SALT LAKE CITY – Utah Attorney General Mark Shurtleff was in a hospital room being treated for cancer when he let emotions take over and vowed not to appeal the exoneration of an inmate serving a life sentence for a 1993 murder.
Defense attorneys, however, called Shurtleff's flip-flop on Thursday a "tragic case of sour grapes" and insisted they would prevail when the case against Debra Brown is reviewed by the Utah Supreme Court.
Shurtleff announced he was appealing a May 2 ruling by 2nd District Court Judge Michael DiReda declaring Brown "factually innocent" in the 1993 murder of her friend and employer, Lael Brown, 75. The two are not related. Lael Brown was shot in the head inside his home in Logan, about 80 miles north of Salt Lake City.
Brown, 53, is the first inmate exonerated under a 2008 Utah law allowing judges to reconsider convictions on new factual — not scientific — evidence.
Her attorneys said Brown was confident she will remain free, as she has been since May 9 when she walked out of Utah State Prison to a belated Mother's Day celebration after 17 years behind bars.
"She was disappointed, of course, but she's not going to let this get her down," brother Dave Scott said. "Deb and her family have faced 17 years of this same stuff like the public's just seeing right now. It's kind of a way of life for her."
But on Thursday, Shurtleff said he now believes, after talking with his staff and prosecutors across the state, that the judge incorrectly applied the statute that freed her by looking at evidence that was not "newly discovered."
He referred specifically to testimony by Del Hall that he had seen the victim alive the afternoon of Nov. 6, 1993, when Brown had an alibi. The state has contended the victim was killed that morning.
Shurtleff said he feared "the floodgates will open" and that every judge will become "another Monday morning quarterback" if DiReda's ruling is not appealed and the system becomes "fatally flawed."
While he acknowledged Brown was a model prisoner and would not push to have her incarcerated again — either during appeal or if her exoneration is overturned — he said prosecutors remained convinced she is guilty. He said it's important the state's high court take a look at how the 2008 law was applied.
"It's really about the process, not about Debra Brown and can't be about emotions," said Shurtleff, who had tweeted during treatment, hours after her release that he would not appeal. He issued a formal release later that night indicating his office would not appeal "in the interest of justice and mercy."
"It was very emotional, highly charged," he said of that day. "Many felt in their hearts that enough was enough, and I was one of those."
On Thursday, he was backed by 26 of the state's 29 county attorneys, as well as the original prosecutor from Cache County, when he announced he had changed his mind. "I knew about the case, but I had not studied the facts and had not had a chance to read the judge's decision," he said.
Lead defense attorney Alan Sullivan said letting Brown "blow in the wind" again is unfair.
"The attorney general told us this morning it's not about Deb Brown. Then who is it about? It's all about Deb Brown," said Sullivan, who maintained DiReda's ruling was case-specific and would not set any precedent.
Jensie Anderson, board president of the Rocky Mountain Innocence Center that took over Brown's case nine years ago, said the 2008 statute had safeguards built in "to make sure those floodgates never open."
Katie Monroe, director of the Innocence Center, said law enforcement officials too often work zealously to defend wrongful convictions at all costs. She said Shurtleff was applauded May 9 for "having the courage to do the right thing," and called it unprecedented to see such a flip-flop.
The defense said Hall's testimony is "new evidence," as jurors who convicted Brown in 1995 weren't made aware of it. But they also said even if it weren't new evidence, the law allows judges to look at a case in its totality if a finding of innocence can be made.
Since she was freed, Brown has been gardening, bicycling, attending church and spending time with her three children and seven grandchildren, her brother said. She also has been trying to regain her identity, and has yet to secure a driver's license or even a fishing license.
"You've got to have an ID in this world that we live in," Scott said. "Today, as far as the outside world knows, Debra Brown never existed."
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