SALT LAKE CITY -- The Utah Attorney General's Office formally announced Thursday morning it is appealing the Debra Brown case after all, saying an Ogden judge was wrong to free her after her conviction for a 1993 murder.
And less than a half-hour later, the Rocky Mountain Innocence Center held a news conference to blast the attorney general's office as cowards and stopped just short of calling officials there liars.
The center at the University of Utah took up Brown's case in 2002. Brown had been in Utah State Prison since December 1995 after being 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 Debra Brown didn't kill Lael Brown and overturned the 1995 conviction that followed a five-day trial in Logan.
Prosecutors immediately 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 has since changed Shurtleff's mind, he explained Thursday to the media in the state Capitol.
"I spoke too soon," he said, calling it an emotional decision made before he read the judge's decision.
He went on to cite what he called the crucial facts that convicted Brown of the 1993 murder: She was the only other person with a key to the dead man's home, and only one bank statement was missing, the October statement with the checks totaling $3,500 Debra Brown had forged on Lael Brown's account. The stolen money was used by the prosecution as her motive for killing Brown.
Those depictions fueled the innocence center, three paid staff members bolstered by law students and pro bono attorneys, to lash out at the state's largest law firm.
"That is not correct," Alan Sullivan, the center's lead counsel in the case, said several times in rebutting Shurtleff's presentation. Many bank statements were stolen from Lael Brown's home, allegedly by the murderer, he said, while the October statement wasn't even mailed out until after the Nov. 6, 1993, killing.
"The whole issue of motive was removed from the case," he told reporters in the conference room of his law firm in Salt Lake City.
Katie Monroe, center director, went one step further.
"We believe the attorney general, his staff and the other officials who spoke today intentionally misled the public," she said. "The prosecution withheld evidence from Deb and her attorneys that would have made it impossible to convict her 17 years ago."
Both the center officials and the attorney general's office focused much of their time on the key witness-- Delwin Hall -- DiReda cited in his decision to free Debra Brown. Hall testified before DiReda in March this year that he told Logan police he saw Lael Brown alive four hours or more after he was supposedly killed.
But Hall never testified at the trial, which Shurtleff, his chief criminal deputy, Kirk Torgensen, and Laura Dupaix, head of his appeals division, said likely meant her defense team decided he wasn't credible, even though he was on their witness list.
Sullivan bristled in response, agreeing Hall was on the defense witness list but adding he was never approached: "There is no indication Del Hall was ever talked to by anyone from the defense."
Police withheld his statement, Sullivan said.
"It smells of sour grapes," Monroe said of the appeal decision. "It's indicative of the absence of leadership and the absence of courage we see in factual innocence cases across the country."
"It's a demonstration of pettiness," said Daniel Medwed, a U of U law professor and member of the RMIC board. "The sad part is, Deb Brown is left flapping in the wind."
Brown's was the first Factual Innocence lawsuit to go to trial, with 10 more pending across the state.
In a nutshell, the attorney general's office feels DiReda gave too much weight to one of Brown's witnesses, Hall, and not enough to one of theirs, Jennifer Nielsen.
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.
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.
"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. He was not available for Thursday's news conference because of long-established plans.
Reed said another flaw they see is DiReda's taking at face value Brown's accounting of her whereabouts on the day of the killing, verified by the statements of a boyfriend at the time and her oldest son.
"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 is overturned, the Board of Pardons has 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."
Sullivan scoffed at that idea. "One district judge is not bound by another district judge's decision."
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