A System on Trial : Sentencing the Wrong Man to Die

If there was a moment during the 13 years he sat on Death Row that gave Joseph Green Brown particular pause, it came when authorities arrived to measure him for a burial suit.

Brown had never thought he would die in prison. Now it suddenly occurred to him: These people are trying to kill me.

Only through a twist or two of fate, a well-timed phone call and an aptly chosen argument did they fail.

30 Feet From Chair

About 15 hours before Brown was to die, as he sat in a death watch cell 30 feet from the electric chair at Florida State Prison near Starke, a federal judge issued a stay. Then, in March, 1986, the U.S. 11th Circuit Court of Appeals reversed Brown’s conviction on a rape and murder charge, finding that the prosecutor had knowingly allowed and exploited false testimony from the state’s star witness.

That star witness had long since recanted his testimony against Brown. Without him, prosecutors here in Hillsborough County last March decided that they had no case against Brown. There would be no retrial.

At 7 p.m. on March 5, a husky, medium-sized black man of 37 years found himself standing alone in the unadorned lobby of the Hillsborough County Jail. He had with him his only possessions--a large cardboard box of legal papers and 75 cents, the total of his personal prison account.

Brown’s latest lawyer, Tom McCoun, finally arrived to pick him up. “Welcome to the free world,” McCoun said.

Many Implications

The story of Joseph Green Brown offers all manner of issues and implications, and most have been chewed on by one group or another in this region.

There are those who see Brown’s experience as a cautionary tale about abusive, overzealous police detectives and prosecutors. There are those who point out that a young, inexperienced court-appointed defense attorney with a poor black client was no match for a crafty, veteran prosecutor. There are those who criticize an adversary system that drives lawyers more toward winning than to realizing justice.

But whatever else Brown’s experience suggests, it highlights the disturbing notion that the legal system does not always convict the right man in death penalty cases.

“This case really ought to make people take pause,” McCoun said. “It is possible that a person who is innocent can be sentenced to death and very likely could be executed.”

About 343 people have been wrongly convicted of offenses punishable by death in this country this century, and 25 were executed, according to a study on capital punishment issued in 1985 by Hugo A. Bedau of Tufts University and Michael L. Radelet of the University of Florida.

“This one got uncovered is all,” said Brown’s original trial lawyer, J. Michael Shea. “It makes me wonder how many other cases like this there are. What happens to cases when there are no bulldogs tugging away after the trial, like we had with this one? This case is the best example I know to show what’s wrong with the death penalty.”

Brown had no criminal record when he arrived in Tampa in 1973, at the age of 23, but that was only because he had never been caught. Reared in a foster home in Charleston, S.C., Brown knew a fair share about guns and robberies.

“I was no angel,” he said, “but I had never physically hurt anyone intentionally.”

Forced Woman to Disrobe

He crossed that line the night of July 7, 1973. Around midnight, he and a companion, Ronald Floyd, then 18, forced open a sliding glass door in a Holiday Inn motel room here and robbed a couple. During the robbery, Brown forced the woman to disrobe and began to molest her. She begged him to stop. Brown looked at her.

According to a police report, Brown said: “My mother had been hurt once. I never wanted to hurt a lady, no matter who she was.”

He backed away.

The next day, a Sunday, at 1:45 p.m., Brown hailed a police car passing by on the street. He told the officer he had information about three robberies. He told the officer where he could find the gun used in the Holiday Inn robbery. He named Floyd as his accomplice.

“Remorse. I was feeling remorse,” Brown said recently. “It was one thing to commit a robbery, but. . . .”

Detective Dropped By

As Brown and Floyd sat in the Hillsborough County Jail the summer and fall of 1973, police detective William Bebler took to dropping by on occasion to question them. At times he pulled one or the other from jail and drove the streets of Tampa, getting them to point out places where they had been.

That was Bebler’s style. Around the courthouse and in the streets he was known by his nickname, Bebop. He reminded the prosecutors of the television detective Columbo played by Peter Falk. If you knew Bebop, they would say years later when it had become an issue, you would know that he doesn’t intimidate. Bebop, they would say with appreciative smiles, is a plain, down-home type of guy.

