By Jeffrey Deskovic
“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
As an anti-wrongful conviction advocate, I keep abreast on what is going on in the field. Just when I thought that I had seen it all, as a result of which every news item would essentially be just another example or variation of a theme, I came across two most unusual items: a mentally retarded man, adjudicated incompetent to stand trial, served 14 years in a mental hospital before the charges were dismissed, and a man who was exonerated following 17 years in prison who now owes $55,500 in back child support.
In 1993, Floyd Brown, who had the mentality of a 7-year-old, was arrested by State Bureau of Investigation Agent Mark Isley for murdering Katherine Lynch, an 80-year-old woman, in Wadesboro, North Carolina. The North Carolina State Bureau of Investigation assists local law enforcement in solving complex crimes. A witness was interviewed who stated that two men attacked the victim, giving a description of a black man, with a mustache, weighing about 150 pounds, with big lips. Brown never wore a mustache, and weighed at least 20 pounds less than 150. Nonetheless, Isley, who had seen Brown around town previously, focused on him.
Nevertheless, according to CNN, “that night detectives came for Brown at his mother’s house. They seized his spare change of clothes to test for blood and took him on a drive. Brown told his sister, Frances Staton, that they climbed the hill to Lynch’s house, a bloodied, tattered crime scene, and invited Brown inside for a look. The next day, they came for Brown, where Isley filled out a waiver of rights indicating he was willing to speak without an attorney; Brown misspelled his last name. For the next several hours, Isley and fellow agent Bill Lane took no notes during their interrogation which lasted for more than two hours.
“Brown’s memory of that day consists of a blur of hands slamming down on tables and threats that he could be executed for the crime. Then, Isley broke protocol and wrote an elaborate, detail-oriented confession in the first person that experts testified was way too detailed and organized for Brown to have ever dictated ‘verbatim’ as Isley alleged, and even beyond the average person’s capability.”
The “confession” was riddled with red flags that were ignored, particularly by the prosecutor, and the judge:
- It said that Brown stated he awoke at 6 AM; Brown can’t tell time;
- It said that he took a bath; yet the house he lived in didn’t have a bath or shower, and he never washed himself unless ordered;
- It referred to the victim as his cousin, but they are not related;
- It said that after bludgeoning the victim with a stick, he checked to see if she was alive but when doctors in the mental hospital asked him how to figure out if a person was alive or dead, he was confused.
Brown was ruled incompetent, unable to assist in his own defense, and was therefore sent to Dorothea Dix, a mental hospital, were staff worked with him for the next 14 years trying to make him competent, so he could get his day in court. Occasionally they were able to get him to repeat the explanations of how court worked, but a few hours later he would forget, and so he remained in the mental hospital, in a type of legal limbo.
Finally, attorneys Kelley Deangelus and Mike Klinkosum secured a court hearing at which, according to CNN, the chief of forensic services Mark Hazelrigg testified, “This statement is not made in a language that is typical or even possible for Mr. Brown to make spontaneously on his own.” In an affidavit, Hazelrigg continued, “Mr. Brown has a limited vocabulary. His speech is simple and repetitive. Mr. Brown does not use complete sentences … as a whole, the alleged confession is too detailed and organized for even a normally intelligent person.”
Superior Court Judge Orlando F. Hudson, Jr., freed Brown in 2007, ruling that the confession offered by Isley failed to convince him that Brown murdered anyone.
On immediate inspection, the following is obvious about this case: it should have been tossed right back at Isley by any self-respecting district attorney because the so-called “confession” was obviously something the accused was totally incapable of saying, much less writing; this was clearly an attempt to frame Brown, an available easy mark. Brown was placed in a mental hospital, an innocent man, and kept there virtually incarcerated, in a circumstance not provided for under current law and criminal procedures. This procedure of making an adjudication that an accused at a given moment is incapable of assisting in his or her own defense and therefore, having been accused, can be committed to a mental health or other facility until such time as he is capable of assisting in that defense, is only applicable to those afflicted with mental and/or physical illness, not mental retardation. Such an individual can never reasonably be expected to improve with respect to their ability to assist in their own defense and therefore has a permanent incapacity.
In cases where the accused will be a significantly developmentally disabled individual, the burden upon initial screening to determine plausibility and probable cause rests more heavily on police than it otherwise might. Alan Northrop spent 17 years in prison in Washington for first-degree rape, kidnapping and burglary, based upon a misidentification, prior to being proven innocent. According to the magazine Justice Denied, upon release he was informed that he owed $111,000 in child support for the time he was imprisoned: half of it to his ex-wife, and half to the state of Washington to reimburse it for financial assistance provided to help support the children during Northrop’s incarceration.
Following media exposure, the state agency waived the money owed to it, however Northrop still owes his ex-wife, and his check is being garnished $100 a month from his earnings at a $12 an hour job in a metal fabrication shop.
As I see it, the entitlement is not altered, but the liability should clearly shift from his shoulders to that of the state which wrongfully incarcerated him. That should be so regardless of any other findings with respect to the state’s liability for wrongfully incarcerating him. It is gratifying that media exposure is still capable of shaming state actors into doing the right thing.
Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University. Jeff is now a practicing attorney.