Inmate who killed 4 seeks execution stay
A death row inmate scheduled for lethal injection on Thursday is seeking to halt his execution, saying that Harris County prosecutors failed to disclose evidence surrounding a witness’ health and ability to recall details at the time he was tried for capital murder in 1993.
Arthur Brown Jr. was convicted of killing a pregnant woman and three other people while robbing a drug house in 1992. His lawyers have asked the court for additional time to review favorable evidence they contend was withheld for decades.
The eleventh hour pleadings came after Brown changed lawyers and months of delays as officials debated whether judges should have discretion in the signing of execution warrants.
Court documents identified by Brown’s legal team cast doubt on the testimony of shooting survivor Rachel Tovar, who frequently appeared at court hearings in the lead up to Brown Jr.’s execution date.
Benjamin Wolff, director of the Office of Capital & Forensic Writs, said he is concerned about the rationale behind a prior Harris County District Attorney’s Office administration withholding some records from Brown Jr.’s trial lawyers, including medical files related to Tovar’s gunshot wound to the head.
Wolff believes the records indicate she has significant brain damage. A transcript of Tovar’s son’s interview with police was also withheld from defense lawyers even though it hinted at different man being culpable in the killings, Wolff said.
Joshua Reiss, chief of the postconviction writs division for the Harris County District Attorney’s Office, called the claims “meritless” and noted that laws governing evidence were different at the time of the trial. Postconviction lawyers, he said, had access to the files in question during prior reviews of Brown Jr.’s case. The concerns, he said, are coming up far too late.
“Most of them could have been and should have been raised before — and we’re going to contest them,” Reiss said.
The trial predated the Michael Morton Act, which, in 2014, required prosecutors to turn over evidence to defendants. But at the time of the trial, the 1963 Brady ruling mandated that prosecutors disclose any materials that shed light on potentially favorable evidence. Prosecutors now contend the evidence at trial did not qualify for a Brady notice — an assertion that Wolff disputes. He believes prosecutorial misconduct played a fundamental role in Brown Jr.’s conviction and death sentence.
“This was under a different administration but (prosecutors) have an opportunity to fix it,” Wolff said.
Paul Mansur, who represented Brown Jr. from 2009 until withdrawing last year, said prosecutors gave him access to the case files but he did not recall seeing the medical files or anything pertaining to the interview with Tovar’s son. Mansur indicated in previous court filings that Brown Jr. had grounds for an intellectual disability claim but he would need a specially qualified attorney to handle those claims.
Two accomplices were convicted in the same capital murder case, Antonia Lamone Dunson and Marion Butler Dudley. Dudley was executed in 2006, for his role in the killings. All three men lived in Alabama at the time of the murders.
The three men linked to the killings had previously visited the southwest Houston home of Tovar and her husband, Jose Tovar, to inquire about buying cocaine. Hours later, they returned and tied up the couple and four others using strips of bed linens. The men shot their victims execution-style in rooms throughout the Brownstone Lane home, police said. The suspects fled with cash and drugs.
Investigators discovered the bodies of Jessica Quinones, who was 19 and seven months pregnant, Jose Tovar, 32, Frank Farias, 17, and Audrey Brown, 21.
Rachel Tovar, who was married to Jose Tovar, survived, along with a male victim. She testified in trial that she saw Brown Jr. at one point with a gun but did not know if he was the one who shot her. She crawled to a neighbor’s house with a gunshot wound to the head, pleading for help.
The court document filed by Brown Jr. indicates Tovar could not have credibly identified the assailants, as she did in multiple statements, because she had “severe and ongoing memory issues” as a result of the gunshot wound. She identified Brown Jr. and Dudley as people she knew through photos that investigators showed her at the hospital. In a recorded interview, she identified her assailants as Red and Squirt, but noted that she did not know their birth names.
An investigator for the Office of Capital & Forensic Writs recently spoke with Tovar’s son, Anthony Farias, whom the investigator said recalled being with Tovar at the hospital when police interviewed her. The investigator penned an affidavit saying Farias recalled that his mother did not recognize him and believed their whole family dead. Farias did not sign the affidavit.
The investigator in the affidavit indicates that Tovar’s memory was compromised after the shooting because Tovar eventually told her son that “she had blacked out during the shooting and could not remember anything.”
Defense attorneys believe Tovar’s medical records point to brain damage that may have impacted her “ability to serve as an accurate or reliable eyewitness” during the investigation and trial.
Wolff said he did not receive those medical records, which prosecutors had had since 1993, until Feb. 28.
Brown Jr.’s defense team presented evidence during the trial that another man, Marcus Terrell Hill, a Tuscaloosa-area drug dealer, may have been involved. Hill died in 1993, according to court documents. He was shot and killed while “trying to rob a crack house in Alabama.” Police found a gun in Hill’s possession that matched a weapon used in the Brownstone Lane shooting.
When police spoke to Farias after the shooting and asked if he knew the men behind the nicknames, he identified Red as someone named Terrell. But he said he wasn’t sure about it, according to a transcript.
The other survivor, Nicholas Cortez, did not identify Brown Jr. as a perpetrator until the trial, according to court documents; and when he did, he did not say Brown Jr. was the shooter.
Prosecutors obtained a prior order of execution for Brown Jr. in 2013 but Mansur successfully argued for a judge to stay the order.