporting a gun and later telling Bassett that he’d dumped the gun in a lake—turned it into “fish food.” Bassett originally said Sheen’s gun was a Browning .22, but later said it was a Colt Woodsman .22—the same gun as the missing murder weapon. According to court documents, Bassett says that when he brought his suspicions of Sheen to Logan police, he was told if he “knew what was good for him,” he would “let it go, leave it alone.”
Sheen killed himself in 2007.
The RMIC filed five motions in 2009, four under the general provisions of the Post-Convictions Remedy Act—including ineffective counsel and denial of due process because of inadequate police investigation—and one under the factual-innocence provision, because of new evidence. The state filed for summary judgment on the four general motions because Debra missed her deadline to file—her original attorney, now dead, should have filed in the ’90s. The only claim left was factual innocence, which, in Utah, has no time limitations.
In the factual-innocence hearing, the RMIC’s goal was to prove the state’s argument of “motive, opportunity and access” wrong, point by point, using enough new evidence to warrant the new trial.
According to the original prosecution, it was determined that Lael had been killed at around 7 a.m. on Saturday, Nov. 7, the only time when Debra did not have an alibi. Debra’s alibi for the rest of the day was that she was with her then-boyfriend or her children.
Debra’s lawyers relied on a state medical examiner, past witnesses recanting their previous testimonies, and a witness, Delwin (Dale) Hall, not called in the original trial, who said Lael was in fact alive after the supposed time of death.
It’s this last revelation that the court found so convincing when granting Debra’s innocence. And it’s Hall’s evidence that’s the crux of the Supreme Court decision.
Open the Floodgates
At the center of the state’s appeal is whether Debra’s new evidence, justifying the factual-innocence trial, is really new.
Delwin Hall waited more than 16 years to give his testimony. He was on the original witness list in ’95 and says he was ready to testify that he saw Lael Brown at a cafe after the time the state said he’d been killed. But for some reason, Debra’s defense never called him.
Don Linton, the state prosecutor in the original case, even talked to Debra’s defense at the time about not calling Hall in the original case. Linton says he was told Hall would not be called.
Jensie Anderson says she thinks Hall was on the defense witness list because he was an acquaintance of Lael’s and Debra’s, but that police records that stated Hall said he’d seen Lael late Saturday had not been provided to Debra’s original defense, and they didn’t know how important Hall’s testimony was.
The state thinks Hall’s testimony is not new because he was known to Debra’s original defense.
“Brown’s trial counsel knew about Hall, had interviewed him before the trial, and decided not to call him,” wrote Assistant Attorney General Ballard in an e-mail. Therefore, the court could not properly rely on this testimony in making its factual-innocence decision.”
The RMIC argues that Debra only met with her defense for a few hours and didn’t know about Hall’s statement—so the evidence is new to her.
There’s further disagreement between the RMIC and the Attorney General’s Office about what role “new evidence” must play in petitioning the court. The state says new evidence must be the “transformative and pivotal” evidence in proving the exoneration. The RMIC believes new evidence may be used along with existing evidence.
The statute says that “viewed with all other evidence, the newly discovered evidence demonstrates that the petitioner is innocent.” And “new evidence” is defined as evidence not available to the petitioner.
The 2012 amendment, putting stricter requirements into place, does not apply to Debra’s case, although the amendment was originally intended to be retroactive. But, the RMIC says, even the more stringent requirements in the new amendments do not make new evidence the sole factor for determining innocence.
But, according to Ballard, “Even if the trial court could have properly relied on Hall’s testimony, that testimony did not establish by clear and convincing evidence that Brown did not commit the murder.” Furthermore, there was trial evidence that contradicted Hall’s claim that Lael was still alive on Saturday afternoon. In addition, Debra’s alibi for Saturday afternoon was weak since it relied on the testimony of her son, who had already lied on her behalf regarding the check forgeries.
