Wrongfully jailed Lincoln-Lemington man plans suit
February 1, 2014 11:17 PM
DeAndre Brown, left, and his attorney, Massimo Terzigni, discuss Mr. Brown’s case. Mr. Brown was wrongfully arrested in September for armed robbery and forced to sit in jail for a month because police ignored his alibi.
By Paula Reed Ward and Liz Navratil / Pittsburgh Post-Gazette
DeAndre Brown was inside his Chevy Trailblazer at Kelly and North Lang streets in the city's Homewood section just before 11 a.m. Sept. 16.
The young man, who worked security for the Carnegie Library branch there, looked on in disbelief when at least five police officers swarmed his vehicle, pulled him from the SUV and handcuffed him.
Mr. Brown, 26, of Lincoln-Lemington, was wanted on a warrant for a Sept. 10 armed robbery at Dana's Bakery in Homewood.
"I told them they had the wrong person from the moment they pulled me out of my truck," Mr. Brown said in an interview last week. He had a solid alibi -- he was several neighborhoods away, at the Carnegie Library in Oakland, at the time of the robbery.
Major Crimes Lt. Kevin Kraus said that Mr. Brown during his initial interview did not provide police with the specific details that he was at the library for a work meeting during the robbery. But the defense attorneys and the Allegheny County district attorney agree that by the end of Mr. Brown's Sept. 24 preliminary hearing, both the prosecutor and the lead detective knew Mr. Brown had a potentially strong alibi.
Still, he remained in the Allegheny County Jail for a month until Oct. 18, when a judge was informed of the alibi information and allowed his release to home electronic monitoring while it was investigated.
On Nov. 1, the Allegheny County district attorney's office withdrew all the charges against Mr. Brown.
Now, he plans to file a federal lawsuit within a month that could include claims for wrongful arrest, malicious prosecution and false imprisonment, stemming from allegations that detectives failed to check his alibi "without unreasonable delay."
Experts wonder why it took so long for Mr. Brown and his attorneys to be heard and they question why there aren't better safeguards within the Pittsburgh Police Bureau or the district attorney's office to preclude such incidents from happening.
"It just seems to me it is incumbent on any professional police department or prosecutor's office to investigate that as soon as possible," said David Rudovsky, a well-known civil rights and defense attorney in Philadelphia. "You're dealing with a person's liberty.
"It's reckless and inexcusable not to have a protocol that requires that kind of investigation."
Lloyd Bundy was working at Dana's Bakery on North Homewood Street on Sept. 10 when, he told police, a man with a T-shirt pulled over the bottom of his face entered about 2:45 p.m., pointed a large silver revolver at him and demanded money.
At one point, according to the criminal complaint, the shirt slipped down, giving Mr. Bundy a clear view of the robber's face before he made off with about $80.
The next day, Mr. Bundy told police, the suspect came back.
"Lloyd Bundy told me that when he saw [DeAndre Brown], his heart began to race and he knew that the male that had just entered his store was the same male that had robbed him," wrote Pittsburgh robbery Detective Nicholas Bobbs in the criminal complaint.
Mr. Bundy recorded a video of the suspect's vehicle as he left and turned it over to the police.
It traced back to Mr. Brown and his 2003 Chevy Trailblazer.
Detective Bobbs got a warrant for Mr. Brown's arrest, and the information went out throughout the bureau.
In the meantime, Mr. Brown, who had worked at the library in Homewood as a security guard for more than three years -- and also worked as a valet -- continued about his business, unaware he was being sought as a robbery suspect.
"I went to work that whole week," he said. "If I were a fugitive, I wouldn't have gone freely to work and freely to home."
But that all changed when he was arrested Sept. 16.
The attorneys who represented Mr. Brown in his criminal case do not fault police for initially arresting their client.
"You cannot ignore an eyewitness identification," attorney Dan Muessig said. "I think things started to verge into being egregious once he repeatedly gave him his alibi, and they did nothing with it -- not even a cursory search."
