Nevada Man Convicted by Prosecutorial Misconduct and ​‘Woefully Inadequate’ Defense Counsel Released After 33 Years on Death Row

Thirty-three years after a tri­al a fed­er­al appeals court described as ​“a mix­ture of dis­turb­ing pros­e­cu­to­r­i­al mis­con­duct and woe­ful­ly inad­e­quate assis­tance of coun­sel,” a Las Vegas tri­al court freed Paul Browning (pic­tured) from Nevada​’s death row. On August 21, 2019, Clark County District Judge Douglas Herndon ­— who in March had dis­missed mur­der and relat­ed charges against Browning ­— ordered state cor­rec­tions offi­cials to release Browning from cus­tody pend­ing the out­come of the prosecution’s appeal of his order dis­miss­ing the charges. Browning’s lawyer, Tim Ford, had ques­tioned Browning’s con­tin­ued deten­tion, argu­ing: ​“How can Mr. Browning be sit­ting on death row, as he is now, when this court has said all charges against him are dis­missed? He’s not even a pre­tri­al detainee, and he’s on death row. That can’t be.”

Browning was con­vict­ed and sen­tenced to death in 1986 for the rob­bery and mur­der of Las Vegas jew­el­er, Hugo Elsen. Browning was rep­re­sent­ed at tri­al by a lawyer who had been prac­tic­ing crim­i­nal defense for less than a year and failed to inter­view the police who respond­ed to the scene, exam­ine the evi­dence against Browning, or inves­ti­gate the crime. The Nevada Supreme Court over­turned Browning’s death sen­tence in 2004 as a result of counsel’s inef­fec­tive assis­tance in the penal­ty phase of tri­al, but a sec­ond jury — hear­ing the same evi­dence against him — resen­tenced Browning to death in 2007. 

In 2017, the U.S. Court of Appeals for the Ninth Circuit over­turned Browning’s con­vic­tion based on ​“extreme mal­func­tions” dur­ing the tri­al. With the death of pros­e­cu­tion wit­ness­es whom Browning’s tri­al coun­sel had failed to ade­quate­ly cross-exam­ine at tri­al, Judge Herndon dis­missed the mur­der and relat­ed charges against Browning, say­ing ​“a fair tri­al con­sis­tent with due process is no longer possible.”

Browning has con­sis­tent­ly main­tained his inno­cence. In his post-con­vic­tion appeal, he pre­sent­ed evi­dence that police and pros­e­cu­tors had with­held evi­dence of a bloody foot­print found at the scene that did not match Browning’s shoes or foot size, mis­rep­re­sent­ed blood evi­dence in the case, manip­u­lat­ed eye­wit­ness tes­ti­mo­ny, failed to dis­close ben­e­fits it offered to a key wit­ness who may have com­mit­ted the mur­der and framed Browning, and that the stab wounds suf­fered by Elsen did not ​“coher­ent­ly coin­cide” with the knife pros­e­cu­tors claimed Browning had used to com­mit the killing. Browning also argued that a min­i­mal­ly com­pe­tent defense inves­ti­ga­tion would have revealed the flaws in the prosecution’s evi­dence and the fal­si­ty of the rep­re­sen­ta­tions the pros­e­cu­tion had made to the jury.

The prosecution’s case unrav­eled in the post-con­vic­tion pro­ceed­ings. Prosecutors had told the jury that Elsen’s blood had been found on a tan jack­et owned by Browning. However, Elsen — who was able to describe his assailant before he died — told police the killer had worn a blue jack­et and lat­er DNA test­ing showed that of the blood on Browning’s jack­et was not Elsen’s. Elsen also said his assailant had shoul­der-length Jheri curls, which was com­plete­ly incon­sis­tent with Browning’s Afro-styled hair. Elsen’s wife failed to iden­ti­fy Browning in a line­up, but lat­er tes­ti­fied at tri­al that he was the killer. A white wit­ness who worked near the crime scene told police she had seen a man run by after the mur­der and thought it could have been Browning, but when police asked if she could be ​“more sure” about whom she had seen, she said, ​“No, I wouldn’t think so. No … They all look the same, and that’s just what I think when I see a black per­son, that they all look the same.” At tri­al, though, she unhesi­tat­ing­ly tes­ti­fied that Browning was the man she had seen. 

Following his release, Browning told the Las Vegas Review-Journal, ​“I just want to find a lit­tle bit of peace after com­ing through all this mad­ness.” Speaking about his time on death row, he said: ​“Being in there that long, you see a lot of things that affect you. You get to know peo­ple, no mat­ter how hor­ren­dous their crimes were. You see a lot of death — nat­ur­al caus­es, sui­cide. It affects you.” He also spoke about the mis­con­duct in his tri­al: ​“It’s about me sit­ting there in court, start­ing with the pre­lim­i­nary hear­ing, and you see the wit­ness­es tes­ti­fy­ing against you — all of the mis­con­duct that occurred dur­ing tri­al. It’s just unjust. And it kind of hits you, right here in your gut. And that’s what has driven me.”