Convicted Rapist Asks For Look at DNA

By Rachel Tobin Ramos (rramos@amlaw.com), Fulton County Daily Report, January 5, 2004

Today, a convicted rapist and thief, locked up for 16 years, will get a new shot at freedom. Joseph Lee Brown, imprisoned at age 20 for a rape and a robbery he says he didn't commit, should count himself among the lucky prisoners.

His case is one of the first taken by the Georgia Innocence Project, a fledgling nonprofit whose mission is using DNA testing to free those who've been wrongly prosecuted.

Brown's case is scheduled to go before Southern Circuit Chief Superior Court Judge H. Arthur McLane today. Brown's lawyers say they plan to request a post-conviction DNA test and a new trial.

Aimee R. Maxwell, executive director of the Georgia Innocence Project, and two pro bono lawyers, Saleem D. "Sam" Dennis and John G. Edwards, both of Valdosta, will represent Brown.

Brown's case came to the project in 2002, when one of his high school teachers contacted the group for help. An intern there called the Lowndes County clerk and learned that DNA evidence in Brown's case was sitting in a filing cabinet in Valdosta.

Evidence From Assault Kit
The evidence, taken from a sexual assault kit, contains semen and blood samples from the rape victim that could show Brown was not the real assailant, Maxwell said.

She added that Brown was fortunate that the DNA evidence survived, because it could have been thrown away after the first appeal. A law passed last year by the Georgia General Assembly now requires that DNA evidence be maintained for 10 years.

Maxwell said Brown's was among the first cases her group chose in part because the DNA evidence still exists. She also said it was an attractive case for her group because the victim of the rape never saw her attacker, which makes identity a major question in the case.

According to Maxwell, DNA testing wasn't available until five years after Brown's 1987 conviction. She added that Brown's blood type never was matched to the evidence in the sexual assault kit.

Monday's hearing will focus on who will test the DNA, Maxwell said. She added that district attorneys typically don't object to testing if DNA evidence still exists.

The Lowndes County assistant district attorney assigned to the case, Robert T. Gilchrist, couldn't be reached for comment because his office was closed for the holidays.

Brown, 36, says he was framed for the crime by an acquaintance and circumstantial evidence.

Investigations Began in '03
The Georgia project was founded in August 2002 and began actively investigating cases in January 2003. The case work is done primarily by volunteer law students and lawyers throughout Georgia.

The project receives funding from the Georgia Bar Foundation, the Lawyers Foundation, AT&T Foundation, Hewitt Foundation, ChoicePoint Cares, the Charles Edmundson Foundation and private donations.

One of only six open cases the legal nonprofit has accepted, the hearing will mark the group's first appearance in court and possibly the group's first DNA test.

Maxwell said that soon everyone-including the judge, district attorney and parole office-could know for sure if Brown rightly was convicted of the crime.

Nationally, more than 140 prisoners have been released after DNA evidence showed the wrong person was incarcerated.
Georgia has had three such cases, including that of Calvin C. Johnson Jr., who now serves on the Georgia project's board. He recently published a book about his experiences in prison, called, "Exit to Freedom" (University of Georgia Press, 2003).

Long Odds
The odds of getting the Georgia Innocence Project to take a case are 133-to-1. While better than most lotteries, it's still a long shot. The project has received requests from over 800 prisoners seeking help with their cases.

But winning the case lottery doesn't always mean winning freedom.

Maxwell said the National Innocence Project, with which the Georgia project is affiliated, reports that in more than half its cases, DNA tests confirm the right person is in prison.

Maxwell said she isn't attached to the outcome, and that Brown has signed a contract stating he understands the test results could further implicate him in the crime.

"Without hesitation, he says do the test," Maxwell said. "He's very sure. We want to know one way or another. … If he were arrested today it would be tested."

Who Pays for Tests?
Maxwell said today's hearing should involve the specifics of testing, including which private lab will test the DNA evidence, and whether the state will pick up the $4,000 tab for doing up to four tests.

The Georgia Bureau of Investigation crime lab, which typically tests the DNA samples, isn't equipped to test older evidence of this kind, said Maxwell. The nonprofit, which has two paid staff and a bevy of interns and volunteer lawyers, doesn't have a budget that supports paying for these kinds of tests, said Maxwell. But if needed, she said, they'll find the money.

Brown's Wallet Becomes Evidence
According to the Georgia project's press release on the case, the following events led to Brown's conviction. On July 7, 1987, two men broke into a Valdosta home at 2 a.m. A woman who lived in the house woke up to see a white male in her bedroom.

He told her to roll over and cover her head. She alleged that another man, whom she never saw, proceeded to rape her at knifepoint. The woman said she knew the man was black because of his voice. The white man continued to search the house.

A month later, a white suspect was arrested in a truck stolen the night of the attack. Philip Mierzejewski admitted to the burglary. Mierzejewski then told authorities that Brown, whose wallet was found inside of the truck, had raped the woman.
In December of 1987, Brown was convicted of theft by taking, rape and burglary, and sentenced to life without parole. He's serving his sentence in Macon State Prison.

According to Maxwell, Mierzejewski's testimony was used to convict Brown. Mierzejewski, who bargained to lesser charges, was convicted of robbery and released after serving less than two years of his 8-year sentence, Maxwell said.
Brown says he doesn't know how his wallet ended up in the stolen truck, Maxwell said. However, she said he admits that he and Mierzejewski had met at a party several months before the incident and started to hang around together.

Perfect Defendant
Brown may have been the prosecution's perfect defendant, Maxwell said, because of his criminal record.

In February 1986, Brown was convicted of burglary, and in December that same year, he was convicted of simple battery and carrying a deadly weapon in a public gathering, according to Maxwell. The second incident, she said, was the result of a tussle Brown had with a girlfriend.

Maxwell said this is a familiar pattern with those serving time for crimes they didn't commit, as Brown claims.
"The fact is most of these guys [involved with the] Innocence Project weren't absolutely perfect people and that's why they got targeted. That's what happened to Joe [Brown]. He wasn't an angel and he made a really good defendant," Maxwell said. "That may have factored into why they didn't test his blood."

Brown, who is 6-feet-tall and weighs 200 pounds, according to the Department of Corrections Web site, played baseball and football in high school and had worked at a restaurant before his arrest. He didn't finish high school, but has earned his GED in prison and taken several college classes.