The initial arrest of Mr. Brown was prompted by the identification of him by Mr. Bundy, who later picked Mr. Brown's picture out of a photographic array.
Typically, said Allegheny County District Attorney Stephen A. Zappala Jr., that is enough to establish a prima facie case at a preliminary hearing.
But witness identification has come under intense scrutiny in recent years as being inherently unreliable. While it can present well in a trial, said Lisa Hasel, assistant professor of criminology at the University of Florida, it is not always accurate.
Mr. Brown's case, she said, provides an example of what investigators call "unconscious transference," when someone identifies a suspect because he looks familiar rather than because he actually committed the crime.
Mr. Brown frequented that bakery nearly every day.
And even when a witness is certain -- as Mr. Bundy initially thought he was -- Ms. Hasel continued, "There is not a correlation between confidence and accuracy. You would think that if the person was more accurate, they'd likely be more confident. Eyewitnesses are often all very confident. They start replaying this over and over in their head and [the face of] the person who they've identified ... has become seared in there. Unfortunately, it's very difficult to remedy that."
Within the first two days following Mr. Brown's arrest, his uncle was able to piece all of the alibi information together and pass it on to the defense.
Mr. Brown was at a training session at the Carnegie Library's main branch in Oakland on the day of the robbery. A sign-in sheet showed he entered the training just after 2 p.m. The library also has security cameras that captured images of him entering the building.
By the time of the preliminary hearing, defense attorneys had a copy of the sign-in sheet as well as the names of witnesses there.
Further, they were working on getting a copy of the library's video surveillance to show Mr. Brown's arrival.
According to Patrick Nightingale, who also represented Mr. Brown, he approached Detective Bobbs before the preliminary hearing started on Sept. 24.
"I told him, 'I have an alibi witness, are you willing to talk to him?' And he said, 'I have an eyewitness, and we're moving forward with the prelim.' "
Mr. Nightingale had brought his own witness -- a fellow library employee who had also attended the training -- to the hearing, but he was not permitted to testify.
The attorney knew that criminal rules prohibit defendants from presenting alibi evidence at the preliminary hearing stage, but Mr. Nightingale was frustrated.
"I had an alibi witness and a sign-in sheet, and nobody would listen to me," Mr. Nightingale said.
He attempted instead to get Magisterial District Judge Ronald N. Costa Sr. to reduce Mr. Brown's $75,000 bond, but the prosecutor objected.
"What absolutely shocks me is when I present an alibi to a city of Pittsburgh detective, that he just did not care," Mr. Nightingale said. "He wouldn't look at my witness. He wouldn't look at my sign-in sheet. ... He wouldn't even take [the witness'] name and telephone number."
The defense does not fault the prosecutor who handled the preliminary hearing, Albert P. Veverka.
Instead, Mr. Nightingale said, he feels the blame rests solely on Detective Bobbs, who he said never got a search warrant to look for evidence of the crime at Mr. Brown's house. There were no records at Pittsburgh Municipal Court to indicate that Pittsburgh police attempted to obtain a search warrant for Mr. Brown's address between the time of the robbery and the time the charges were withdrawn.
Detective Bobbs did not respond to requests for comment.
Lt. Kraus, who oversees the robbery squad and others, said he took issue with Mr. Nightingale's account of his discussion with the detective.
"The claims made by Mr. Nightingale in reference to the interaction with Detective Bobbs at the preliminary hearing -- those claims are highly disputable," he said.
"We're not disputing that he told Bobbs that he had an alibi witness," the lieutenant said. But, he said, Mr. Nightingale did not provide the detective with specifics about the alibi witness and said he had only a partial sign-in sheet for the meeting.
Detective Bobbs, who Lt. Kraus described as "ethical and hardworking," told the assistant district attorney that he had been informed there was an alibi witness and the prosecutor decided to move forward with the hearing, the lieutenant said.
Mr. Zappala said the role of a prosecutor at the preliminary hearing is to simply show there is sufficient evidence to move a case to Common Pleas Court for trial.
