Appellate court: Feds can retry man for ’95 death of firefighters
The government can retry Gregory Brown on charges of setting an East Hills fire in 1995 that killed three firefighters, a federal appellate ruled on Tuesday.
A three-judge panel of the 3rd U.S. Circuit Court of Appeals said that a retrial of Brown in federal court does not violate his double jeopardy rights, upholding a previous ruling by U.S. District Judge David Cercone.
Brown and his lawyers had asked the court to apply an exception to the dual-sovereignty doctrine because they argued that his state trial was “merely a tool” of federal authorities.
“But we need not reach that question,” wrote Circuit Judge David Porter. “Brown’s claim fails for a more obvious reason: Retrying a defendant because the conviction was reversed for trial error is not a second jeopardy. Regardless of whether it
proceeds in state or federal court, Brown’s second prosecution does not violate the Double Jeopardy Clause.”
The judges said Judge Cercone did not err in denying Brown’s motion to dismiss a federal indictment against him brought in 2016 on a charge of malicious destruction of property by fire resulting in death.
Brown was convicted in state court in 1997 for the deaths of firefighters Thomas Brooks, Patricia Conroy and Marc Kolenda. He won a new trial in 2014 after his lawyers successfully argued that he was the victim of prosecutorial misconduct. The lawyers argued that the prosecution did not disclose that two key witnesses had been paid for their testimony.
But the new trial never happened.
Instead, authorities in 2016 decided to charge him in U.S. District Court and take him to trial there.
His lawyers argued that the decision was a violation of the Fifth Amendment protection against being tried twice for the same crime.
Prosecutors said it was not a violation because the state and federal systems represent different jurisdictions or “sovereigns.”
Judge Cercone ruled in favor of the prosecution last year. He said a state prosecution doesn’t prevent a second trial in federal court for the same crime and that double jeopardy does not apply if the results of the first trial are overturned because of an error in the proceedings.
Brown and his lawyers then appealed to the 3rd Circuit.
The judges said that a retrial would only be barred if the prosecution had purposely provoked the defense into asking for a mistrial in order to seek a second trial.
“Even if a mistrial had been granted in this case,” Judge Porter wrote, “Brown has provided no evidence that the prosecution intended to provoke one.”
The prosecution’s failure to disclose the witness payments demonstrates “an overzealous effort to gain a conviction and...not an attempt to subvert [Brown]’s ‘valued right’ by bringing the case before a second jury,” Judge Porter wrote.
“Brown’s success in getting his conviction set aside through collateral attack does not prohibit the government from retrying him.”
The case now returns to Judge Cercone.
One of Brown’s lawyers, Dave Fawcett of Reed Smith, said in an email that the ruling doesn’t “change the fact that Mr. Brown is an innocent man who spent 20 years in jail because of gov-ernment misconduct. There was no crime committed. There was no arson. Only bad testing by government agents combined with illegally concealed witness payments allowed the government to even claim this was a crime in the first place.”
He also said “it’s sad to learn that the government is allowed to try a man twice when it is guilty of so much misconduct. But that will not deter us in the defense of an innocent man.”