Attorneys seek dismissal of charges in blaze that killed city firefighters

Attorneys for a man accused of setting a fire in East Hills on Valentine’s Day 1995 that killed three firefighters argued to a federal court judge Friday that prosecutorial misconduct and the destruction of evidence ought to prohibit their client from being tried again.

Gregory Brown Jr. 40, initially was tried in Allegheny County Common Pleas Court in 1997 and found guilty of three counts of second-degree murder for the deaths of Thomas Brooks, 42, Patricia Conroy, 43, and Marc Kolenda, 27. He was sentenced to life in prison without parole.

In February 2014, however, Common Pleas Judge Joseph K. Williams III ordered that Mr. Brown’s conviction be vacated and granted a new trial, finding that the defense should have been told that the federal Bureau of Alcohol, Tobacco, Firearms & Explosives agents had offered reward money to witnesses in exchange for their testimony.

The state Superior Court upheld Judge Williams’ decision, and the case was slated for a new trial before him.

But in November 2016, faced with Judge Williams’ decision not to recuse himself from the case as the District Attorney’s office had requested, the state prosecutor’s office decided to withdraw its charges.

At the same time, the U.S. Attorney’s Office obtained a federal indictment against Mr. Brown on one count of malicious destruction of property by fire resulting in death.

The case now is assigned to U.S. District Judge David S. Cercone, who originally heard the state case when he served on the Common Pleas bench.

On Friday, Judge Cercone heard arguments on two defense motions — one seeking dismissal of the case and another seeking suppression of evidence. The hearing will conclude Feb. 20.

In their motion to dismiss, Mr. Brown’s attorneys argued that to try their client in federal court is a violation of his right against double jeopardy — or being tried twice for the same crime.

The prosecution, however, contends that federal court is a separate jurisdiction. And Judge Cercone questioned whether jeopardy is even attached since Mr. Brown’s first conviction was vacated.

The defense also argued that because the ATF was a lead investigator, and because Assistant U.S. attorney Shaun Sweeney was loaned to the DA’s office to help try the case because of his expertise in arson, the federal government was so intricately intertwined in Mr. Brown’s first case that trying him now in federal court is double jeopardy.

But deputy district attorney Rebecca Walker, who has been

loaned to the U.S. Attorney’s office to work on the case, argued that Mr. Sweeney was representing the commonwealth at that trial.

Defense attorney David Fawcett countered that it’s not just Mr. Sweeney’s role in the case, but that of the entire U.S. government.

“This was a joint effort from the very start,” he said. “It was the actions and inactions of the United States that led to the violations. There is no question he was representing the interests of the United States in that courtroom.”

Judge Cercone noted that itis common for state and federal law enforcement and prosecutors to work together.

But Mr. Fawcett said, “It’s the involvement and wrongdoing. It’s the confluence of all the issues.”

The defense further argued that because of prosecutorial misconduct in the first trial, the U.S. Attorney’s office ought to be barred from trying Mr. Brown again — to act as a deterrent to protect against other wrongdoing.

As for the defense argument regarding the destruction of evidence, Mr. Brown’s attorneys told Judge Cercone that their client would be prejudiced to have to go trial when all of the fire scene evidence was destroyed by order in 2005, and after several of the witnesses in the case have died.

Federalpublic defender Michael Novara argued that had the prosecution acted appropriately during the trial — or even in the days and months after questions about the reward money came up — the evidence and witnesses might stillbe available.

“If they didn’t fight at every step of the way ... year after year while our client sat in jail,” Mr. Novara said. “Now, they want a do-over. They didn’t kill these witnesses, but they created a situation where wewill be prejudiced.

“They should not be allowed to get away with this.”

The prosecution countered that there was never any finding of willful misconduct by the prosecuting attorneys.

“There is nothing they can point to of willful misconduct that rises to the level of prejudice,” Ms. Walker said.