Broward County prosecutors said Tuesday that they won't try
to revive Tim Brown's conviction on appeal, but they may attempt to
put him on trial again for the 1990 murder of Sheriff's Deputy
Patrick Behan.
Realistically, there seems to be little chance
of convicting Brown again.
The case against him was
based entirely on his confession, which a federal judge has ruled
cannot be used against him, and there is no physical evidence to
link him to the crime. Brown, who is mentally retarded and was 15 at
the time, says his confession was false.
Brown's assistant
federal public defenders, Tim Day and Brenda Bryn, would not comment
on Broward State Attorney Mike Satz's decision Tuesday.
But
if the prosecution retries Brown for the ambush-style murder, the
defense will have a much stronger case. Brown's attorneys now have
law enforcement's undercover video and audio tapes of a new suspect,
Andrew Johnson, saying that he killed the deputy.
U.S.
District Judge Donald Graham has also ruled that if jurors heard all
the evidence now available against Brown, 27, and Johnson, they
would doubt Brown's guilt. That would mean
acquittal.
Johnson's eventual denial that he had anything to
do with the murder would not prevent Brown's defense from using the
undercover evidence against Johnson in Brown's trial.
"The
judge's decision is not being appealed in order to save time," said
Celia Terenzio, an assistant state attorney general who has been
handling appeals in the case for the Broward State Attorney's
Office.
Graham told prosecutors last month that they have
until June to decide if they want to prosecute Brown a second time.
On Tuesday, the prosecution asked Graham for an extra three months
-- until September -- to make that decision or release
Brown.
In court documents filed in federal court in Miami,
Terenzio wrote that state authorities need more time to continue to
investigate Behan's murder.
"We haven't yet made a decision
on whether to seek a new trial, but we are seeking more time and
hopefully [the judge] will grant that time," Terenzio said. "If not,
we will make the decision within the 90 days."
In a written
statement, Satz said he decided not to appeal after carefully
reviewing the judge's 91-page order and case law.
"We read
the court's opinion very carefully, and while we do not agree with
all of the court's conclusions, we respect the thoroughness and the
thoughtfulness of the court's decision," Satz wrote.
His
spokesman Ron Ishoy would not comment on other questions about the
decision.
The victim's brother, Sgt. Bob Behan of the Coral
Springs police department, said Tuesday that he had not been
officially notified of the decision not to appeal. He said he would
not comment until he spoke to prosecutors.
The Broward
Sheriff's Office also would not comment on the prosecution's
decision. "The attorney general's motion will speak for itself,"
said Cheryl Stopnick, a spokeswoman for Sheriff Ken Jenne.
If
prosecutors go ahead with a second trial, the case will be sent back
to Broward Circuit Court.
A bond hearing will likely be
scheduled there in the next few weeks, as Brown could be entitled to
be released while prosecutors make their decision. It is unclear how
much his bond would be or if his family could afford
it.
Brown was convicted of first-degree murder in one of the
most notorious murders of a Broward law enforcement officer in
recent memory. He has served 12 years of a life sentence.
Co-defendant Keith King, who pleaded guilty to manslaughter and
unrelated sex abuse charges, was released after serving more than
eight years in prison. He now lives in Orlando and also denies he
was involved.
The Florida Department of Law Enforcement has
been reinvestigating the Behan case since April 2002, when Gov. Jeb
Bush ordered the agency to look into the allegations about Johnson
and review Brown's allegations that he was slapped and coerced into
confessing by two Broward sheriff's detectives.
In a 75-page
report released in February, FDLE revealed little information that
was not already uncovered by Brown's public defenders. The
department concluded Johnson's claims that he killed Behan were
unsubstantiated and there was no evidence linking Johnson to the
murder, despite his accurate description of the shooting and his
estranged wife's incriminating statements about him.
But FDLE
investigators said Johnson had a motive to kill because of his
"resentment and anger" about his dismissal from a job as a Broward
sheriff's detention deputy. Johnson said on tape that he thought he
was shooting another deputy whom he blamed for his firing. That
deputy, Brian Montgomery, usually worked the zone where Behan was
killed.
The FDLE report also said there were indications of
the "leading nature" of confessions made by Brown and his
co-defendant, Keith King. There was little effort by Detectives
James Carr and Eli Thomasevich to reconcile factual inconsistencies
in the two teens' confessions.
Gov. Bush ordered a homicide
review team, including FDLE, the Broward Sheriff's Office and the
Broward State Attorney's Office, to reinvestigate the murder to see
if any witnesses or evidence was overlooked in the original
investigation. That team has not yet released any
findings.
Paula McMahon can be reached
pmcmahon@sun-sentinel.com or 954-356-4533. |
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