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Arthur Brown

Other Cook County Exonerations with Official Misconduct
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On November 14, 2017, after more than 29 years in prison, 66-year-old Arthur Brown was exonerated of a double murder and arson in Chicago, Illinois. His convictions were vacated and the charges dismissed based on evidence that the prosecutors, Michael Gerber and Mary Lacy, made false arguments to the jury.

Brown’s exoneration came nearly one year after Gerber, who spent more than three decades as a prosecutor, was sworn in as a Cook County Circuit Court judge.

As he was released from custody, Brown declared, “I knew that this day would come—the truth would come out.”

Brown’s ordeal began in the early morning hours of May 28, 1988, when a fire erupted in the Magic Video Store on east 63rd Street on the south side of Chicago. The blaze, fueled by gasoline, quickly spread to seven neighboring businesses and killed two people who were spending the night in the back of their restaurant.

Two police officers, David Brown and Hester Scott, were driving on 63rd Street when they saw smoke and summoned the fire department. As they got out of their squad car, 22-year-old Michael Harper approached. He said that he was the owner of the video store and asked if the people next door in the King Chef restaurant got out.

When the fire was brought under control, firefighters discovered the bodies of the King Chef restaurant owner, 50-year-old Kiert Phophairat, and an employee, 29-year-old Pismai Panichkarn, who had been sleeping at the restaurant. Both died of smoke inhalation.

Officer Brown told Harper to stand across the street with Officer Scott as firefighters worked to extinguish the blaze. At that point, a bystander, Sid Malone, approached Officer Scott. He said that earlier he saw two people get out of a white van with license plate number GAS403, and carry a gasoline can into the video store. As Malone was telling this to Scott, he pointed to a white van driving on 63rd Street. “There it goes now,” Malone said.

Harper agreed to go the police station for questioning. Police had noticed that there were few videos in the store, leading them to suspect that the inventory had been removed before the fire was set.

By that time, the white van had been recovered and officers found several videos inside. During his interrogation, Harper said the vehicle was his—although records later showed it was registered to Harper’s 17-year-old cousin, Geronia Ford. Police said he then confessed to starting the blaze because the store was losing money.

Meanwhile, the landlord of the building that housed the video store told police that 37-year-old Arthur Brown often did repair work there. Brown learned police were looking for him and called police from a job site where he was doing a roofing job. Police came to the job site, arrested him and took him to the station. He later said that detectives beat and threatened him during a seven-hour interrogation. In the end, Brown signed a statement drafted by an assistant state's attorney and initialed by detetive Joseph Fine saying that he set the fire along with Michael Harper, Ford and Albert Harper, Jr., Michael Harper’s uncle. Brown later contended the statement was fabricated and that he had no involvement in the crime.

All four were charged with first-degree murder and arson. At the initial bond hearing, the prosecution announced that it would seek the death penalty against Brown, Michael Harper, and Albert Harper (Ford was too young to qualify). Brown collapsed and fell to the floor while pandemonium erupted among about three dozen of Brown’s relatives in the gallery. As Brown was helped to his feet and into a chair, he apologized to Judge Michael Bolan. “I’m just emotional,” Brown said. “I’ve never been in a courtroom before.”

In April 1990, Michael Harper and Brown went to trial in Cook County Circuit Court before separate juries.

Sid Malone testified that he saw the white van park in front of the video store and the King Chef restaurant. He said that he saw two men go into the video shop, and that one was carrying a gasoline can. Minutes later, he saw smoke coming from the store. Malone was unable to identify the two men.

Detective Joseph Campbell, an arson investigator, testified that he concluded the fire was started in rear of the video store after mattresses were doused with gasoline and leaned against the walls. Campbell said that prior to Brown's interrogation, he was informed that a neighborhood resident found a gasoline can in the alley by the corner of the building that housed the video store.

At one point, the prosecutor, assistant Cook County State’s Attorney Michael Gerber, specifically noted in a comment to the judge that the can was recovered prior to Brown’s statement.

Cecil Hingston, who worked in a nearby gas station, testified that he sold gasoline in a gas can to two men in a white vehicle at around 5 a.m.