While Mr. Veverka could have contacted the robbery unit supervisor after the hearing or put a note in the file to make it clear what was happening in the case, Mr. Zappala said, he did not.
But, the prosecutor continued, Mr. Nightingale did then contact the head of the unit, Ilan Zur, and it was on Oct. 15 that Mr. Zur assigned the matter to Assistant District Attorney Summer Carroll, who handles criminal cases when they get to Common Pleas Court.
That same day, according to an office memo, she instructed Detective Bobbs to investigate Mr. Brown's alibi.
The next day, Ms. Carroll reviewed the library video, and the following day, Mr. Brown had his bond reduced to electronic monitoring. He was released from jail a day later.
In the two weeks that followed, Detective Bobbs met with the alibi witness as well as the victim, Mr. Bundy.
On Nov. 1, when Ms. Carroll and Detective Bobbs met with him, Mr. Bundy agreed the charges should be withdrawn.
As for the detective's apparent failure to investigate the alibi when he first heard about it at the preliminary hearing, Mr. Zappala said, "I can't explain that. Bobbs has to explain that.
"Anytime you have evidence that goes to exonerate somebody, you have to explore it, especially if the person is in custody," Mr. Zappala said. "Your obligation is to continue to work the case from arrest to the time of trial."
Lt. Kraus said Detective Bobbs received the first usable alibi information on Oct. 15, after the district attorney's office instructed him to investigate the alibi.
"It's not uncommon for people to say you have the wrong guy when they're initially arrested and that occurred in this case. However, specific information was not provided to the investigating detective until three weeks after the preliminary hearing," he said.
Mr. Muessig said the lack of investigation in the Brown case is "chilling."
"I was, and continue to this day to be, galled that they refused to pursue any other avenues or theories," he said.
When detectives receive detailed information regarding alibis, "we fully expect our detectives to immediately investigate the veracity of that information and work with the district attorney at that point to determine how to proceed," the lieutenant said. "It does us absolutely no good to put the wrong person in jail, and certainly I don't know of any police officer that operates with that objective."
David Harris, a law professor at the University of Pittsburgh, said it is not unusual for a defendant to claim an alibi, and it's also not hard to understand why a detective might be skeptical.
Often, the alibi includes a mother or a girlfriend.
In a situation like Mr. Brown's, where the defense quickly presents credible evidence, Mr. Harris said, "I would think that good police work would call for you to investigate as quickly as possible."
The legal standard, he said, is "without any unreasonable delay. ... It is not trivial when somebody is sitting in jail."
A person forced to remain incarcerated could lose employment, housing, even relationships, Mr. Harris said.
Mr. Brown, who has no previous criminal convictions, did not want to speak extensively about his personal life or the impact of being away from his family for a month. "His whole life was upended," Mr. Muessig said.
"That's a tragedy when somebody is in jail for a crime they didn't commit," Mr. Zappala said.
His office conducts a lot of training sessions for officers to make sure they understand citizens' constitutional rights.
A way to prevent problems like what happened with Mr. Brown, he said, would be to have more prosecutors available to review cases earlier in the process, but that is prohibited by budgetary constraints.
Acknowledging that Mr. Brown spent 30 days in jail for a crime he did not commit, the detective's supervisors conducted a review of the case. Lt. Kraus would not discuss the outcome of that review.
Pittsburgh police, in their initial training and refresher training throughout their careers, are told there is a "standard of practice" that requires them to vet alibis, the lieutenant said.
"It's pretty common knowledge that any time information, alibi evidence or information is discovered that it's investigated immediately."
Mr. Harris said that it seems as though leadership of the police and prosecuting attorneys would want an explanation of what happened.
Massimo Terzigni, the civil lawyer representing Mr. Brown in his potential lawsuit, said his client's rights were "clearly violated.
"There was clearly exculpatory evidence that was ignored," he said. "I don't know how, if someone tells you where they were, you don't investigate it.
"It doesn't seem like it's beyond the scope of what they should be doing for a proper constitutional investigation."
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