ARTICLE # 21  

* Note

September 5, 1991 - Warren, PA

For Michael Brown, Wednesday was a case of deja vu all over again.

At an evidentiary hearing called to review his guilty plea and sentence in the Kathy Wilson murder case, aspects of Jay William Buckley's five-week-long trial this past spring came under intense scrutiny.

Hearing high-points included revelations, denials, and biting attacks of lawyers by lawyers in a continuation of the highly publicized, sometimes bizarre case.

Primarily, the chief state police investigator denied claims by Brown and his family members that Brown had been coached and coerced into testifying against Buckley.

Following the trial, Buckley was found not guilty of kidnapping, raping, and murdering Kathy Wilson of Jamestown, N.Y. The jury apparently chose not to believe Brown, the Commonwealth's purported eyewitness to the crimes. Under marathon grilling by Buckley's attorney, Barry Lee Smith, Brown admitted he lied more than 700 times in prior statements to police and at the trial itself.

Brown had testified in exchange for reduced charges. Instead of being an accomplice to kidnapping, rape, and murder, he pled guilty to lesser charges of indecent assault, unlawful restraint, and hindering the apprehension of a suspect.

This past June, Brown was sentenced to a total of seven to fourteen years in prison. He then complained he was threatened with the death penalty if he didn't go through with his "eyewitness" testimony. Brown now says the police and Warren County District Attorney Joseph A. Massa Jr. supplied him with factual details concerning the evidence in their bid to convict Buckley.

Judge Robert L. Wolfe heard numerous witnesses Wednesday, most called by Public Defender Thomas Bonavita on behalf of Brown.

He rendered no decision Wednesday and gave both Bonavita and Massa 10 days in which to file briefs.

Hearing highlights included:

Brown said police knew he wasn't involved in the Wilson case, "but they wanted me to be an eyewitness so they could prosecute Jay Buckley," he said.

When he wanted to recant his statements, Brown said he was threatened with the death penalty. "I had no choice," he said

As for the sentence he received, he said, "There's no way, if I knew I'd get seven to fourteen years I would have never entered that plea."

Brown's mother, sister, and former girlfriend all testified Wednesday that Pennsylvania State Police Trooper John Herzog, the chief investigator in the case, had said Brown would be eligible for $26,000. His mother, Janet Brown, also said she had met with Herzog, her son, and former girlfriend Brenda Snow at the Warren County Courthouse several times to coordinate their stories.

"I asked Mike how many stories are we going to have to come up with. He said, 'I don't know'," she said.

Massa asked Brown's sister, Nova Brown, whether she had ever been threatened. She said Buckley had threatened her. "Jay told me to tell Mike to keep his mouth shut or he would kill him," she said.

Herzog testified he had told Brown he might be eligible for the reward money. But Herzog denied that he had ever manipulated Brown's or other's testimony or had ever given information to Brown.

Massa asked him directly, "Did you program Michael Brown ... to falsely convict Jay Buckley?"

"No, sir," Herzog Replied.

McKeirnan said that during the trial, County Detective James Tridico, who works in the District Attorney's Office, showed him four or five cassette tapes of statements made by Brown. The tapes were never given to Smith.

McKeirnan said he asked Assistant District Attorney Maureen Flynn about the tapes and she told him they had been "taken care of. I don't know what that means."

McKeirnan's testimony came close to 5 p.m. Wolfe was about to continue the hearing when Massa and Flynn approached the bench for a sidebar conference with the judge.

Afterwards, he said that instead of seeking testimony from Tridico, he would have Bonavita listen to the tapes to determine whether a further hearing would be needed. If not, he said both Massa and Bonavita would have 10 days to submit briefs.

One of Smith's complaints before and during the trial was that he was not given information by the Commonwealth as required under the rules of discovery. Wednesday he testified that during the trial, he received an anonymous letter that Brown had recanted his statements implicating Buckley during a two-day meeting with state police at the Warren Holiday Inn.

As a result of that letter, at the trial Smith called Pennsylvania State Police Trooper William Miles to the stand. But what the jurors didn't know was that Miles had been asked by Massa to administer a polygraph or "lie detector" test to Brown. Polygraph tests are inadmissible in Pennsylvania courts.

On Wednesday Miles testified that he had wanted a private, relaxed setting to conduct his standard procedure: an exploratory "pre-test" interview followed by the administration of a polygraph test whose results could be calibrated according to numerical standards.

Miles' questions were based on statements Brown had made on April 4, 1990. He reviewed the statement with Brown sentence by sentence.

Wolfe asked him what the major inconsistencies were between the April 4 statement and the statement Brown gave Miles on June 13 and 14, 1990, at the Holiday Inn.

Miles said, "Practically everything in them. He went from watching the crime occur to not being involved."

Miles was unable to administer his standard polygraph to Brown. "The results of the polygraph were inconclusive," he said. He said it was the first time in his 17 years of administering such tests that he was unable to give the standard test.

Wolfe asked whether Miles had ever gotten the sense during the two-day session that Brown had been coached. "I got the impression Mr. Brown was trying to out-smart the authorities."

On further questioning by Wolfe, Miles said that even though he thought Brown was saying what police wanted to hear, Miles said he believed the police felt Brown had been a witness to the crimes.

Sniping between attorneys first came when Massa questioned Smith. Smith had told Bonavita that it was becoming apparent to him that Brown was changing his story based on information Smith was giving to Massa.

Smith said that for two years, Brown had said that Buckley kidnapped Wilson from the Chautauqua Mall. Massa told Smith that he planned to call six to eight witnesses supporting that kidnapping site.

Smith said he and private defense investigator Ronald Cotten had determined the kidnapping site was the Quality Market in Falconer, N.Y. Smith said after he told Massa that, "The next Mr. Brown statement was that she was kidnapped at Quality Market."

Bonavita asked Smith if he had any proof that the District Attorney and police were providing Brown with information about the case.

"All I know is that when I told them something, then it appeared in (Brown's) statements," Smith said.

On questioning about a statement Brown made that Wilson was taken to Buckley's campsite in Falconer, Massa asked Smith whether Smith and Cotten were the only people involved in the case with any analytical ability.

Smith said that after reading the 25 different statements Brown gave to police, "I became convinced that my private investigator and myself were the only ones with any analytical ability."

Physical evidence introduced jointly by Massa and Smith at the trial involved two empty beer cans and an empty bottle of Southern Comfort taken from a gravel pit. At the trial, Brown said he and Buckley had tossed some empty beer cans and a bottle at a gravel pit they had driven to just before the murder on May 18, 1988.

Smith produced information from the beer and whiskey manufacturers showing that the cans and bottle were manufactured after May 18, 1988, the date Wilson disappeared.

On Wednesday, Smith said the Commonwealth attorney's never told him they didn't plan on introducing the cans and bottle. He denied that Assistant District Attorney Maureen Flynn had ever told him the containers were useless to support Brown's statement.

It was a point of contention. Later, Flynn testified that she had indeed told Smith the bottle and cans had no bearing on the case.

During the discussion, Wolfe asked Massa why he had presented the bottle and cans into evidence anyway.

Massa said Smith was going to present the evidence. Even though the evidence showed that Brown's statement was inconsistent, Massa said he didn't want the jury to think that he had destroyed evidence.

Brown was arrested following an interview with state police at the Warren barracks on October 10, 1989. He was transported from Falconer to the barracks in a long "stretch" limousine.

State Police Trooper John Herzog said that four days earlier, Brown had told him he had helped Buckley move the bound and gagged Wilson from his van to the site where her remains were later found in Lander.

Herzog said that on October 10, he was unable to give Brown a ride to the Warren barracks. Former Warren County District Attorney Richard A. Hernan Jr. said he would make arrangements to get Brown to Warren.

"I had no idea it would be a limousine," Herzog said Wednesday.

Called by Massa, Hernan testified that in each of the early interviews, Brown had been giving police more and more information. Hernan said he felt that the way the interviews were proceeding, Brown would give them enough probable cause to arrest him.

Hernan said he wanted to avoid a possible future defense complaint that police had used an illegal extradition to move Brown from New York. So, "under a ruse," Brown was told that Munksgard's Limousine Service was going to be in the Falconer area and that it would pick him up. Hernan said he wanted to use a "non-police agent" so it would be clear that Brown went to the barracks voluntarily.

Earlier, Brown testified that when the Limo picked him up, he had expected that he would receive the $26,000 reward.

Hernan likened the use of the Limo to "a sting operation." He said he felt Brown's statements to police would lead to an arrest. So instead of getting a reward, following his statement to police, Brown was arrested on October 10, 1989, and charged as an accomplice to Wilson's kidnapping, rape, and murder.

Hernan said at the time he knew about the reward money but was not aware that Brown had been talking about it.

Bonavita asked Hernan that since Hernan was planning to leave the District Attorney's office by the end of 1989, whether Hernan wanted to "go out in style by making this big arrest?"

"No," Hernan said.