The statements that Michael Harper and Brown had signed were read to their respective juries. Brown’s statement said that Michael Harper called in the early morning hours of May 28, 1988 and asked him to come to the store. The statement said that Harper said he was going to burn down the store because he could not pay his bills and he wanted Brown to make the store look like it had been burglarized.

The statement quoted Harper as telling Brown not to make too much noise so as to not wake the “Chinaman” next door. After Albert Harper and Ford brought a can of gas, Brown and Harper soaked the mattresses and ignited them.

Harper’s statement said that Brown agreed to help him torch the store in return for several pornographic videos.

Brown testified and denied involvement in the crime. He said that during a seven-hour interrogation, detectives beat and threatened him, and denied his requests for an attorney. He admitted that he signed the statement, but insisted the confession was fabricated.

Brown testified that he did odd jobs and maintenance work for the stores along 63rd Street. He had installed new front and back doors with burglar bars at the video store. On May 28, 1988, at about 3 a.m., Harper called and told him that there had been an attempted break-in and that he needed to fix the door. Brown said he went to the shop, saw that the lock had been broken, and secured the door with boards. He said he told Harper he would return the next day to fix the lock.

Harper did not testify, but his grandmother testified that the videos had been removed to conduct an inventory and that there was no insurance on the business.

On April 23, 1990, Brown and Michael Harper were convicted of first-degree murder and arson.The prosecution asked Judge Fred Suria to impose the death penalty, but Judge Suria declined to do so. He sentenced Harper and Brown to life in prison without parole.

Ford was later convicted of a lesser charge and sentenced to seven years in prison. Albert Harper was acquitted in 1991.

In October 2001, James Bell signed a sworn statement admitting that he had set the fire. At that time, Bell was in prison serving a life sentence for armed robbery. He said that in the months leading up to the fire, he sold drugs to Brown on credit. He thought Brown owned the video store and when Brown declined to pay his debt, Bell broke into the store intending to get money from the cash register. When he found only a few dollars, Bell said, he set the place on fire and left.

About a year later, in 2002, Cecil Hingston recanted his statement about selling gasoline to two men as well as his identification of Albert Harper and Geronia Ford. Hingston gave a sworn statement saying that he told the detectives he never sold anyone gasoline early that morning. The officers, however, threatened to arrest him for making an undocumented sale and to report him to his boss until he agreed to testify to a sale. Hingston said his lineup identifications were false because the detectives told him who to pick.

In August 2003, 13 years after Brown was convicted, he was granted a new trial, primarily based on Bell’s confession and Hingston’s recantation.

Brown went to trial a second time in 2008. By that time, Hingston had died. The prosecution read his direct testimony from the first trial into the record, but not his cross-examination. Brown’s defense attorney did not seek to introduce Hingston’s cross-examination or his recantation into evidence.

Bell testified that he set the fire because he was angry with Brown, whom he mistakenly believed owned the video store. He said that he came forward because he had embraced Christianity and was no longer afraid of being prosecuted for the crime.

Assistant state’s attorney Michael Gerber again handled the prosecution, Gerber said that Bell’s confession was false and was concocted with Brown when the two were together at Stateville Correctional Center.

As in his first trial, the primary evidence against Brown was his confession. Gerber called Detective Campbell, who had testified in the first trial that the gas can was found prior to Brown’s interrogation. This time, however, Campbell testified that he discovered the gas can after Brown mentioned it during his interrogation and revealed its location.

Detective Joseph Fine, who was present during Brown’s interrogation, testified that after Brown informed them of a gas can with a white towel wrapped around the handle, Detective Campbell went back to the scene and found it.

During closing argument, Mary Lacy, who prosecuted the case with Gerber, told the jury, “Well, one thing to remember, the police didn’t find the gas can until after they had talked to Arthur Brown. Remember, detective Fine spoke to Brown, got his oral statement, his confession and then detective Joe Campbell went back out to the scene.

“This is after the defendant said to Detective Fine that there was a gas can with a white rag on it that was brought into the store,” Lacy said. “Then detective Campbell goes out and finds it in that breezeway, sure enough, with the white rag on it.”

