Barry L. Smith, Esquire
85 McKinley Avenue
Warren, Pennsylvania 16365

RE: COMMONWEALTH OF PENNSYLVANIA V. MICHAEL BROWN

Dear Mr. Smith:

     Pursuant to Rule 133 (b) of the Pennsylvania Rules of Criminal Procedure, I am returning you the private Criminal Complaint of your client, Jay William Buckley, in which Mr. Buckley is the Affiant and Michael Reuben Brown is named as the putative defendant.

     You will note that this complaint has been disapproved for prosecution by the Office of the Attorney General. The reasons for disapproval of this request for prosecution are contained in the attachment to the Criminal Complaint and are self-explanatory.

Sincerely, Paul E. von Geism Jr. Senior Deputy Attorney General

PVG:tab
Attachment
cc: M. L. Ebert, Jr., E.D.A.G.
 

     The request for approval of the issuance of a private criminal complaint against Michael Reuben Brown, upon complaint of Jay William Buckley, is hereby disapproved by the Office of the Attorney General of the Commonwealth of Pennsylvania for the following reasons.

     Criminal prosecutions are not the proper forum for the settlement of private grievances but are maintained solely to rectify injury done to the Commonwealth. The attorney for the Commonwealth must exercise sound discretion to refrain from proceeding whenever there is a good faith belief that a particular prosecution would not serve the best interests of the Commonwealth. It is the considered good faith belief of the Office of the Attorney General that the best interests of the Commonwealth would not be advanced through a prosecution of Michael Brown for any of the matters relating to his statements and other proffers of evidence to law enforcement personnel as well as his testimony at the preliminary hearing and trial of Jay William Buckley.

      Criminal prosecution of this matter is declined for the following reasons:

     Furthermore, Mr. Brown already has been incarcerated for two years for a crime of which he now claims he is innocent.

     The decision to decline prosecution in this matter is based upon factors broader than simply the quantum of evidence available and is founded in the policy considerations inherent in this Office as public prosecutor.

     In the instant case it should be clarified ab initio that this Office was requested to review only those matters addressed in the present complaint against Michael Brown. The issue regarding whether or not to proceed with a prosecution of Michael Brown for his possible participation in the Wilson kidnapping and criminal homicide is not before this Office for consideration.

     Count nine of the private criminal complaint against Brown avers that Michael Brown, Warren County District Attorney Joseph Massa, and Trooper John Herzog of the Pennsylvania State Police conspired with each other to commit the crime of perjury at the preliminary hearing and trial of Jay Buckley. It is apodictic that in order to prove a prima facie case of criminal conspiracy there must be evidence of shared criminal intent between the conspiratorial confederates. By definition conspiracy requires the involvement of two or more persons in the criminal scheme. One cannot conspire with oneself. Therefore if there is no evidence of a shared criminal intent by Trooper Herzog or District Attorney Massa, there is no conspiracy.

     The only meager evidence of criminal collusion are the impugnments of Michael Brown during his testimony at his hearing on his motion to withdraw his guilty plea. During that hearing Brown essentially alleged that he was coerced and coached by various law enforcement agents, including Messrs. Herzog and Massa to provide knowingly false testimony during the prosecution of Jay Buckley. According to Brown these sworn fabrications were designed by the prosecution team to accomplish a single objective - to transform Brown into an eyewitness to the kidnapping and murder for the benefit of the judge and jury in the Buckley case, when in fact, they all knew that Brown was not present during the commission of any of the crimes for which Buckley was accused.

     Barry Smith, defense counsel for Mr. Buckley at trial and scrivener of this subject criminal complaint, has conceded during interviews with agents from this Office that the only proof of a conspiracy is the uncorroborated declarations of Michael Brown, the accused. Subsequent to the Buckley trial, the Honorable Robert Wolfe, the judge who presided throughout that trial has described Michael Brown as a man unworthy of belief by even "the village idiot". There is no evidence, other than Brown's testimony, to independently establish the alleged conspiracy between Brown, Herzog and Massa. Brown's statements would be inadmissible against Brown to prove a conspiracy in the absence of proof of the corpus delecti. Here there is none. Instead, the available proof negates the allegations of perjury.

     John Aranyos, Esquire, Thomas Bonavita, Esquire, and Ross McKeirnan, Esquire, each of whom was counsel for Michael Brown at successive stages of the proceedings commencing with his arrest and culminating with his successful withdrawal of his guilty plea, have been interviewed by agents of this Office. These lawyers were present for every meaningful contact between law enforcement personnel. Each of these attorneys emphatically denounced the assertions herein that Mr. Brown was ever coerced, coached or suborned by any member of law enforcement.