Bebler had on his mind more than a motel robbery. Earlene Barksdale, 34, had been robbed, raped and murdered in her children’s clothes store, the Just Kids Shoppe on Busch Boulevard, the same day as the Holiday Inn robbery. The timing and the sexual assaults seemed to link the two cases.

Bebler was just fishing, he knew that, but why not? He was making no headway in the murder case.

He told Brown and Floyd both the same thing: If you weren’t the one who did the actual shooting, if you didn’t actually pull the trigger in the Barksdale murder, you can help yourself. We can assist you.

Brown denied any knowledge of the Barksdale murder.

Known Only 10 Days

Floyd was steamed at Brown for fingering him on the robbery. They could have walked, he figured. Floyd had known Brown only 10 days. Floyd wavered.

Soon after, a young local attorney, Michael Shea, walked into the judges’ chambers here at the downtown courthouse. He was asked if he could take over a case from the public defender, who had a conflict with two defendants.

Shea then was 30 years old, with just three jury trials under his belt. The court would pay him $2,800 for this one.

He considered. It was armed robbery at a Holiday Inn. Both guys had already confessed. It’s a walk, he figured.

Down at the jail, though, he learned that his man’s bail was big enough to choke a horse. What gives, Shea asked around the police station. Don’t you know, they answered. That Joe Brown’s got a murder charge coming.

What have I got myself into, Shea wondered.

Then he met Brown.

“Mr. Shea,” Brown said. “I didn’t do this. I’m innocent.”

Drove Him Past Site

Bebler kept at Floyd throughout the fall. More than once, he drove Floyd past the Just Kids site.

They talked about the layout inside, the setting outside. There is dispute now over who did the talking and who the listening. Bebler remembers being impressed with Floyd’s detail. Floyd says the detail all came from Bebop.

If you weren’t the triggerman and you tell the truth, we won’t prosecute you for the murder, Bebler said.

There is disagreement, but it is likely Bebler also said: You can help yourself on the Holiday Inn robbery.

The prosecutor says flatly no such deal was made. Floyd says yes. Bebler, now semi-retired to his 2 1/2 acres just east of Tampa, said in a deposition that his memory was unclear on whether he made that offer. Then he said: “I’m sure I did.”

Floyd Finally Turned

In an interrogation room with Bebler on Oct. 24, 1973, 3 1/2 months after his arrest, Floyd finally turned. I have information on the murder, he told Bebler. On Nov. 1, he gave a formal statement.

Floyd’s story: He had driven to the Just Kids Shoppe with Brown and a third man identified only as “Poochie.” He waited in the car, parked across the street, while the other two entered the store. Floyd noticed a bulge in Brown’s shirt that looked like a gun. About 15 minutes later, Floyd went to the door of the shop to look in, heard a shot, entered the store and saw the foot of a body lying on the floor. Brown and Poochie emerged from the shop, Brown bringing with him articles of new clothing, and all three men jumped in the car and drove away.

While in the car, Floyd said, Poochie told Brown: “Man, you didn’t have to do that.”

The next day, Floyd said, he, Brown and a third man, Raymond Venson, together heard a radio newscast about the Barksdale murder. Brown admitted then that he had killed the woman, Floyd said.

Six days after Floyd gave this statement, a grand jury indicted Brown for murder.

Veteran Prosecutor

The trial began June 24, 1974, and lasted four days. Shea faced Assistant State’s Atty. Robert Bonanno, a veteran prosecutor with about 40 jury trials behind him. The nature of the courtroom would make them adversaries, each out to win his case. It is the particular assumption of the legal system that, through this competition, elusive questions will be successfully hammered into firm answers.

Brown presented an alibi defense, supported by the testimony of a girlfriend and her elderly mother, who testified that he was with them, watching television, the day of the murder. He knew the TV station, he knew the plot of the movie.

Shea considered the old lady’s testimony the clincher. “A Bible-totin’ ol’ black woman in a wheelchair,” he would recall years later. “She’d go to her grave sooner than lie. She’d lie for nobody.”

Floyd told his story, and Raymond Venson corroborated what Brown had said after hearing the radio newscast. Bonanno thought Floyd an excellent witness.

