Andre Brown has been behind bars for over 20 years, – since his arrest in 1999 -when he was first accused of attempted murder. He has proclaimed his innocence since then and has filed repeated motions to get his conviction thrown out.
Judge David Lewis of Bronx Supreme Court, after reading Andre’s latest motion, filed by his attorney Oscar Michelen, ordered that a hearing was required to weigh Andre’s claims. That hearing was held in March of this year and the Court heard oral argument in July. At the hearing, Jeffrey Deskovic of The Jeffrey Deskovic Foundation for Justice, himself an exoneree and who became a lawyer after being cleared by DNA of a murder for which he served 16 years in prison, joined Andre’s legal team.
On December 1, 2022, Judge Lewis issued a 93-page decision outlining the evidence presented by Mr. Brown and his lawyers. Judge Lewis found that Mr. Brown’s trial lawyer, Thomas Lee, was ineffective for failing to produce medical evidence at the 1999 trial that Andre had suffered a serious gunshot wound to his right leg that would have prevented him from being able to commit the crime; it was alleged that the shooter ran towards the victims and chased one of them for more than the length of a City block.
While the Judge found that the medical evidence Andre presented – which included the testimony of Dr. Ronald Simon, one of his actual surgeons from 1998 – was compelling and credible, he ruled that it was not enough to establish his actu
innocence as a matter of law because there were eyewitnesses who picked Mr. Brown out of a lineup. He did find however, that Lee was ineffective for utterly failing to provide any medical evidence to the jury. In its decision the Court stated:
Based on Dr. Simon’s testimony, the medical records and Mr. Brown’s own testimony, the court finds that Mr. Lee failed to provide meaningful representation
of Brown at his trial. Further, the court finds that had the medical evidence been presented to the trial jury, the outcome for the defendant would be more favorable…Had the jury heard the evidence and the cross-examination of Dr. Simon’s testimony, it would have been highly likely that the trial would have had an outcome likely to lead to an acquittal. If the defendant could not run, then the eyewitnesses are mistaken and misidentified the gunman.
The BXDA must now decide if it will re-try Mr. Brown or appeal the court’s ruling. Mr. Michelen, stated that he is also considering appealing. “While we are delighted that the Court agreed with our arguments and evidence about his lawyer’s failings, we believe that the Court ‘s own opinion establishes that we also proved Andre’s innocence, so we are disappointed that Andre did not get the full measure of justice he deserves.”
Mr. Deskovic added: “We look forward to reuniting Mr. Brown with his family and continuing the fight to establish not just his freedom but his actual innocence.”
The next step will be to argue for Mr. Brown’s release on bail while he awaits the BXDA’s decision on what they are going to do with his case. The BXDA has stated that they will oppose any release or bail.
Update: We just spoke to Deskovic, who told us- “Andre Brown was granted ROR today. He will very likely be physically released tomorrow.”