     Indeed virtually every encounter between members of the prosecution team and Mr. Brown was memorialized in some fashion,

(by means of video tape, audio tape, stenographic transcription or written report), each of which has been perused by this Office. These recordings and documents are completely devoid of a scintilla of proof that buttresses the existence of any conspiracy. Furthermore, the very existence and preservation of these items by law enforcement personnel powerfully militates against and severely vitiates any theory that there was a conspiracy afoot. Furthermore, this Office cannot overlook the fact that the complete lack of credible evidence to support a conspiracy falls woefully shy of proving guilt beyond a reasonable doubt. This Office also cannot ignore the actuality that the Pennsylvania State Police, Bureau of Professional Responsibility conducted a thorough investigation of Trooper Herzog's conduct in this matter and has exonerated his actions as they relate to state police policies.

     As mentioned previously, Judge Robert L. Wolfe presided over all proceedings relevant to this matter. Judge Wolfe listened to Michael Brown's testimony throughout the four and one-half weeks of the Buckley trial and again during the hearing on Brown's motion to withdraw his guilty plea. Subsequent to this latter hearing, Judge Wolfe issued an Opinion and Order permitting Mr. Brown to retract his guilty plea. In order to reach the conclusions reflected in the Opinion, the judge reviewed the substance of multiple audio-taped interviews conducted with Mr. Brown. Judge Wolfe wrote in his Opinion that although Brown's responses were "groping and equivocal:" "[t]here [was] no evidence from the tapes [Brown] was directly told to correct answers that did not match other evidence ... or that he was prompted to give his answers the way the Commonwealth desired them ... " (Opinion and Order October 21, 1991, page 9). The judge further remarked that one recording " ... makes it clear the Commonwealth urged the defendant to make a full and honest disclosure of his knowledge of the events that led to the death of the victim." (Id., p.4). Finally, Judge Wolfe found that "... [t]he Commonwealth's efforts in rehabilitating [Brown} and refreshing his memory over a two-year period are acceptable ;;;" (Id., p.12). Our review of all documents, recordings and interviews conducted by the principal parties herein leads us inextricably to the same conclusion.

     The remaining eight counts of the complaint charge Mr. Brown with multiple counts of perjury, unsworn falsification to authorities, false reports to law enforcement agencies, tampering with or fabricating physical evidence, hindering apprehension or prosecution and obstructing the administration of law. Each of these counts relates to allegations that Mr. Brown provided false testimony during the preliminary hearing and trial of Mr. Buckley; that Mr. Brown supplied spurious data and physical evidence to law enforcement agents regarding his knowledge of the Wilson homicide; and finally that Mr. Brown's fallacious and misleading actions obstructed the orderly administration of law and impeded the apprehension of the actual slayer of Kathy Wilson.

     The affiant's complaints have caused the Office of the Attorney General to conduct a compendious review of tangible items reflective of the investigation and trial of Jay William Buckley including:

     In addition, this Office has conducted numerous interviews with persons possessing knowledge pertinent to this inquiry, including but not limited to Barry Smith, Esquire (attorney for Mr. Buckley), John Aranyos, Esquire, Thomas Bonavita, Esquire and Ross McKeirnan, Esquire, (attorneys for Michael Brown), President Judge Robert L. Wolfe, District Attorney Joseph Massa, Trooper John Herzog and others.

     This Office has taken into consideration the extent, if any, of any possible prejudice or harm purportedly caused by Michael Brown's interactions with law enforcement agents and Brown's testimony during the criminal prosecution of the Afiant herein. In this regard it can not be gainsaid that Michael Brown was the linchpin of the Commonwealth's case-in-chief against Mr. Buckley. Each party in a criminal action must, of necessity, "take his witnesses as he finds them".

     In this case, crucial data relating to Mr. Brown can not be ignored. At the time of his arrest Mr. Brown was minor child of the age of sixteen. He had not completed the tenth grade of high school. According to Doctor Steinmeyer, a psychologist appointed by the trial court to evaluate Mr. Brown, Mr. Brown tested at a low intelligence quotient of 87 and was a person likely to be easily manipulated.

     Most significant, however, is the fact that Mr. Brown's vacillating, convoluting and faltering accounts of the Wilson murder was not a topic that was concealed from objective scrutiny under a veil of secrecy. Indeed, the prosecuting attorney addressed this matter at the very outset of the trial in the following parlance:

     To be sure, Mr. Brown's pattern of deception was patently obvious to the trial court, defense counsel, the defendant and the jury long before a single word of testimony was entered.