This testimony, however, made up almost the whole of the prosecutor’s case.

Put on ‘Negative Case’

Bonanno had found no fingerprints, no matching blood, no pubic hair samples. So he put on what he proudly described years later as a “negative case.” He showed the jury all the police efforts to find evidence. The dusting, the aerial photos from four angles, they had produced nothing, but they demonstrated that the effort had been made. After watching TV courtroom shows for years, the jurors expected that, Bonanno knew.

Bonanno did have a gun, the .38-caliber Smith & Wesson that Brown had used at the Holiday Inn, the gun Brown had directed police to when he hailed their patrol car. The bullet retrieved from Barksdale’s body was a .38. But it was a .38 “special” slug, which cannot fit into the chamber of a regular .38 Smith & Wesson. The state had an FBI lab report telling them just that. The Holiday Inn gun could not be the murder weapon.

It is fair to say that in this matter Bonanno distinguished himself more as an adversary than as a seeker of truth. In his opening statement to the jury, he said: “We also have testimony relating to a weapon which the state contends was the murder weapon in this particular case.”

On his pretrial list of witnesses he included the FBI agent who had written the ballistics report, Courtland Cunningham.

Would Make Terrific Show

Shea knew of the FBI report. He planned, during his cross-examination of the FBI agent, a dramatic physical demonstration. He would ask the agent to put a .38 special cartridge in the Smith & Wesson. It wouldn’t fit. That would make for a terrific jury show.

But Shea made a mistake. Because the prosecutor had already listed Cunningham as a witness, Shea did not himself subpoena the FBI agent. He just waited for the prosecutor to call him to the stand.

Bonanno never did. Instead, on the trial’s last day, he released the FBI agent back to the vacation he had been summoned from. He did this without notifying Shea.

Shea, frantic, located Cunningham via marine radio, fishing out on the Gulf Stream. He begged Judge Robert W. Rawlins Jr. for a continuance so he could subpoena the agent himself.

Rawlins soundly criticized Shea for failing to subpoena Cunningham but refused to grant a continuance. He would only allow Shea to introduce as a defense exhibit the FBI report itself.

Remembers Judge’s Words

Shea to this day remembers the judge’s words to him. “Mr. Shea,” Rawlins said, “I assure you we are going to finish this case tomorrow.”

The written report needed some explaining from the witness stand. Shea tried vainly to elicit such testimony from Bebler. Bebler said he just had no knowledge of the difference between a regular .38 bullet and a .38 special bullet.

Years later, Bebler allowed that he always knew that the Holiday Inn gun was not the murder weapon. “If it was,” he said, “we would never have recovered it.”

In his closing argument, Bonanno emphasized to the jury that Brown carried a .38 pistol in the Holiday Inn robbery and a .38 was used in the Barksdale murder. Of the FBI gun report, he said: “They say it’s a .38-caliber pistol, .38-caliber bullet. We have a .38-caliber pistol.”

Shea, despairing, moved for a mistrial based on his own incompetence in failing to subpoena the FBI agent. This the judge also denied.

‘$10 or $12 an Hour’

“I was young; I had only practiced two years,” Shea said recently. “I don’t care what a lawyer is like, the first five or six years, you’re still learning. . . . My whole budget was $3,500. That comes down to $10 or $12 an hour. There is a big difference between a poor person in this situation as opposed to a person who can afford top counsel. The best defense attorneys don’t handle volume. They take a few cases and charge fees ranging from $50,000 to $300,000.”

Shea had but one card left to play. He tried to cast doubt on Floyd’s testimony. He asked Floyd if he had made any plea agreement with the state.

No, Floyd said.

At that time, a confidential pre-sentencing report rested in the Holiday Inn case file. It contained this sentence: “Detective Bebler has requested the sentence on Raymond Floyd and Joseph Green Brown be postponed until the Barksdale murder case is developed.”

Shea knew nothing of this document.

Approaching the witness stand, Shea pointed out to Floyd that he had pleaded guilty to the motel robbery in October, about nine months earlier, but had not yet been sentenced. Shea asked Floyd: Do you have any knowledge of why you haven’t been sentenced in this case?

