Formal appeal filed in Brown case

Jun 17 2011 - 10:53pm



SALT LAKE CITY -- The Utah Attorney General's Office filed its formal appeal Friday of an Ogden judge's decision to free Debra Brown from prison.

Second District Judge Michael DiReda last month deemed Brown innocent of a 1993 homicide for which she'd been imprisoned 17 years. The case was the first to go to trial under Utah's 2008 Factual Innocence statute, with the attorney general's staff bracing for 10 more around the state.

Attorney General Mark Shurtleff had first said, in a message posted on Twitter from his hospital bed after chemotherapy, that there would be no appeal. But at a Capitol news conference May 26, citing concerns pressed by his prosecutors and county attorneys across the state, he announced the appeal to address worries over legal precedence.

Officials stressed they had no intention of returning Brown to prison and they just want a Utah Supreme Court review to clarify legal issues.

DiReda, they said at the news conference, gave too much weight to one witness in the case, ignoring others.

"If it's that easy to overcome the evidence that convicted you, we're concerned," Laura Dupaix, head of the attorney general's appeals division, said then.

In the docketing statement, something of an outline of the appeal filed Friday with the Supreme Court, Dupaix writes of three key questions the high court needs to address.

First, can a judge base a factual innocence determination on evidence not deemed "newly discovered" as defined by the statute?

Second, in such a case can a judge "reassess or reweigh" the credibility of the evidence that brought the original conviction?

Third, did the evidence that freed Brown reach the "clear and convincing" standard required by the statute?

Brown was convicted in 1995 of the shooting death in Logan of her friend and employer, Lael Brown, who was no relation. He was shot three times in the head at close range Nov. 6, 1993.

Key to the conviction was the lack of an alibi for Debra Brown on that Saturday morning, with prosecutors claiming the slaying occurred between 7 a.m. and 10 a.m. that day.

But DiReda keyed on two witnesses who testified before him in March that they saw Lael Brown alive in a downtown Logan coffee shop later in the day. Neither had testified at the trial in 1995 because of lapses by the defense and in the police investigation.

The case was moved from Logan to Ogden after Logan judges recused themselves last year.

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