Gerber, in his rebuttal argument to the jury, similarly said that the gas can "was out there and they found it after they talked to this guy (Arthur)."

On August 8, 2008, the jury convicted Brown of first-degree murder and arson. Once more, he was sentenced to life in prison without parole.

In 2015, Brown wrote to Ronald Safer, an attorney at the law firm of Riley Safer Holmes & Cancila in Chicago, whose work had helped free several wrongfully convicted defendants. Safer and an associate at the firm, Tal Chaiken, interviewed Brown in prison and began reinvestigating the case.

In August 2016, they filed a post-conviction petition seeking a new trial. The petition said that Gerber had knowingly allowed the detectives to lie. The petition noted that at the first trial, the prosecution stated that the can was discovered prior to Brown’s interrogation, but at the second trial argued the opposite—that it was found based on Brown’s statement.

The petition said that Gerber “solicited Detective Campbell’s and Detective Fine’s testimony, which (he) knew to be false…In addition, the State allowed Detective Campbell’s and Detective Fine’s testimony, which it knew to be false, to go uncorrected. The State also improperly relied extensively on that false testimony in its opening statement and closing argument.”

The petition also cited several other reasons why Brown’s trial was unfair. His defense attorney had failed to call alibi witnesses who would have supported his testimony about the morning of the crime, failed to challenge the detectives’ changed testimony about the gas can, failed to locate prison records that would have shown that Brown and Bell were never at any prison at the same time, and failed to introduce Hingston’s cross-examination at the first trial or his recantation affidavit.

“The State’s argument to the jury that Mr. Bell fabricated his confession after speaking with Mr. Brown at Stateville, without verifying that absolute and easily verifiable fact, was improper and constituted prosecutorial misconduct,” the petition said.

The petition also claimed that Brown’s appellate attorney had provided Brown with an inadequate legal defense by failing to raise these issues when Brown’s second conviction was appealed to the Illinois Court of Appeals.

In December 2016, Gerber, the prosecutor at both of Brown’s trials, left the Cook County State’s Attorney’s Office after his nearly 33-year career there, and was sworn in as a Cook County Circuit Judge.

Beginning in April 2017, Cook County Circuit Judge Joseph Claps held a series of hearings in Brown’s case. Brown testified that he never purchased drugs from Bell, and that he only learned of Bell’s confession after his co-defendant Michael Harper sought to vacate his conviction based on Bell’s confession. Harper’s efforts were unsuccessful.

On October 3, 2017, Judge Claps vacated Brown’s convictions and ordered a new trial. The judge pointed to Gerber’s closing argument that the detectives found the gas can after Brown was questioned. “Given the detectives’ testimony from the first trial,” the court noted, “this was a false statement. This issue is compounded by the fact that in opening statement, the State also told the jury that police went to the crime scene after (Brown) confessed and found the gas can.”

Judge Claps ruled, “Given the repeated reference to the false sequence of events in the opening statement, closing argument, and rebuttal, there is a reasonable likelihood the jury could have reached a different verdict had those arguments not been made….Indeed, such statements amounted to a purposeful due process violation that led to (Brown’s) conviction.”

The judge also found that Brown’s appellate lawyer had provided him with an inadequate legal defense by failing to raise those issues on appeal.

The prosecution said it would appeal the ruling. Safer and the rest of Brown’s legal team then appealed directly to Kim Foxx, Cook County State’s Attorney. Foxx asked the office’s conviction integrity unit to review the case. Days later, on November 14, 2017, the prosecution dismissed the charges and Brown was released. A spokesman for Foxx said the prosecution had "determined there were significant evidentiary issues that raised deep concerns about the fairness of Mr. Brown's conviction."

– Maurice Possley

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Posting Date: 11/26/2017
State:Illinois
County:Cook
Most Serious Crime:Murder
Additional Convictions:Arson
Reported Crime Date:1988
Convicted:1990
Exonerated:2017
Sentence:Life without parole
Race:Black
Sex:Male
Age at the date of crime:37
Contributing Factors:False Confession, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No