Jeffrey D. Allred, Deseret News
SALT LAKE CITY — The Utah Attorney General's Office asked the Utah Supreme Court Tuesday to reverse a ruling that set Debra Brown free after serving 17 years in prison for murder and deemed her innocent.
Brown, 54, was released from prison on May 9, 2011, after being found factually innocent by 2nd District Judge Michael DiReda in connection with a shooting that left Lael Brown dead. Her 72-year-old boss and friend was found dead in his home in 1993 with three gunshot wounds to the head.
Debra Brown was convicted of murder in the case by a jury in 1995. Assistant attorney general Christopher Ballard said Tuesday that DiReda's decision was based on evidence that was neither new nor clear nor convincing — the standard he said is set by statute.
"It's got to be something, at least, that makes the court sit up," Ballard said. "It needs to be newly-discovered evidence. It can't be old evidence."
Though his office initially vacillated over whether to appeal the ruling that freed Brown, it decided the facts and the law required a review. The Rocky Mountain Innocence Center took Brown's case in 2002 and when it was presented to DiReda, it was the first hearing of its kind. Such a hearing was made possible under a 2008 law that allows for a determination of factual innocence when new evidence is discovered that could prove an individual's innocence.
"This case is going to set the benchmark for what is clear and convincing evidence of factual innocence and we think the court set that mark way too low," Ballard said. "Other cases are going to look at this case as to what is actually factual innocence and this is a court that misinterpreted the statute."
DiReda's decision hinged on Lael Brown's time of death and Debra Brown's alibi. During Debra Brown's trial, prosecutors had argued that Lael Brown had been killed the morning of Nov. 6, 1993 — a Saturday — and a full day before his body was discovered. Debra Brown had no alibi for that morning.
Two new witnesses testified at last year's evidentiary hearing that they saw Lael Brown alive that Saturday night, leading DiReda to determine that there is clear and convincing evidence that Lael Brown was still alive Saturday morning, the one time when Debra Brown would not have had an alibi. The judge said that based on testimony given by the medical examiner, it was most likely that Lael Brown actually died sometime between 9 p.m. Saturday and 3 a.m. Sunday.
Ballard said Tuesday that one of the witnesses was interviewed by attorneys before the 1995 trial and his testimony was known even if wasn't used. Even still, the notion that Lael Brown may not have been killed Saturday morning didn't necessarily mean Debra Brown was innocent.
"(Brown) has to show the evidence now is so powerful ... that it explains away all the evidence presented at trial and she did not," Ballard said. "The post-conviction court had to give deference to the jury's verdict. The issue was whether that (new) evidence so completely changed the evidentiary picture so as to be clear and convincing.
"(Innocence) must be proven by clear and convincing evidence. It's not just that she didn't kill Lael Saturday morning. That's not enough."
Brown admitted in court that she had forged upwards of $3,000 in checks, which prosecutors say was her motive to kill. And Ballard reiterated that Debra Brown was "the only one with motive, access and opportunity," a statement that was probed by the justices.
"It's perfectly conceivable that there were others who were never identified, investigated or caught," Justice Christine Durham said.
Debra Brown's attorney, Alan Sullivan, said there were, in fact, others who should have been investigated in Lael Brown's death and that the case against his client was a circumstantial one. He said the notion that Deb Brown was the only one who could enter the home without forcing entry was irrelevant, because the back door of Lael Brown's home didn't even lock properly.
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