Floyd said: “No, I haven’t.”

Questioned About Promises

Shea also asked Floyd if the state had made any promises or agreements with him in the present murder case.

“Not to my knowledge they haven’t,” Floyd said.

Have you been given immunity in this crime, Shea asked.

“No, I have not, not as I know of,” Floyd said.

Are you afraid that you might be charged with this crime, Shea asked.

“Yes, I am,” Floyd said.

You are absolutely certain that you haven’t been given any immunity, is that correct?

“I’m certain.”

So you’ve just decided to cleanse your soul and take the chances of whether the State of Florida is going to charge you with this murder?

“Yes.”

In his closing argument to the jury, Bonanno pointedly referred to all this.

He said: “There was an attempt made by defense counsel to impeach Ronald Floyd. You all heard that. Impeach means to reduce his credibility somehow by showing that for some reason or another he isn’t telling the truth. And I submit that there (have) been no promises made to Ronald Floyd for his testifying in this case. He testified to that from the witness stand. He has absolutely nothing to gain by testifying against this particular individual.”

Aggressive Work

Looking through the trial record years later, preparing for a possible second trial, defense attorney Tom McCoun thought to himself: A good aggressive piece of work by the prosecutor. Except that what was going before the jury was not the truth.

On June 28, 1974, Brown was convicted of murder. On July 3, he was sentenced to death.

That night, Shea went home and drank a fifth of Scotch.

Five days later, the sentences for the Holiday Inn robbery were finally rendered. Brown got 20 years. Floyd got probation.

Floyd did not stay free for long. Within a month, he was picked up in a bar carrying a gun. Probation revoked, he was sentenced to 99 years in jail.

Shea visited him in the county jail one day, on his way to see Brown. Less than two months had passed since the trial. Shea says that Floyd admitted right then that he had lied at the trial. But that conversation, whatever it involved, remained a private matter. Floyd would not sign an affidavit.

Visited Floyd Again

Seven months later, on March 6, 1975, Shea visited Floyd again. Floyd was now in the Union Correctional Institute, near Starke in northern Florida, just a stone’s throw across a small river from the Florida State Prison’s maximum security facility where Brown sat on Death Row. Shea thought to himself: They are just a mile or two apart.

The prison authorities brought Floyd into a big open room.

“Floyd, Brown is still sitting on Death Row,” Shea said.

“Well, I sure have felt bad,” Floyd said.

Shea had brought with him a typed affidavit, summarizing what Floyd had told him months before. Floyd’s testimony against Brown was false, the affidavit said, given in exchange for “favorable consideration” in both the Barksdale and motel cases. Floyd studied the document for a while. Then he signed it.

On June 11, 1975, by order of the Florida Supreme Court, the trial judge held an evidentiary hearing to consider Shea’s request for a new trial based on Floyd’s affidavit.

It is fair to say Judge Rawlins did not seem eager for Floyd to recant. Rawlins appointed a public defender to represent Floyd and personally advised him, from the bench, of his constitutional rights and risk of being charged with perjury.

Said Affidavit Was True

Floyd said he understood and did not need to confer with his counsel. He identified the affidavit, admitted signing it and said its contents were true.

When the prosecutor asked directly about Floyd’s trial testimony, the judge again interrupted. He said:

“Let me again warn you, Mr. Floyd, you do not have to answer that question. You can claim your privilege under the Fifth Amendment . . . if it tends to incriminate you, and it’s obvious to the court that an answer to that question could incriminate you. I also warn you that any statement you make . . . can be used in any further prosecution for any charges . . . most specifically perjury charges. . . .”

Floyd continued to be questioned on the stand. Again, the judge interrupted, addressing Floyd’s public defender:

“Mr. Murman, for the record, being the attorney for this witness, I am going to recess now and have you counsel with him. And I wish you would explain to him the consequences of perjury in a capital case. Perjury in a capital case carries a maximum penalty, I believe, under present Florida statutes, of life imprisonment. . . .”

30-Year Penalty

The court then recessed. Upon returning, Rawlins corrected his misstatement--the penalty for perjury in a capital case in Florida is 30 years, not life--then called another recess.

