On Thursday evening, Texas plans to execute Arthur Brown Jr. for the 1992 shooting deaths of four Houstonians in a drug house.
Though Brown has been on death row for nearly 30 years, legal claims filed after new death penalty public defenders took over the case last year make several dramatic arguments, including that Brown is innocent of the murders. Last week, Texas' Office of Capital and Forensic Writs asked courts to halt Brown's execution, arguing Houston prosecutors for decades hid evidence pointing to another suspect.
The attorneys also argue Brown is intellectually disabled to the point where it is unconstitutional to execute him under previous court rulings. And they claim Brown's trial was tainted by racism, saying a white juror has since said she knew immediately the Black defendant was a "thug" and had no doubt he would kill again.
"Arthur Brown Jr. is an innocent and intellectually disabled man incarcerated on Texas's death row as a result of sloppy police work, prosecutorial suppression of exculpatory evidence, corrupted eyewitness identifications, [and] false forensic testimony," the public defenders said in their filings last week.
So far, the appeals have been unsuccessful in state and federal courts, with judges largely saying the claims did not clear the high bar to consider appeals this late.
Harris County prosecutors deny they shielded evidence, saying attorneys could have found a witness interview pointing to another suspect earlier. The district attorney's office also disputes that Brown qualifies as intellectually disabled and argued the racial bias claim could have been raised earlier in the decades since Brown was sentenced.
"Simply put, the applicant's ‘new' evidence is of little value, and pales in comparison to the weight of inculpatory evidence," prosecutors said.
As of Wednesday evening, Brown had a final plea pending at the U.S. Supreme Court regarding his intellectual disability claim. If the high court rejects it, the 52-year-old man will be executed after 6 p.m. in the Huntsville prison's death chamber.
Brown and two other men were convicted in the 1992 execution-style killings of Jose Guadalupe Tovar, Jessica Quinones, Audrey Brown and Frank Farias. The four victims each were tied up in Tovar's Houston home and shot in the back of the head.
Tovar and his wife, Rachel, were known drug dealers who supplied cocaine and marijuana to Brown and the other men, according to court documents. Rachel Tovar and Nicolas Cortez were also shot in the head but survived.
The murders and Brown's subsequent trial were sensational, with allegations of police and prosecutorial coercion of witnesses, shocking recantations on the stand and Brown's sister jailed in contempt and later charged with perjury.
Three of Brown's sisters testified for the state, placing Brown at one of their houses in Houston the night of the murders after a drug buy, according to court documents. Two said he offered to pay them to take his van filled with drugs back to where he lived in Alabama, while he flew home the next day.
After being held in contempt for initially refusing to testify despite having been granted immunity, one sister, Carolyn Momoh, testified that Brown had told her he had "shot six Mexicans." On cross-examination, Momoh said her earlier statement was false, and she and the other sister said on the stand that they testified because police had threatened to take their kids away if they did not."I was told I had to testify to that statement," Momoh said, according to the filing. She was later prosecuted on a perjury charge for changing her testimony.
Two other men, Marion Dudley and Antonio Dunson, were also convicted of capital murder in the case. Dudley, who maintained his innocence until his death, was executed in 2006. Dunson is serving a life sentence.
Defense attorneys have always considered the case against Brown flimsy at best. Aside from the recanted testimony, prosecutors largely relied on eyewitness accounts by the slayings' two survivors, both of whom had questionable recall after being shot in the head.
At trial, Rachel Tovar and Cortez both identified Brown as their assailant, but Tovar gave conflicting information to police in the hospital, and Cortez had earlier failed to pick Brown out of a photo lineup, according to court filings. In Dunson's subsequent trial, Cortez again failed to identify Brown from photos.
The physical evidence tied to the murders — guns believed to be tied to Brown and believed to have fired the fatal rounds — were recovered elsewhere, including on another man after he was killed in a similar attempted robbery at a drug dealer's house in Alabama. That man, Terrell Hill, was the focus of the defense's theory at trial, pinning him as the likely shooter.
