Post-Tribune

Jailed for murder; he didn't give up

December 26, 2006
by Associated Press and staff writers

Roy Brown of Auburn, NY always denied killing a social worker. His request for copies of his trial records unearthed unseen statements that implicated Barry Bench, Then DNA backed him up.

Jailed for murder, he tracked down real killer from behind prison bars

A convicted murderer proved his innocence by investigating his own case from has asked his sentencing judge for a pardon after 16 years in jail for a crime he had proved conclusively that he did not commit.

Brown had always protested his innocence, denying that he stabbed and strangled a female social worker to death at a farmhouse in upstate New York in 1991, and he managed to investigate and solve the crime from his prison cell. Five days after he wrote a letter to the local fireman he had identified as the real murderer, the man killed himself by lying in front of an oncoming train.
Roy Brown
Roy Brown always denied killing a social worker. His request for copies of his trial records unearthed unseen statements that implicated Barry Bench. Then DNA backed him up.
“Witnesses can commit perjury, judges can be fooled and juries can make mistakes,” wrote Brown. “When it comes to DNA testing, there’s no mistakes. DNA is God’s creation and God makes no mistakes.”

He petitioned the judge for his freedom after DNA taken from bite marks on the victim’s night shirt confirmed his theory of the crime.

The judge, Peter Corning, who presided over the original trial and retires on December 31,  delayed a decision until a full hearing on January 22.

Lawyers from the Innocence Project, a university-based law centre that argued his case, were pushing for his immediate release. He is suffering from a liver disease and awaiting a transplant.

“Roy wrote to us, like thousands do every year,” said Eric Ferrero, of the Innocence Project, which has overturned 188 convictions with DNA evidence. “What is unusual is somebody sitting in his prison cell solving the case. This is the first time we have seen that.”

The naked body of Sabina Kulakowski was found across the road from her home in the town of Aurelius in the early hours of May 23, 1991, when firemen responded to an arson blaze at the farmhouse.

The wounds — including bite marks on her red nightshirt found nearby — suggested that Ms Kulakowski, 49, had put up a struggle. The murder appeared highly personal because there was no evidence of rape or burglary.

Two days later Brown, who made a living selling magazine subscriptions in Syracuse, 30 miles away, was charged with her murder. He had been released from prison six days before the crime after serving an eight-month sentence for making threatening calls to a social worker, whose agency he blamed for ordering his daughter, aged 17, into foster care.

He was convicted of the killing on the basis of expert testimony linking him to bite marks on Ms Kulakowski’s body, even though they showed indentations from six upper teeth and Brown had only four.

Sentenced to a minimum of 25 years in jail, it took Brown 13 years and three failed appeals to uncover evidence pointing to the true murderer — and then only because of another fire. When his trial records were destroyed at a blaze at his stepfather’s house in 2003, he filed a freedom of information request for copies.

Among the documents were statements that he had not seen before, implicating a local volunteer fireman, Barry Bench. Unlike Brown, Bench knew Kulakowski well because his older brother, Ronald, had dated her for 17 years. He and  Kulakowski had lived together at the farmhouse and relatives said that Barry Bench resented that she stayed there after the couple separated in 1991.


DECADES LOST
TO WRONGFUL CONVICTION AROUND THE WORLD

*In 1973, the 17-year-old Stephen Downing was convicted of murdering a secretary in a Derbyshire churchyard. The local paper campaigned for his release, which eventually came in 2002, when his conviction was ruled to be unsafe

*Paul Blackburn, of Cheshire, served 25 years for the attempted murder of a nine-year-old boy before having his conviction overturned last year

*Mirza-Tahir Hussain spent 18 years on death row for murder in Pakistan before being pardoned last month

*Wilbert Rideau, of Louisiana, was released after 43 years in prison after his fourth trial for the same murder, when the judge ruled that he had committed manslaughter and had served a long enough sentence

*Rubin Carter  was found guilty of three murders in 1966. He was freed in 1985 after his second appeal led to the overturning of his conviction. His campaign brought him to the attention of Bob Dylan, who wrote the song Hurricane about it
Among the four sworn affidavits released to Brown was a statement by Tamara Eckstadt, Bench’s long-time girlfriend and the mother of his child. She told police that Bench, already subject to a domestic protection order, got into violent row with her at about 5pm on the evening before the murder and went to a local bar. He returned home drunk between 1.30am and 1.45am — more than an hour after leaving the bar. He washed his face and arms and then turned off his fire monitor before going to bed, something he seldom did.

He was roused and summoned to fight the fire at the farmhouse by repeated calls to his home phone. At the scene, he wandered in the direction of where the body was found.

After his suicide, Bench’s 19-year-old daughter, Katherine Eckstadt, provided a private investigator with a DNA sample.

It showed with 99.9 per cent certainty that her father’s saliva was on the bite marks on Kulakowski’s night shirt. “I had to know the truth,” Eckstadt told the New York Times. “How was I supposed to live knowing that I could have helped Roy Brown, yet I let him rot in prison?”

On December 23, 2006, workers moved swiftly to exhume the body of Barry Bench.

Cayuga County District Attorney Jim Vargason says the body has been sent to the Onondaga County Medical Examiner’s Office to obtain a DNA sample. He says the sample will be sent to a State Police lab in Albany for a comparison. Vargason says he does not know how long the process will take, but has asked for it to be done on an expedited basis.

UPDATE:  1/22/07 -

Defense lawyers for Roy Brown late today revealed that in a conference call earlier today, District Attorney Jim Vargason agreed to join the motion to vacate Brown's conviction for the 1991 murder of social worker Sabina Kulakowski.

Vargason confirms he will ask a judge tomorrow to throw out the conviction and set brown free.

He says his decision is based on his investigation of new DNA evidence that points to another killer in the Kulakowski murder.

Brown's lawyers last month claimed that DNA on the victim's nightshirt belongs not to Brown, but to Barry Bench, a volunteer firefighter. Bench committed suicide three years ago, and the DA had the body exhumed for genetic testing.

The DA says while agreeing to thrown out the conviction, he will ask the judge to keep the indictment against brown intact, while the prosecutor continues his investigation.


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