Back on the stand, Floyd finally wavered. He retracted the portion of his affidavit that said his trial testimony against Brown was false. But he reaffirmed the part about a deal being struck with the prosecution.

Rawlins, satisfied, prepared to end the hearing. Bonanno rose and summarized the testimony the state would have provided if the hearing had continued. He denied the existence of a deal in the Holiday Inn case but acknowledged that the state had agreed not to prosecute Floyd in the Barksdale murder if he would testify, tell the truth and pass a polygraph.

Judge Rawlins said he would recommend that no perjury proceedings be instituted against Floyd. He also announced that he intended to deny Brown’s motion for a new trial.

In all, Brown lost at three post-trial evidentiary hearings and three times was turned down by the Florida Supreme Court.

Visits Tailed Off

For years, Shea had been driving the 360-mile round trip upstate to visit Brown near Starke. He could not afford to ignore his other cases--the state was paying him just $2,400 for the appeals--so he usually went on weekends or nights. Then the prison rules changed, allowing attorney meetings only during business hours. Shea’s visits tailed off.

Brown’s string appeared to be played out until the phone rang one morning in mid-1981 at the Stamford, Conn., law offices of Richard Blumenthal. He had recently resigned as Connecticut’s U.S. attorney to join a private practice. Deborah Fins, attorney for death penalty litigation at the NAACP Legal Defense and Education Fund, wanted to know if he would take over Brown’s appeal.

That she called Blumenthal at all was a matter of chance. Blumenthal was not an obvious choice--he had been a prosecutor, with little experience in criminal defense work and none in a capital case. Another lawyer then handling a death penalty case knew him from law school and happened to suggest his name.

Blumenthal was intrigued. He respected the NAACP and wanted to make a contribution. He was aware of the need for attorneys to represent Death Row inmates. Fin’s summary of the case led him to question whether justice had been done.

Absorbed Enormous Cost

Perhaps just as important, Blumenthal was working at a law firm that was willing and able to absorb, without any compensation, the enormous cost of handling a Death Row appeal. Blumenthal later estimated his costs at $400,000 in time and $50,000 in out-of-pocket expenses.

Blumenthal agreed to take over the case.

Brown, talking about his experience over dinner recently, said simply: “I am a real Dick Blumenthal fan.”

He has reason.

In 1982, Bob Graham, then Florida’s governor and now a U.S. senator, rejected the petition for clemency filed by Blumenthal. On Sept. 23, 1983, Graham signed Brown’s death warrant. On Oct. 12, the Florida Supreme Court denied a final appeal. The execution was scheduled for Oct. 18.

Blumenthal, with Shea’s help, now turned to the past.

Floyd Was Free

Ronald Floyd, after serving seven years of his 99-year sentence, had been freed in 1981. He was living in Miami, reporting to a parole officer. One day in late September, 1983, the parole officer called Floyd. Some people, including a fellow named Shea, wanted to see him. They wanted to talk about Joseph Green Brown.

Floyd remembered Shea, remembered their meeting years before. He was two years removed from prison now, with no reason to risk a perjury charge. And yet, he would explain later, that whole thing was still burning heavily in his mind.

Yeah, OK, he told the parole officer. I’ll see them.

On Oct. 4, two weeks before Brown’s scheduled execution, Floyd met in Miami with Shea and an associate of Blumenthal’s, J. Marion Moorman. This time, they videotaped the deposition.

Yes, Floyd said, he had talked to the public defender’s office and knew that there was a chance he could be prosecuted for perjury as a result of the new statement he was about to give. He was willing.

Floyd told his story--much the same one he tried to tell in 1975.

Invented ‘Poochie’

He had been angry at Brown. Bebler kept coming back, taking him out of jail, driving to the murder site, showing him pictures of the store’s layout. He had never been there before Bebler took him. He was promised he would get “paper” on the Holiday Inn case--probation. He was promised that he would not be prosecuted for the Barksdale murder if he testified against Brown. He had invented “Poochie” because the police wanted a third accomplice. He had lied at the trial.

“I went along with the program,” he said.

His 1975 affidavit was true. He retracted part of that because the judge and prosecutor were angry and threatened him. “I was given a good opportunity to back away. . . . I backed away.”