“If we thought for a minute that that evidence was sufficient to prove Debra Brown did not kill Lael Brown, we would not be taking this appeal,” says Laura Dupaix, a criminal-appeals attorney for the Attorney General’s Office, at a May 26, 2011, press conference.
The state says that Brown’s exoneration will have an effect on future cases, leading to more petitioners seeking a review of their case for factual innocence. “We have tightened the language twice in the past, and we will continue to monitor these cases to make sure they are only used by defendants who can provide actual evidence to show they are factually innocent,” Chief Deputy Kirk Torgensen with the Attorney General’s Office wrote in an e-mail.
Shurtleff echoed Torgensen’s concerns in a recent interview with City Weekly: “It could open the door for innocence findings that are not appropriate,” he said.
But Anderson disagrees with Shurtleff’s assessment. “He is dead wrong,” she says. To Anderson’s knowledge, there have been fewer than a dozen cases filed under the factual-innocence statute since it was passed in 2008, and no cases have been filed since Brown’s May 2011 exoneration. It is very difficult to bring these cases to trial, she says.
The Attorney General’s Office confirms it has not seen an increase in petitions for factual innocence since Brown’s exoneration. Currently, the state is defending against two cases on appeal, and one is pending in district court. Debra Brown and two others—Henry Miller and Kevin George Peterson—were the only non-DNA factual-innocence cases to make it to court. All were found factually innocent.
Out of Prison
Now, two years on the outside, Brown talks over the phone about life out of prison. She’s sitting in a parked car somewhere in Idaho—“looking at a beautiful river,” she says.
Her lawyer, Alan Sullivan, cautions her against revealing where she lives and works because of threats she has received.
She describes her days spent outside with glee. She takes a bath every day in a huge bathtub, she says, then goes into her huge closet and picks out any color of clothes she wants. She makes coffee.
“And that’s just the beginning of the day,” she says.
Now 67, she drives like a teenager, blasting music, though she’s wary of the speed limit. She rides the bike her brother got her so much that she thinks her neighbors have gotten sick of her ringing the bell.
“There isn’t a day I don’t see a new bird I haven’t seen before”—she bought a bird book to keep track—“or a deer or a wild turkey or a badger down by the river,” says Brown, who now works in a wilderness area.
Brown says she filled out hundreds of job applications after leaving prison. But without getting her conviction expunged from her record, a process that is on hold and only happens if the attorney general’s appeal fails, her record says she murdered her boss.
“I’ve been blessed with a job—it wasn’t easy getting it,” Brown says. “That record haunts me.
“It’s been an awkward transition,” she continues. “I was warned it wouldn’t be a walk in the park. I tried to run at first, but that was a mistake.” Now, she’s back to taking baby steps.
“There’s been so much change,” she says. “The hardest part is technology. I’m still getting used to computers.” Banking online troubles her. She goes to her bank asking for a paper statement.
Brown describes her medical care in prison as “horrible.” She’s had to have oral surgery to correct years of ill-fitting dentures.
“But I am still alive … I can’t play the ‘woe is me,’ ” Brown says.
Despite her time in prison, she seems impossibly joyous. She says she appreciates life and feels grateful. But she wasn’t always like this. “I was a pretty hateful individual,” she says of her early days inside. “I hated all the officers just because they had a uniform on.
“One day, I had a choice,” she continues. “You can do the time or you can let it do you. You get told something long enough you almost believe it.”
If the Utah Supreme Court reverses her innocence, the Board of Pardons will decide if she goes back to prison.
As Brown waits for the Utah Supreme Court’s decision, she deals with triggers that bring her back to those years in prison. The sound of keys jingling reminds her of prison guards. She bought dark curtains for her bedroom because car lights from the parking lot remind her of a flashlight beam shining in her face. She still has nightmares of going back.
“At this point, we are hopeful and optimistic that won’t happen,” Anderson says. And if it does? “We will have to cross that bridge when we come to it,” she says.
Justin Higginbottom is a Salt Lake City freelance writer.