In their efforts to prove they had the right man locked up
for the murder of Broward Sheriff's Deputy Patrick Behan, detectives
and prosecutors may have ruined any chance of charging a more recent
suspect who has said he was the killer.
Tim Brown, 27, will
likely go free in the next few weeks after a federal judge threw out
his conviction Wednesday and gave Broward prosecutors 90 days to
decide whether to retry him. Prosecutors cannot use the only
evidence they had against Brown, a confession that his attorneys say
was false and the judge ruled was illegally obtained from the
mentally retarded teen.
With Brown's conviction
gone, the question now is whether prosecutors will ever try to go
after Andrew Johnson, the current suspect.
In an earlier
ruling, U.S. District Judge Donald Graham said it was
"inconceivable" a jury would convict Brown today if it heard all of
the evidence available. And the judge suggested that Johnson was the
real killer. "Johnson simply knows too many details [of the crime]
to be ignored," Graham wrote.
Johnson, a former detention
deputy, bragged on undercover audio and videotape that he shot Behan
outside a Pembroke Park convenience store in November 1990. But
sheriff's detectives and prosecutors from the state Attorney
General's Office have uniformly downplayed the importance of the
evidence against Johnson as they have fought to uphold Brown's
conviction.
Broward State Attorney Mike Satz complied in the
past when law enforcement lobbied him to review what detectives
think may be a wrongful conviction. But critics say his office has
been less eager to act when the evidence came from defense
attorneys.
In the past several years, at least three mentally
retarded or mentally ill people have been exonerated after being
convicted by Broward prosecutors.
In 1995, Sgt. Tim Bronson,
the head of homicide at the Fort Lauderdale Police Department,
reopened a double murder investigation nine years after a mentally
ill man, John Purvis, was sentenced to life in prison for the crime.
Purvis had confessed to other detectives.
Bronson's search
for the real killer of Susan Hamwi, 38, and her 18-month-old
daughter, Shane, began when a man confessed on his death bed that he
was hired to commit the murder. Bronson's actions led to Purvis'
release and the conviction of Hamwi's husband, Paul, who is serving
a life sentence for the contract killing.
"You start all over
from the beginning, just like it was Day One. It's a big job, but
you have to do it for the deputy's family," Bronson
said.
Purvis' attorney, Steve Witsosky, a law professor at
Nova Southeastern University, said prosecutors and detectives have
certainly damaged their case by repudiating Johnson as a credible
suspect.
"The question is, if they chose to indict Johnson,
whether a new jury could be kept from learning the arguments made to
the federal judge," Wisotsky said.
Craig Silverman, a former
prosecutor in Denver, Colo., knows what it's like to put the wrong
man in prison for a murder.
Four years after he persuaded a
jury to convict Rico Medina of murdering a man, Silverman
reinvestigated the case and got Medina out of prison in 1995.
Silverman and his boss even gave the real killer, Medina's cousin
Jesse Gomez, immunity in exchange for confessing to the
crime.
"Any decent person would feel bad for participating in
the conviction of an innocent person," Silverman said. "Once we
found what happened, we did the right thing immediately and let him
out of prison."
Medina, who was protecting his cousin, was an
accessory to the murder and served about the same amount of time he
would have if convicted of that crime.
When doubts emerge
about a conviction, law enforcement often reacts by trying to uphold
the conviction, Silverman said. But that is the wrong response, he
said.
"The job of a prosecutor is to do justice, not convict
people and keep them locked up," said Silverman. "It wasn't
difficult for me. Once I got credible information that Medina was
the wrong man, I investigated it just like it was a pending case on
my docket."
The best way to proceed, several defense
attorneys said, would be for prosecutors to treat the Johnson case
the same way they would handle any new case.
Richard
Rosenbaum, a Fort Lauderdale appellate attorney who is not involved
in the Brown case, said prosecutors should present the case against
Johnson in a neutral way to a Broward grand jury.
"The grand
jury is supposed to be the watchdog of the community," Rosenbaum
said. "If there is enough evidence, they should charge him. But if I
was his lawyer, I think I'd have a built-in defense. They locked up
someone else for the crime for 12 years, and they made a
mistake."
If Johnson is ever charged in the Behan case, a
defense attorney would undoubtedly try to use the Broward sheriff's
detectives' words in defense of Brown's conviction to attack the
charge against Johnson.
On the witness stand during Brown's
federal court hearings, Broward sheriff's Maj. Anthony Fantigrassi
went out of his way to downplay the evidence against Johnson. The
undercover tapes of Johnson had him getting many of the details
about Behan's killing right, including information that was not
widely available about the incident. Many of those details were
corroborated by forensic evidence at the scene, according to court
documents.
Johnson later said through his attorney that he
was bragging to undercover officers who he thought were criminals.
He denied killing Behan.
But Fantigrassi insisted that
Johnson's account did not match the crime scene. He also dismissed
the value of a polygraph that indicated Johnson showed deception
when he denied having shot a deputy or killing someone in authority.
A Sheriff's Office report on the undercover investigation also
dismissed the idea that Johnson was the killer.
Clearly,
Judge Graham did not buy it. And in two lengthy and detailed
decisions, he made what he called the "rare and extraordinary"
decision to find Brown "actually innocent" and overturn his
conviction.
It remains to be seen whether prosecutors who
have spent years trying to uphold Brown's conviction will continue
to pursue him or accept the judge's reasoning and charge
Johnson.
Satz declined to discuss the case in detail on
Thursday. In a written statement on Wednesday, he said he had no
desire to delay the decision and would make it in a reasonable
amount of time after considering the evidence and the
law.
"While we do not agree with all of the court's
conclusions, we respect the thoroughness and thoughtfulness of the
court's decision," Satz wrote.
Paula McMahon can be reached
pmcmahon@sun-sentinel.com or 954-356- 4533. Ardy Friedberg can be
reached at afriedberg@sun-sentinel.com or 954-356- 4843. |
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