Miami Herald

Posted on Thu, May. 15, 2003

'I'm finally going home'

Judge frees man convicted in murder of deputy
Tim Brown
Timothy Brown walked out of the Broward County Jail at 4:40 p.m. Wednesday, possibly never to return, after prosecutors acknowledged there is little chance of retrying him for the murder of Broward Sheriff's Deputy Patrick Behan 13 years ago.

Brown, 27, started the day as a state prisoner serving life without parole. He ended it in his mother's Hollywood home, a dinner of ham and collard greens on the table, an electronic monitoring bracelet on his ankle.

''I'm finally going home with my family,'' Brown said Wednesday, grinning broadly as he emerged from jail. ``I never doubted this day would come. I've had faith in my God above.''

Arrested in 1991 and convicted by a jury two years later, Brown spent 11 years, nine months and 29 days in custody as a cop-killer. But Wednesday, with the case in tatters, Broward Circuit Judge Ana Gardiner allowed him to go home on a minimal $5,000 bond. A bondsman fronted the required $500 himself.

''Proof is not evident,'' a somber Charles Morton, the prosecutor, told the judge. ``Presumption is not great.''

On hearing the decision, mother Othalean Brown stomped softly on the floor, murmuring ''Thank God, thank God,'' as tears rolled down her cheeks. Next to her sat Shonteri Smith, 21, of Fort Lauderdale, a pen-pal girlfriend who has corresponded with Brown in prison for eight months.

Six hours later, after a Teletype from the Department of Correction authorized his release, a grinning Brown emerged from the Fort Lauderdale jail. He wore a blue Nautica shirt and black FUBU pants, items brought by his mother -- actually his stepmother, though she has raised him since his birth -- in a brown paper bag.

Brown hugged his mother and his new girlfriend, meeting her face to face for the first time. Then, the entourage returned to Othalean Brown's Hollywood home for ''Christmas dinner,'' an epic feast to make up for all the holiday meals her son missed in prison.

U.S. District Judge Donald Graham overturned Brown's murder conviction in March, concluding that the mentally retarded suspect never fully grasped his legal rights when he gave police a garbled confession to the Behan slaying.

Graham earlier ruled that a reasonable jury would not convict Brown based on the evidence available today.

The Herald revisited the Brown conviction in early 2001 with a series of investigative articles that questioned the seemingly flimsy case.

Around the same time, a South Florida woman, Gwenda Johnson, provided a new lead in the dormant case. Her estranged husband, a disgruntled former sheriff's employee named Andrew Hughray Johnson, claimed he was Behan's killer, she said. Johnson later gave a detailed account of the Nov. 13, 1990, crime in a series of boastful taped conversations with undercover agents posing as drug dealers.

Both later recanted their statements, and Broward Sheriff Ken Jenne concluded last year he had insufficient evidence to arrest Johnson.

Wednesday's events, however, marked the first public concession by prosecutors that they may have insufficient evidence to attempt further prosecution of Brown.

''There is no evidence. There is no evidence that I know of. They haven't articulated any,'' said Timothy Day, one of Brown's federal public defenders.

The federal judge gave prosecutors 90 days to retry Brown or release him. Facing a June 25 deadline, Morton asked Gardiner to set a tentative trial date of June 23 on the remote possibility that investigators will yet find new evidence.

But retrial, at this point, seems unlikely. Three separate reinvestigations of the Behan case have found no new evidence of any weight to tie Brown to the killing. Prospects are dimming that the one remaining inquiry, by the Florida Department of Law Enforcement and BSO, will unearth anything new by the June deadline.

''We're before the court on a case where there is no case, where there are no facts,'' Day told the judge.

Brown's conviction hinged on his confession to BSO detectives James Carr and Eli Thomasevich. Graham, the federal judge, threw out the confession and questioned the cursory review of Brown's Miranda rights that preceded it. Both detectives recently retired, with Carr saying he was forced out over his handling of the case.

The state attorney's new outlook on Brown became clear last week when homicide chief Morton announced he would not object to releasing Brown on a ''reasonable'' bond. On Wednesday, he did not oppose the $5,000 amount proposed by defense attorneys.

Morton offered this caveat: The fact that prosecutors have no case now ''does not mean that the state will not have sufficient evidence to go to trial'' later.

Brown's attorneys, for their part, agreed to a long list of restrictions tailored to prevent Brown from flight.

He must wear an ankle bracelet at all times. He may not leave the county. He may not set foot in an airport, seaport, bus or train station. He may not change address without permission. He may not break a law or carry a firearm. He mustn't contact any witness in his own case. He's not to leave his mother's home without permission.

''The simplest way I can explain this to you is, you need to be inside your home,'' Gardiner told Brown.

Brown will be allowed daily visits to Koinonia Worship Center and Village, a neighborhood church, to pray, mow lawns and perform community service under the tutelage of church leaders. A family friend has offered him a job detailing cars.

Brown's relatives filled a row in the Fort Lauderdale courtroom Wednesday and erupted in sobs, cries and stomping feet when it became clear his release would not be opposed. The inmate, expressionless until the very end, finally turned to relatives and mouthed ''I love you'' before guards led him away.

''We did it,'' said Othalean Brown, as she rose to leave. ``I am a very happy mother today. Thank God, thank God, thank God. I'm going home and I'm going to cook my baby dinner.''

Federal public defenders Day and Brenda Bryn paced and fidgeted through most of the afternoon alongside Brown's mother, waiting for bureaucratic gates to open.

Brown owes his freedom in part tom Roschell J. Franklin of Franklin Bail Bonds, who posted the $500 to free him.

''I didn't know how much money the family could afford, so I just thought it would be the right thing to do,'' he said.

No one was celebrating Wednesday among the relatives of Patrick Behan, who remain convinced Timothy Brown is the real killer.

''While we understand that some people may be mired in ambiguity and confused in this case,'' the family said in a statement, ``it is a certainty one person not returning home tonight is Patrick Behan; he is in a Hollywood cemetery.''

Brown sent an emotional plea to the Behan family: ``I'm sorry for your loss, but I did not kill Deputy Behan. I hope one day the killer is found and pays for what he did.''

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