What were his feelings then about Brown getting the chair, Shea asked.

“I had a conscience problem,” Floyd said. “A real weight problem.”

Has that continued to be a problem, Shea asked.

“As of today, it’s not,” Floyd said.

‘My Mind Is Clear’

He knew he might now be charged with perjury. “My mind is clear,” he said. “So whatever comes, I’m just going to have to accept it.”

One month later, Floyd in fact was arrested and charged with perjury. He eventually drew a sentence of five years’ probation.

Blumenthal had exhausted all state legal remedies. He could turn only to the federal judiciary. On Oct. 14, with four days to go, Blumenthal filed a petition for a writ of habeas corpus , together with an application for a stay of execution, in the Tampa division of the U.S. District Court.

On Death Row, Brown was getting measured for his burial suit. That made him angrier than anything ever had. It seemed so cold. Brown thought to himself: the audacity.

He was moved on Oct. 17 to the death watch cell but could never bring himself to order a last meal. He was to be executed at 7 a.m. the next day. At 9 p.m., just as the day turned from dusk to pitch black outside, he was called to the phone.

“You got the stay,” Blumenthal said.

‘Stay Was Granted’

U.S. District Judge Terrell Hodges had granted the stay only grudgingly. This was the case’s first appearance on the federal level, the judge observed, filed just two days after state remedies were exhausted. “Of necessity, therefore, the stay was granted,” he wrote.

Hodges chose not to hold an oral hearing. He also chose not to read or view Floyd’s videotaped deposition. After reading the court record in the case and the lawyers’ briefs, he issued a ruling on March 5, 1986. He wrote: “I have concluded that none of the claims have merit and that the petition should be denied.”

Blumenthal had one last avenue, an appeal of the district court’s decision to the U.S. 11th Circuit Court of Appeals. Here he faced a critical task.

Appellate judges often are interested in a case for particular constitutional issues they raise. What did the 11th Circuit want to hear about?

After six drafts of his brief, Blumenthal finally drew his focus on a 1972 Supreme Court case, Giglio v. United States, where the justices ruled a conviction by the knowing use of perjured testimony must be set aside if there is “any reasonable likelihood” that the false testimony “could have affected the jury’s verdict.”

Focus on Giglio

At the oral hearing before the 11th Circuit panel on Sept. 10, 1985, Blumenthal rose with some trepidation. We intend to focus chiefly here on the Giglio decision, he began.

The chief judge, John C. Godbold, interrupted.

Good, Godbold told Blumenthal. That is what we are interested in too.

At the Florida State Prison, Brown was again summoned to the phone on March 17, 1986.

“Your conviction has been overturned,” Blumenthal said.

The 11th Circuit in the end did not concern itself with the FBI ballistics report or the Holiday Inn case--although the judges thought the sentencing there quite curious. The 11th Circuit found the state’s undisclosed agreement with Floyd in the Barksdale murder case to be sufficient grounds, by itself, for a reversal.

‘Allowed False Testimony’

The judges were reversing, they wrote, “because the prosecution knowingly allowed material false testimony to be introduced at trial, failed to step forward and make the falsity known, and knowingly exploited the false testimony in its closing argument to the jury, in violation of the due process clause of the 14th Amendment.”

Brown was transferred from Starke to the Hillsborough County Jail, where McCoun was appointed his new attorney. Brown had already served more than the maximum on the Holiday Inn robbery conviction. If the state wanted to keep him behind bars, it would have to retry him. This question fell to the Hillsborough County state’s attorney’s office. There the case was assigned to Assistant State’s Atty. Henry W. Lavendera.

Lavendera, studying the file, thought: Even back in 1974, this had been a circumstantial case. The entire case had hinged on Floyd.

Lavendera knew that he could use Floyd’s original trial testimony at a new trial, even if Floyd was now recanting. But that would not be enough without other evidence. Floyd would get roasted on the stand.

There were other problems. It did not seem to Lavendera that he had the right murder weapon. In a new statement obtained by the prosecutor’s own investigators, Raymond Venson seemed to back away from his corroborating trial testimony about the radio newscast. Venson suggested that he too had been pressured and programmed by Bebler. In another statement, a former cell mate of Brown’s described similar methods used by Bebler.

