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In the summer of 1999, the U.S. Attorney’s Office in Washington, D.C., received the extraordinary and unsettling news that Johnny St. Valentine Brown Jr., a charismatic expert witness whom they had relied on in thousands of drug cases, had falsified his background and lied on the witness stand for at least 16 years. Prosecutors scrambled to find out just how pervasive Brown’s falsehoods had been � and to fend off a flurry of defense motions to quash convictions in dozens of pending cases. As the litigation winds down almost four years later, it turns out that remarkably few defendants have benefited from what once loomed as a tremendous windfall. Of the 50 or so cases challenged because of Brown’s conduct, prosecutors folded their hand in only six, conceding that a drug conviction was tainted by his testimony. About 40 defense challenges were rejected by trial judges in the D.C. Superior Court or the U.S. District Court for the District of Columbia, according to prosecutors and defense attorneys, while the defense won only one. And all four of the Brown-related cases that reached appeals courts, including two in January, went the prosecutors’ way. Brown, a D.C. police detective for 25 years until he resigned in disgrace in 1999, testified for decades as a government expert witness on how cocaine and other drugs are sold on the streets of Washington. He claimed that he had a doctorate in pharmacology from Howard University and was a board-certified pharmacist. Actually, Brown never attended Howard and was not board certified. In the summer of 1999, a lawyer representing the family of a police informant in a high-profile case against the city looked into Brown’s credentials and discovered the lies. In 2000, Brown pleaded guilty to eight counts of perjury and was sentenced to two years in prison. Robert Okun, chief of special proceedings in the U.S. Attorney’s Office, explains that prosecutors carefully examined the cases where Brown’s testimony had been challenged, sorting them into those they believed were defensible and those that had to be dealt away. “Where Brown’s testimony was very important, we conceded or tried to settle,” says Okun. “But there were cases where he didn’t lie, or where his testimony wasn’t that essential. And we never had any doubt about the truthfulness of his substantive testimony, only about his qualifications. Had there been some issue as to the substance, we would have taken a different position.” For defense attorneys, that isn’t nearly good enough. “It’s laudable that they conceded in some cases,” says Timothy O’Toole, a lawyer with the D.C. Public Defender Service who handled some of the Brown litigation. But, he adds, “The government shouldn’t have the last word.” Adds Samia Fam, deputy chief of the appellate division of the PDS: “Someone needs to police the prosecutors.” But both the D.C. Court of Appeals and the U.S. Court of Appeals for the D.C. Circuit have essentially agreed with the prosecutors’ view. What Brown did may have been reprehensible and in fact criminal, but according to the courts, it wasn’t enough to set the related drug convictions aside. Relying on precedent, the courts reasoned that to get a new trial, a defendant must show a reasonable chance that he’d be acquitted if he were tried again without a lying witness taking the stand. That’s a high standard for a defense lawyer to meet. At bottom, Brown’s lies almost always touched on his personal history, not the facts of the case � and his expertise amounted to street smarts, not the chemistry of DNA. “We ask whether there is a reasonable probability that the outcome of a new trial would be different from the result in the first trial,” wrote Judge Frank Schwelb for a unanimous panel of the D.C. Court of Appeals in Whitley v. United States, a 2001 case. “The answer to that question must surely be ‘No!’ “ In United States v. Gale, a Jan. 7, 2003, case from the D.C. Circuit, Senior Judge Stephen Williams took a tack that was slightly different but no more favorable to the defense. The court unanimously said Robert Gale, who had been convicted of several drug crimes, “offered no reason to believe” that if the government had known Brown was a liar, it “would have foolishly charged ahead, blindly offering Brown and exposing itself to his inevitable demolition on cross. Why would it have done so, rather than simply offering another expert?” Williams noted that “Brown’s expertise was drawn not from his command of some arcane field but from an experience that is widely shared in urban police forces.” Defense lawyers are acutely troubled by the way the courts have handled the Brown cases. “This speculation about how a hypothetical [second] trial would turn out is not what the Supreme Court intended,” says the PDS’s Fam. “This whole thing shouldn’t be swept under the rug.” O’Toole, who saw the D.C. Court of Appeals rule against him in another Brown case, Benton v. United States, on Jan. 23, says, “There doesn’t seem to be a mechanism for courts to fix cases when a government witness turns out to be a perjurer. “If the answer is that the government could have put on another witness who is a truth-teller, then why have a trial?” he asks. Now, says O’Toole, “If an eyewitness commits serial perjury, the government can just argue that ‘had we known this, we would have put on another witness.’ “ In Benton, O’Toole argued that Brown’s perjury was exculpatory information that the prosecution had to disclose under Brady v. Maryland � and that their failure to disclose “material” information required a new trial. But the court found that the information was not material since there was no “reasonable probability” that a jury would have rejected the whole case because of doubts about Brown’s reliability. The only decided Brown case that went for the defense remains United States v. Raymond Jones Jr., in which then-Senior U.S. District Judge Stanley Sporkin ordered a new trial in December 1999. In that case, Sporkin found that Brown’s testimony was material to Jones’ conviction and that “the only difference between this trial and [an] earlier trial that ended in a hung jury was the addition of Brown’s expert testimony.” Prosecutors could not retry the case for reasons unrelated to Brown. The case was dismissed. Okun says one case in which the government conceded a Brown-related motion without a contest was United States v. Robert Blocker, in which Brown testified about the chemical characteristics of narcotics. Lacking any pharmacological training, Brown was unqualified to give evidence on this issue. Fam says the PDS is “grateful that the U.S. attorney has vacated some of the cases. But they’ve done it, among other things, for tactical reasons, so that our best cases don’t reach the court of appeals and create bad law [for the prosecution].” “All of this is double-edged,” Fam adds. Fam insists that the appeals courts didn’t understand what kind of witness Brown was. “This guy was a big deal to the prosecution,” says Fam. “He wasn’t fungible with some other witness. These judges have no idea of how charismatic Johnny St. Valentine Brown was to a jury.”

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