The man whose state court conviction for setting a fire that killed three Pittsburgh firefighters in 1995 was set aside due to prosecutorial misconduct, will have to face a retrial after all in federal court. That decision was handed down last week by US Third Circuit Court of Appeals in a ruling that offers a good review of the law on double jeopardy.
Gregory Brown Jr. was convicted of setting the Bricelyn Street Fire on Valentine’s day, 1995. The fire claimed the lives of Captain Thomas Brooks, 42, Patricia Conroy, 43, and Marc Kolenda, 27. The state’s theory was that Brown, 17 at the time, set the fire at the request of his mother, Darlene Buckner, so she could collect on a renter’s insurance policy.
Brown maintained his innocence and claimed that two key prosecution witnesses lied about receiving payments from the government in exchange for their cooperation. As explained by the Third Circuit:
- ATF concluded that the fire was intentionally set and offered a $15,000 reward for information leading to arrest and conviction.
- A witness, Keith Wright, came forward with testimony undermining Brown’s alibi that he had been shopping with his mother at the time of the fire.
- Another witness, Ibrahim Abdullah, said Brown later confessed that he had started the fire.
- Local, state, and federal authorities formed a joint prosecution team and brought Brown’s case in state court.
- In 1997, Brown and Buckner proceeded before a consolidated jury trial.
- The joint prosecution team consisted of an Assistant District Attorney for Allegheny County and an Assistant U.S. Attorney.
- The prosecution’s witnesses denied receiving payment or having been promised payment in exchange for their testimony.
- The jury convicted Brown on three counts of second-degree murder, two counts of arson, and one count of insurance fraud.
- Brown was sentenced to three consecutive terms of life imprisonment for each murder conviction and a consecutive term of 7.5 to 15 years’ imprisonment for the arson convictions.
Through the assistance of Project Innocence, Brown was successful in having the state law conviction overturned due to the prosecution’s failure to disclose the payments. He then sought to have the state law charges dismissed because subjecting him to a second trial following such prosecutorial misconduct would constitute double jeopardy. At that point, a federal grand jury indicted Brown on federal charges for setting the fire. Thereafter the state decided not to pursue a retrial.
Brown’s legal them then sought to have the federal changes dismissed. As explained by the Third Circuit:
- Brown moved to dismiss the federal indictment.
- He argued that (1) the prosecution’s misconduct violated his due-process rights and a new trial cannot cure that violation; (2) the Double Jeopardy Clause barred the second prosecution; (3) the statute of limitations barred the prosecution; and (4) the prosecution was vindictive because it sought enhanced penalties through federal indictment.
- To support his claims, Brown sought to subpoena records regarding the coordinated efforts of state and federal prosecutors.
- The District Court granted the subpoena. The prosecution turned over two sets of documents, but Brown moved to compel production of other documents he thought would be more responsive to the dual-sovereignty issue.
- The District Court denied Brown’s motion to compel because the requested documents went entirely to the dual-sovereignty argument, and the court declined to reach the dual-sovereignty issue.
- The Supreme Court reaffirmed the vitality of the dual-sovereignty doctrine in Gamble v. United States.
- After hearing arguments, the court denied the motion to dismiss.
- The Double Jeopardy Clause says that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
- But the clause’s prohibition against a second prosecution for the same offense is not absolute. Two examples are relevant here.
- First, under the trial error rule, the Double Jeopardy Clause “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.”
- Second, the dual-sovereignty principle allows a federal indictment for the same conduct punished under state law—and vice versa— because the two prosecutions, under different sovereigns, are not “for the same offence.”
- The District Court held that the dual-sovereignty principle forecloses Brown’s motion to dismiss the federal indictment.
- We will affirm the court’s denial of Brown’s motion to dismiss, but the trial-error rule is the more appropriate avenue for dismissal in this case.
- We will affirm the District Court’s denial of Brown’s motion to dismiss the indictment and its denial of Brown’s motion to compel discovery.
Here is a copy of the decision: