Appellate court won't rid wrong man of burden

3/25/2006

Danny Brown hoped Ohio's 6th District Court of Appeals would give him the opportunity for which he has been waiting nearly five years - a chance to prove his innocence.

Instead, the judges agreed in a 2-1 decision released yesterday that there was not enough evidence to remove him as a suspect in the 1981 rape and murder of a Toledo woman.

Not only does the decision prevent Mr. Brown from seeking a claim for wrongful imprisonment for his 19 years behind bars, but it means the Toledoan will continue to live a life in limbo. He is no longer serving time for the murder of Bobbie Russell, but he has not been exonerated for the crime either.

"This still hangs over my head. I'm still considered a suspect and it affects my whole life," Mr. Brown, 50, said. "The process is not working for me. And my life depends on the discretion of a county prosecutor."

Calling the decision "disappointing," Mr. Brown's attorney, Jon Richardson, said they will appeal the decision to the Ohio Supreme Court.

Mr. Richardson argued before the three-judge panel in October that Mr. Brown should be given the chance to state his case for wrongful imprisonment. But Lucas County prosecutors say they cannot disregard the testimony of Miss Russell's 6-year-old son, who said during the trial and has since maintained that Mr. Brown is the man who killed his mother.

Mr. Brown was released from prison in 2001 after DNA evidence found at the murder scene proved that he was not the one who had raped Miss Russell. Instead, evidence pointed to Sherman Preston, who is serving 20 years to life in prison for the 1983 killing of a Toledo woman.

Although the evidence was enough to dismiss an aggravated murder conviction against Mr. Brown, it doesn't exonerate him of the crime, the Lucas County Prosecutor said.

"I believe that the court of appeals reached the right decision," said John Weglian, chief of the special units division for the prosecutor's office. He added there is nothing new in the case against Mr. Brown, although it remains open.

Mr. Brown said he was frustrated after reading the judges' opinion, especially because of what he said were discrepancies in facts.

Also, he pointed to other Ohio cases where DNA evidence was enough to clear suspects and questioned why the prosecutor's office continues to keep his case open.

And because Mr. Brown remains a suspect, he does not meet all the criteria established for those compensated for wrongful imprisonment.

"I don't want to be angry. I just want the right thing to happen," Mr. Brown said.

In his dissent, Judge William Skow said his fellow judges failed to take into account that since his release, Mr. Brown has not been charged with a crime.

He added that the majority instead accepted the "state's definition of 'ongoing investigation' to include passive waiting for any evidence in any case that has ever been opened, regardless of whether any actual, active 'investigation' is occurring."

"The lack of activity on the part of the prosecution leads me to the inescapable conclusion that there was, in fact, no "ongoing" investigation being conducted," he wrote. "On that basis, I conclude that there is a genuine issue of material fact as to the question of whether further prosecution was really attempted in this case, or ever will be."

Contact Erica Blake at:

eblake@theblade.com

or 419-724-6076.