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Tony Brown

Other Miami-Dade Exonerations
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At about 5 a.m. on October 1, 2005, Michael Morris and Nigel Whatley were outside Club Boi, a nightclub in Miami, to look at Morris’s new Infiniti.

Morris would tell police that a man came up to them, demanding money. Morris threw his keys and money on the ground. Whatley refused and said that the robber would have to shoot him. The robber pulled out a gun. Just then, a car drove by on Seventy-Eighth Street, momentarily distracting the robber. Whatley jumped on the man, and Morris came at him from behind. The gun went off, and Whatley fell to the ground. Morris was knocked down and then shot in the chest. He said he ran behind a car and saw the gunman straddle his friend and shoot him again before rifling through the Infiniti. Morris then began running away but was shot again, this time in the leg. The police found him slumped outside a nearby restaurant. Whatley was found dead at the scene next to the car.

The police described the shooter as a “black male, 5 feet 7 inches to 5 feet 10 inches, medium build, approximately 165 pounds, dark complexion, 20-30 years old, black fade haircut with possible braids.” When they interviewed Morris at the hospital on October 4, he had difficulty adding to that description, describing the shooter as being about 5 feet 6 inches to 5 feet 8 inches tall, and having a dark complexion and medium build.

Police gathered several pieces of evidence: a pendant, an earphone, the car key, and even a fingerprint off the car. Across Seventy-Eighth Street, eleven feet from Whatley’s body, they found a black “skully” cap.

Police were able to recover DNA from the cap, and they ran the sample through a state database that included persons convicted of felonies. Nine months later, they got a hit when the source of the DNA was said to bel from 34-year-old Tony Brown, who, although his real name was Andre Gonzalez, ultimately would be prosecuted as Brown.
 
At first, Brown denied being at the club that night. Later, he told detectives that he had gone there to pick up a generator from a friend, but he couldn’t recall the friend’s name.

Detectives went back to Morris. They showed him a photo array that included Brown. He picked Brown as his likely assailant, signing a statement that said he was “60 percent certain” that it was Brown. In addition, he now said that the gunman wore a cap. In his initial statement to police, there had been no mention of a cap.

Brown was arrested on July 24, 2006. His trial didn’t take place until 2010. Morris was the state’s only eyewitness. Kimberly Hunter, Brown’s girlfriend at the time, testified that she and Brown had been at Players Club, which was in the same building as Club Boi. Before going in, they sat outside in her car getting ready and Brown had taken off his cap to brush his hair. She said they left the club just before the shooting. After a friend called to tell her what happened, Hunter said, she called 911 and then returned to the club to make sure the victim wasn’t someone she knew. She testified that didn’t know anything about a generator.

Brown was convicted on May 7, 2010 of second-degree murder, attempted first-degree murder, armed robbery, and attempted armed robbery. He was sentenced to life in prison. Several jurors would later say they had doubts about Brown’s guilt, but that May 7 was a Friday and they wanted to be done with the casecase, so their jury service wouldn’t be carried over to the next week.

Brown appealed, arguing that the trial judge had erred when allowing the state to argue that his refusal to give a full statement was an indication of guilt. His conviction was reversed, but then reinstated by the Third District Court of Appeal in 2011.

From the beginning, there had always been problems with Morris’s testimony. First, he said that Whatley had been shot twice at close range. But the autopsy only showed one bullet wound and no pattern of gunpowder residue, or stippling, on his body. Second, if the crime was a robbery, nothing was stolen. Third, he said the gunman had a scruffy beard. Brown had a condition that made it impossible for him to grow facial hair.

The Miami-Dade detectives had interviewed Morris at the hospital three days after the shooting, but he was under heavy medication and offered few details about what he saw. They did not speak with him again until nine months later, after Brown’s DNA had come up on the database. The officer who conducted the photo array for Morris knew that Brown was a suspect.

In 2015, students from the Medill Justice Project at Northwestern University began reinvestigating the case and interviewing possible witnesses, including Arnold Clark, who was a manager at the Players Club. He told the students that he had gone outside to look for one of the club’s DJs, a man named Clinton Marshall, just as the shooting unfolded. First, he heard several shots. Then he walked toward the shots and saw Marshall standing with another person next to a black car. He heard another shot, and saw a flash and the other person fall. He would testify in a hearing that he never saw a gun in Marshall’s hand. Clark also said he didn’t see a third person.

Clark said he called out to Marshall, who told him to come over. There was a body on the ground. Marshall went around to the passenger side of the car and opened the glove compartment. Clark told him he should not touch the car, and Marshall went back into the club. Clark called the police, but he told officers at the time that he didn’t see anything. He would later tell the Medill students that he kept his mouth shut because he was worried about reprisals against the club and him personally. 

On December 20, 2016, Brown filed a motion to vacate his sentence because of this newly discovered evidence and ineffective counsel at his trial. Three days of evidentiary hearings were held.

On September 7, 2018 Judge Miguel de la O of the Eleventh Judicial Circuit dismissed the claims of ineffective counsel, noting that Brown’s trial attorney was one of the state’s most experienced public defenders. But he said that Clark’s testimony at the hearings was compelling and cast serious doubt on the state’s case, which was based on a single eyewitness and a tenuous physical link between Brown and the shooting.
“This Court has no idea if Brown murdered Whatley and shot Morris,” wrote de la O. “Perhaps he did, perhaps he did not. This Court does not need to make this final determination, however.” Such matters, he said, were best left to a jury, and he vacated Brown’s conviction and sentence and ordered a new trial.

Brown was released from prison on September 28, 2018. Prosecutors dismissed the charges Brown on October 16, 2018, but said in a court memo explaining their decision that they did not believe Brown was innocent. “However,” the memo stated, “in light of the changes in the evidence, we are unable to again prove Tony Brown's guilt beyond a reasonable doubt as required by law.”
 
– Ken Otterbourg
 

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Posting Date: 10/22/2018
Last Updated: 10/29/2018
State:Florida
County:Miami-Dade
Most Serious Crime:Murder
Additional Convictions:Attempted Murder, Robbery, Attempt, Violent
Reported Crime Date:2005
Convicted:2010
Exonerated:2018
Sentence:Life
Race:Black
Sex:Male
Age at the date of reported crime:33
Contributing Factors:Mistaken Witness ID
Did DNA evidence contribute to the exoneration?:No