     A review of the trial record reflects that the prosecutor during his own direct examination of Mr. Brown, and at the very inception of his query, established that Mr. Brown had supplied a multitude of inconsistent descriptions and explanations of his knowledge of the Wilson homicide Moreover, there is no doubt that defense counsel was thoroughly prepared to capitalize upon each and every discrepancy in Brown's testimony long before he launched his cross-examination of his quarry. In fact the trial record discloses that defense counsel intensively cross-examined Michael Brown and successfully exposed myriad falsehoods and admissions of prior fabrications manufactured by Brown. Defense counsel marked on a blackboard a running tabulation of what he contended were "admitted lies" of Brown which numbered 767 at the conclusion of cross-examination. (Trial Transcript, Volume 6, p. 29.)

     The trial judge considered Mr. Brown's inconsistencies to be so crucial to the jury's ultimate verdict that he painstakingly instructed and warned them regarding his testimony; i.e., if jury concluded that Mr. Brown testified falsely as to any material fact, jury could disregard his entire testimony, (Trial Transcript, Volume 14, p. 784); jury could consider the fact that Mr. Brown had made ... numerous prior inconsistent statements and committed numerous perjuries in this case ... as a basis for "...disbelieving all or part of his testimony offered at trial", (Trial Transcript, Volume 14 pp. 815-816); jury could consider evidence of motive for Mr. Brown's testimony including threats to prosecute him, to withdraw his plea bargain and promises of reward money, (Trial Transcript, Volume 14, p.821); jury should consider that

Mr. Brown was an accomplice of Mr. Buckley and therefore should weight Brown's testimony " ... with great caution... a corrupt and polluted source ...". (Trial Transcript, Volume 14. p. 826).

     After assiduous consideration of the evidence herein, the most that can be said is that the Commonwealth's evidence, based substantially upon the attestations on Michael Brown, did not prove Mr. Buckley's guilt beyond a reasonable doubt. There is no doubt that Mr. Brown's testimonial ambiguities inured to Buckley's benefit by creating very reasonable doubt. Buckley can hardly complain of harm or prejudice to him when his trial resulted in a complete acquittal.

     In arriving at the decision to decline prosecution of this matter, various factors have been taken into account in order to assess the wisdom of electing to prosecute Mr. Brown over and above an evaluation of whether or not prima facie evidence of these alleged criminal violations exists and whether or not they could be proven by competent evidence in conformity with applicable rules.

     If the Commonwealth opted to prosecute Mr. Brown for these subject offenses, it would be necessary to present the facts and circumstances attendant to the Kathy Wilson murder, the subsequent investigations and arrests of Brown and Buckley, and the prior testimony of Mr. Brown. The Buckley homicide trial by itself consumed four and one-half weeks of trial at a cost to Warren County of $117, 400.00. There is no question that this case would absorb a greater amount of court time at a substantially greater cost.

     In that regard it can not be forgotten that Mr. Buckley's trial required that jurors were elected from Beaver County and housed and fed at county expense due to extensive pre-trial publicity in the Buckley case. So too in this case a change of venire or venue would in all likelihood be necessary to overcome the chronically pervasive publicity at an added cost to the taxpayers. Likewise, because Judge Wolfe is a putative witness in this case, another trial judge from another county would, in all likelihood, have to be appointed to preside over this matter at additional expense. Finally, the fact that Mr. Brown has been imprisoned at the Warren County prison for two years while awaiting disposition of the Buckley trial, for a crime he now claims he did not commit, cannot be overlooked.

      The foregoing factors weigh heavily in favor of recognizing the abject futility of attempting to punish Mr. Brown for engaging in a predictable pattern of conduct that continued into the Buckley trial. We are constrained to agree with the poignant observation of Judge Wolfe that; "if [Brown] is to be punished, it must be for the crime he committed and not for his fabrications." (Emphasis

added, Opinion, Judge Wolfe, Commonwealth v. Brown, October 21, 1991, p. 12.)

     This decision to decline prosecution rests upon matters wholly separate and divorced from the issue of whether prima facie evidence of the allegations of criminal conduct by Mr. Brown. exists. The decision would be the same whether or not a prima facie case could be established. The decision to disapprove the instant request for a private criminal complaint under the circumstances in this case is confined strictly to the policy considerations inherent in this Office as a public prosecutor for those reasons which are more specifically outlined above. Accordingly, the criminal complaint in this matter is disapproved.