SALT LAKE CITY — The state’s lawyers on Tuesday told the Utah Supreme Court they disagree with an Ogden judge’s idea of “clear and convincing evidence” in freeing a woman accused of murder.
The high court heard nearly 50 minutes of oral arguments on 2nd District Judge Michael DiReda’s finding that Debra Brown was factually innocent of a 1993 homicide of her friend and employer, Lael Brown, no relation.
DiReda presided over a six-day factual innocence trial of Brown in May 2011, the first under a 2008 law that establishes the process and the cash rate for compensating wrongfully incarcerated inmates. Brown was set free after 17 years behind bars, 16 at Utah State Prison. DiReda also ruled the state owes her $570,780.
The Utah Attorney General’s Office is appealing DiReda’s exoneration and on Tuesday clashed with DiReda’s interpretation of the Factual Innocence Act and how it weighs out evidence to meet a “clear and convincing” level, or standard.
In a nutshell, the state’s lawyers feel DiReda gave too much weight to one of Brown’s witnesses, Delwin Hall.
Hall testified he saw Lael Brown still alive at 1:30 p.m. Nov. 6, 1993. That was several hours later than officials said Debra Brown killed the man.
Hall did not testify at Brown’s 1995 trial in Logan, although police had his statement.
Assistant Utah Attorney General Chris Ballard called Hall’s account uncorroborated.
“That finding should not be given deference by this court,” he told the justices.
A second man, Terry Carlsen, also testified at the factual innocence trial to seeing Lael Brown alive that same evening with his son, Mike, at the same coffee shop where Hall said he saw Lael Brown.
But Mike Brown testified he wasn’t there that night, and DiReda correctly discounted the credibility of Carlsen’s claim in his ruling freeing Brown, Ballard pointed out.
Ballard argued that left the exoneration hinging only on Hall’s testimony.
“That means any inmate could get his cellmate to sign an affidavit saying, ‘I did it,’ and he can get a hearing before a judge,” he said.
The high court took the case under advisement. A decision is expected in two to three months at the soonest.
Justice Christine Durham corrected Ballard’s depiction of the 1995 trial at one point, saying, “The state didn’t prove she was the only one with access and motive. They just never identified the others.”
Ballard, his boss Laura Dupaix, head of the attorney general’s appeals division, and Alan Sullivan, who is Brown’s lead counsel, agreed afterward the questions and statements of justices during a hearing never indicate how they are going to rule.
“I don’t think anyone tipped their hand,” Dupaix said. “Even if it seems like they’re tipping their hand, they don’t.”
Sullivan, afterward, said the case is important, even though the attorney general’s office continues to say it is not seeking to return Brown to prison.
If the high court upholds DiReda’s decision, Brown can have her record expunged, Sullivan said.
“Right now, it’s not,” he said. “It’s hard to live life with a murder conviction on your record.”
Brown, who attended the hearing, had no comments for reporters.
“All the prosecutors feel, to a man, that she did it,” Paul Murphy, attorney general spokesman, said afterward, cutting through the discussions of legal precedence and standards of evidence.
Lael Brown’s body, with three bullets to the head, was discovered by Debra Brown the evening of Nov. 6, 1993. Police initially thought the death was a suicide, leaving unsecured what was to become a crime scene.
It was 10 months later that Logan police arrested Debra Brown for the homicide, alleging she committed the crime to cover up $3,600 in forged checks.
After she was found guilty by the Logan jury, Debra Brown was sentenced to life in prison in December 1995. Her conviction was upheld on appeal. She had a 2018 parole hearing pending.