The science used to connect the guns to the bullets found at the scene was later discredited on appeals, but the Texas Court of Criminal Appeals still upheld Brown's sentence. The judges ruled the jury still likely would have convicted Brown without the ballistic evidence.
But in a police interview kept out of trial and undisclosed to Brown's attorneys until this year, the son of Rachel Tovar said his mother used a nickname for Hill when describing her assailants to police in the hospital. She told police in one interview she heard the nicknames "Red" and "Squirt" being used in the attack and that her son would know them from answering the door.
When police interviewed her son, Anthony Farias, he repeatedly said Red's real name was "Terrell," according to Brown's new filing. Prosecutors did not call Farias to testify at trial, which meant they did not have to give defense attorneys a copy of his interview — a point Brown's lawyers called into question at trial.
"They took a two-hour video tape of Anthony Farias. What did Anthony Farias have that was so important that they videotaped it and why isn't he here to testify?" the prisoner's attorney said at his 1993 trial, according to court records.
Now, Brown's attorneys say the evidence requires a renewed look at his innocence claim.
"Mr. Brown presents to this Court long-suppressed information by the Harris County District Attorney's Office (HCDAO) pointing to Marcus Terrell Hill, a Tuscaloosa drug dealer who was shot and killed trying to rob a crack house in Alabama while in possession of the alleged murder weapon in this case, as the party responsible for the murders for which Mr. Brown and his co-defendants were wrongly convicted," public defenders wrote in appeals last week.
Harris County District Attorney Kim Ogg's office said the interview could have been acquired by appellate attorneys years ago when lawyers conducted public information reviews of the state files. It's unclear if the video tape was in the case file at that time. The state also said Faria's testimony would have added little weight anyway, as it was hearsay.
Plus, prosecutors said Hill had an alibi. His cousin had said, backed up by rental car records, they arrived in Houston the day before the murders but couldn't find a hotel room so they drove back to Alabama, according to court records.
Ogg's office stood behind Brown's conviction, noting that Brown's friends referred to him as Squirt, and prosecutors credited Rachel Tovar and Cortez's visual identifications of Brown. The state also continued to point to Momoh's quickly recanted testimony, saying Brown told her he shot Mexicans and that her gun had gone missing.
"Victims' rights matter," said Assistant District Attorney Joshua Reiss. "The victims in this case have suffered for decades from the carnage that Arthur Brown Jr. caused them to live with."
Aside from Brown's innocence claim, his attorneys have also attempted to halt his execution on claims that he is intellectually disabled.
Since 2002, the U.S. Supreme Court has barred the execution of those with an intellectual disability, deeming it violates the Eighth Amendment's ban against cruel and unusual punishment.
In Brown's case, attorneys provided evidence that Brown had been in special education classes since he was a young child and was deemed "educable mentally retarded" in elementary school. In third grade, his IQ was measured at 70, generally considered within the range of intellectual disability. Brown's attorneys also note he was typically thought of as "slow" throughout his life, and his friends and family learned to talk to him in simple language.
Prosecutors countered that Brown was not intellectually disabled but instead had a learning disability. They noted that his IQ scores in middle school bumped up to the high 80s, with the school psychologist suggesting he be moved from the class for the "mentally retarded" to a class for students with learning disabilities.
In his final appeal, Brown's attorneys are hoping the disability claim will prompt the nation's high court to halt his execution. For years, the high court has knocked the Texas Court of Criminal Appeals' methods for determining such disabilities, sending one case back repeatedly.
"No court has ever heard the merits of this Eighth Amendment claim because the Texas Court of Criminal Appeals (TCCA) has applied a novel procedural bar to his ID claim, wholly inconsistent with its practice in numerous other cases," Brown's lawyers said in their Wednesday filing.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/03/09/texas-execution-arthur-brown-jr/. The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.