New Prosecutor Unsure

Lavendera was not sure whether Brown was innocent or guilty. Bonanno believed him guilty, and Lavendera had to respect that judgment. And yet, looking at the trial record, the prosecutor thought: I know a dozen lawyers in town who could have rammed this case right down the state’s throat.

They would need yet another deposition from Floyd. He was by then back in jail, having again violated probation.

Floyd was transferred now to the Hillsborough County Jail. This move was for the purposes of the new deposition, but it also accomplished something else. For the first time in a dozen years, Brown and Floyd were in the same building.

Brown saw Floyd first. Floyd did not recognize him. “Hey, it’s me,” Brown said softly.

“Hey, old man, I’m giving your lawyer a deposition,” Floyd said.

On Feb. 19, under questioning from Lavendera and McCoun, Floyd stuck to his recantation.

Ran the Polygraph

OK, Lavendera decided, let’s put Floyd on the box. The state’s own examiner, an expert ex-FBI man, ran the polygraph. On March 5, the expert reported his conclusion: Floyd was telling the truth.

The news leaked that same day to a local television station here. Lavendera learned a story would be broadcast that night.

He and his boss, State’s Atty. Bill James, agreed: Let’s not appear to be reacting to the TV news. Let’s do it ourselves.

At 5 p.m., while mopping a jail house floor, Brown was summoned to the phone.

“You’re free,” McCoun said.

Brown figured that the paper work alone would take four weeks. He went back to mopping.

‘They’re Letting Me Out’

Half an hour later, they called out his name and told him to get his stuff together. Brown walked along the second floor catwalk to Floyd’s cell. “Hey,” he said. “They’re letting me out. Thank you.”

He had been 23 when he was last out from behind bars. Now he was 37. At McCoun’s office that night, Brown held a beer bottle in the air, looked at it, sipped, then looked some more. McCoun left him later that night at a local motel. Friends picked up Brown the next morning and drove him north to Gainesville.

Three days later, McCoun received a postcard from there. “I’m doing much better than I thought I would,” Brown wrote. “My biggest problem is learning how to deal with being pampered.”

There are those here who insist that the system did not fail in the matter of Joseph Green Brown. They point out that the appeals process did free him. “They played it close. There was a little excitement. But the system worked,” Lavendera said.

Brown, having spent 13 years on Death Row, sees it differently. Raised in a foster home since he was 9, he completed only the eighth grade, but a program of self-education and reading in prison has left him an articulate, if guardedly restrained man. At a friend’s home and over dinner at a Gainesville restaurant one recent evening, Brown spoke softly and carefully.

‘System Doesn’t Work’

He said: “I have firsthand experience that the system doesn’t work. Only certain people saved me. The judicial system tried, convicted and sentenced me to death. . . . How do you know a person is guilty? Are we willing to have a sentence with such finality, when that question looms? How can we tell whether a person is guilty or not? Are we that infallible? Are we that sure?”

Beyond the debate over whether the system worked remains the question of why the system worked as it did. Of all the responses to the Brown case, none is more telling than that of lawyers here as they analyze this issue.

More blame has been pointed at Shea than at Bonanno. Bonanno, in fact, draws a number of admiring comments. Bonanno was just doing his job, it is said, an aggressively good job. What he did was just part of the system.

Even Shea said that. So did McCoun.

“The defense attorney was simply overwhelmed,” McCoun said. “I was a prosecutor for three years. I was expected to be aggressive. The defense attorney must respond. The quality and personalities of individuals involved had a clear outcome in this case. That used to be so all the time. Now it is harder, but I can’t call that an aberration. It happens.”

Most likely, it is for this reason that Bonanno professes to remain perplexed about the outcome of the Brown case. He is, as it happens, now a Hillsborough County circuit judge, one widely admired in the legal community. In interviews, he offers no apologies or regrets. Sitting in his chambers one morning recently, Judge Bonanno posed a question.

“They said I should have told (about the plea deal),” he said. “But where’s the adversary system? I do my job, the defense attorney does his job. This is what puzzles me. That’s what the adversary system is all about.”