SALT LAKE CITY -- The Utah Attorney General's Office has decided it is appealing the Debra Brown case after all, claiming an Ogden judge was wrong in exonerating her for a 1993 murder.
The announcement was to be made at a news conference this morning, on what had been an embargoed story, but in a brief message Wednesday night, attorney general spokesman Paul Murphy said the embargo has been lifted because the Rocky Mountain Innocence Center issued a news release. Murphy did not say who broke the embargo, but he said the Utah Attorney General's Office would have no further comment until today.
Brown had been in Utah State Prison since December 1995, found guilty of shooting her friend and employer three times in the head at close range.
But on May 9, 2nd District Judge Michael DiReda ordered her release after a six-day factual innocence trial. He ruled she didn't kill Lael Brown and overturned her 1995 conviction that came after a five-day trial in Logan.
Prosecutors, also on May 9, filed a formal intent to appeal with DiReda. But that same evening Attorney General Mark Shurtleff, recuperating from chemotherapy, tweeted from his hospital bed that his office would not appeal DiReda's ruling.
A legal review of the case since has changed Shurtleff's mind.
In a rare, unprecedented educational outreach, officials have been briefing the state's media on the appeal since May 18.
Assistant attorneys general have conducted 15 interviews with news outlets on condition of honoring an embargo on the story until today's news conference. Officials did not want what they see as complicated legal issues reduced to a news conference sound bite.
They also stressed they have no intention of returning Debra Brown to prison, that they just want a Utah Supreme Court review to clarify legal issues.
"We worry that it will open the floodgates, quite frankly," Laura Dupaix, head of the attorney general's appeals division, said Wednesday of DiReda's decision.
"If it's that easy to overcome the evidence that convicted you, we're concerned."
Brown's was the first Factual Innocence lawsuit to go to trial, with 10 more pending across the state.
In a nutshell, officials feel DiReda gave too much weight to one of Brown's witnesses, Delwin Hall, and not enough to one of theirs, Jennifer Nielsen.
Hall says Lael Brown was still alive at 1:30 p.m. Nov. 6, 1993, three hours later than the 1995 jury said Debra Brown killed him.
Nielsen, Lael Brown's granddaughter, says she saw Debra Brown's truck parked at Lael's house around 11:30 a.m. the day he died, and again around noon.
Nielsen intended to borrow tools from her grandfather, but didn't go in because she didn't get along with Debra Brown.
And that blows Debra Brown's alibi out of the water for that whole day, the attorney general's office contends.
Citing fine points of case law, such as standards of evidence, officials claim DiReda should have disregarded Hall's testimony, but mistakenly disregarded Nielsen's testimony.
To further confuse the issues, Hall testified at the factual innocence trial held before DiReda. He did not testify at the 1995 trial in Logan that convicted Brown.
Nielsen's testimony came at a preliminary hearing in 1993 in Logan. She didn't take the stand before DiReda this year, or at Brown's trial in 1995, her testimony being entered by transcript.
Brown's case had been developed since 2002 by a pro bono legal team from the Rocky Mountain Innocence Center at the University of Utah.
"It looks like this was based solely on the testimony of one witness," Dupaix said. "We're talking about Del Hall.
"When you stack that up against the evidence the jury heard in 1995, it's not enough."
"DiReda is a thorough, conscientious, articulate judge, and for the first 35 pages (of his 46-page decision on Brown), we don't disagree with him, until we get to Del Hall," said Scott Reed, who, with fellow Assistant Attorney General Pat Nolan, contested Brown's innocence trial.
"We disagree as to whether Del Hall's testimony is newly discovered, as required by the Factual Innocence statute, and persuasive enough to get so much credit," Reed said in a May 20 interview.
Reed said another flaw they see is DiReda's taking at face value Debra Brown's accounting of her whereabouts on the day of the killing, verified by the statements of her oldest son, as well as by a boyfriend at the time.
"The judge feels they firmly establish her whereabouts for that whole Saturday," Reed said. ""We feel that's not true. He's assuming what they say is absolutely true."
Even if Hall is correct and Debra Brown didn't kill Lael Brown the morning of Nov. 6, 1993, Reed said with her alibi splintered by Jennifer Nielsen, it means she could have committed the crime later in the day. Brown claims she was at a baseball game when Nielsen saw her truck parked at her grandfather's house.
For whatever reason, he said, DiReda completely disregarded the granddaughter's statement, making no mention of it in his decision.
"Obviously, that's the stuff appeals are made of," Reed said.
But officials were unified in saying they do not want to send the 53-year-old Brown back to prison.
"That's not the purpose for doing the appeal," Dupaix said. "We're not asking that she be put back in prison. We're not doing this to hammer on Debra Brown. It's not even our call. That would be the Board of Pardons."
If DiReda's ruling is overturned, the Board of Pardons has the authority to return Debra Brown to her cell.
"If it comes to that, we're going to recommend vigorously to the Board of Pardons that she not be put back in prison," Reed said. "That's fair. She's done 17 years."
The case now is "purely a legal question," he said. "How the case turns out determines how the other 10 will go, procedurally and legally."