DNA test may lead to new murder trial

Kim Smith

Saturday, Jan. 20, 2001 | 11:01 a.m.

Even before her son called her from jail that heart-stopping day in 1985, Betty Browning had her mind made up: Her son was not guilty of murder.

A jury verdict a year later didn't change her mind. A Nevada Supreme Court decision in 1988 didn't sway her. All of the developments since -- including a DNA test that may result in a new trial -- have done nothing but strengthen her resolve that her son is on death row for a crime he didn't commit.

Paul Browning, 44, did not stab Las Vegas jeweler Hugo Elsen to death and rob him in November 1985, his mother insists.

Betty Browning, 67, learned of the murder when her son's girlfriend called her in Maryland to let her know he had been arrested. Although she felt as though "the wind had been knocked out of her," she knew her son was innocent, she said.

"He's told me from the very beginning that he didn't do it," Betty Browning said. "He's always said 'Mom, I may have done things I've never been punished for, but I did not do this.' "

Three months ago she got the news that she has been hoping and praying for -- news she believes will get her son a new trial at the very least and exoneration and freedom at the most.

A DNA test performed last summer proves the blood on a jacket supposedly worn by Browning as he stabbed Elsen, 60, to death is not Elsen's.

Nor is it Browning's.

Considering that prosecutors told jurors the blood alone should convict Browning, defense attorney Daniel Lamb said the test results are "significant."

Also significant are the 50-plus other reasons he believes Browning deserves a new trial, Lamb said.

Whether the combined factors add up to a new trial will be decided this summer by Senior District Judge Joe Pavlikowski, who presided over the original trial. He will make his decision after reading briefs from both sides. Prosecutors say they will argue that the DNA finding is insignificant. The judge also will hold another hearing.

Browning received a death sentence in December 1986 after a jury convicted him of first-degree murder and robbery.

Prosecutors argued that Browning went into Elsen's Las Vegas Boulevard South store on Nov. 8, 1985, because he needed money to bail his girlfriend -- a prostitute -- out of jail.

Browning, then 30, was arrested after two acquaintances, Randy and Vanessa Wolfe, called police and said that Browning had confessed to them.

The Wolfes, both ex-convicts and drug abusers, led police to the murder weapon, jewelry and a bloody jacket and later testified against Browning.

Browning, whose fingerprints were found inside the store, was also identified by Elsen's wife, Josy. The evidence against Browning was so overwhelming, then-prosecutor Dan Seaton told jurors, that the presumption of innocence was a "farce."

Jurors convicted Browning after deliberating an hour. It took them two hours to sentence him to die.

Eight-year battle

Lamb, a San Diego attorney, has been working on Browning's case for the past eight years. The American Bar Association and Death Penalty Project approached the law firm of Brobeck, Phlegert & Harrison for help, and Lamb took on the case and waived his fees.

Lamb and fellow attorney Brian Martin say the DNA test and a newly discovered witness should be enough to get Browning a new trial. In addition, they claim Browning's original attorney made dozens of errors.

That attorney, Randall Pike, argued during Browning's trial that Browning was set up by the Wolfes. According to court documents, however, Pike's investigator only spent 36 hours on the case.

Had Pike or his investigator spent more time on the case, Lamb and Martin say Browning would have had a better chance at acquittal.

According to court documents, Browning admits being in Elsen's store a few days before the murder with his girlfriend, Marcia Gaylord. While inside, he reached over a counter and shoplifted a chain, leaving his fingerprints behind, he said.

According to Browning, Randy Wolfe learned of the incident and told Browning that he (Wolfe) and his partner, a black Cuban-American, were going to rob the store.

On the day of the murder, Browning, who is also black, says he was on his way to meet Gaylord when he saw Randy Wolfe parked on Las Vegas Boulevard South. Just as Browning was about to ask for a ride, the Cuban-American pushed him out of the way and got into the car.

The Cuban-American was wearing a jacket that Gaylord had loaned to Randy Wolfe, Browning says.

Browning claims that Wolfe told him to meet them at their motel and that when he did, he saw a large quantity of jewelry on the bed. Moments later the police arrived and Browning was arrested.

Although Browning testified about these things at trial, he didn't have any witnesses to substantiate his claims. Gaylord could have explained why his fingerprints were in the store, but she disappeared after a postponement in the trial.

Gaylord also could have testified that she hadn't been in jail the day of the murders, so Browning didn't need money to bail her out.

More importantly, Gaylord could have testified that she had loaned the blood-stained coat to Randy Wolfe before the murder.

According to Browning's attorneys, that coat may have convicted him.

Because of Pike's errors, they said Seaton was able to admit into evidence a photo of Browning wearing the coat.

"When you get into the jury room, look real closely at this photograph with Paul Browning -- No. 5 -- and tell me, tell Mr. Browning that the (jacket) in this picture is not this jacket right here -- the jacket that had Hugo Elsen's blood on it that Paul Browning was wearing when he killed him," Seaton said. "This proves his guilt as much as anything ...

"If that's, in fact, his jacket, if this is the same jacket that's in the folder, and it is state's exhibit 41, you don't need five minutes in the deliberation room. Come back in here and tell me he's guilty. It's as simple as that," Seaton said.

Because Seaton was allowed to tie Browning to the coat and assert that Elsen's blood was on the coat -- which tests now show isn't true -- jurors were unfairly prejudiced, Lamb and Martin argue.

They believe that Pike did not adequately prepare for trial because he was convinced he could get either the Nevada Supreme Court or the U.S. District Court to dismiss the case. His belief was based on a prosecution delay in the trial during which Gaylord disappeared, and he lost one of his most important witnesses.

The delay was caused by Seaton's apparent belief that the trial date was something other than the one originally set and therefore, he was not ready to go to trial. Pavlikowski granted a delay and later denied Pike's motion to dismiss the case because of Seaton's actions.

Although Browning's new defense attorneys credit Pike for taking the issue as far as he could, they still believe he should have been prepared in case he lost.

"It can't be said enough: Mr. Pike's failures ensured that evidence against Mr. Browning went unimpeached, unexplained and unchallenged," the defense attorneys' writ of habeas corpus said.

Less than adequate

Several defense experts also submitted affidavits that Pike did not present an adequate defense.

One lawyer wrote that "trial counsel was so unfamiliar with his client's background he misstated Mr. Browning's age as 27 when, in fact, he was 30 in 1986."

The same attorney, 25-year California lawyer John Cotsirilos, also says Pike didn't try to find factors that could have kept Browning off death row.

A jury might have thought Browning worthy of consideration since he was once a doorman for the U.S. House of Representatives, a star high school athlete and a member of student government.

Betty Browning was the only person who testified on her son's behalf during the trial's penalty phase.

"My experience is that the absence of witnesses to testify for an accused in a penalty phase communicates to a jury that no one cares whether that individual lives or dies," Cotsirilos said.

Deputy District Attorney Leon Simon, who is handling the appeal, said he doesn't believe the DNA evidence is important.

Browning was convicted on the basis of other, overwhelming evidence, Simon said, including an admission of his guilt to the Wolfes -- an admission Browning denies ever making. Browning was also seen leaving the area and his fingerprints were found at the murder scene, Simon said.

The fact that the blood wasn't his or Elsen's "doesn't prove he didn't do it," Simon said.

Browning had been convicted for robberies that involved knives, Simon said. Perhaps the blood came from them. Or it could have come from any number of intravenous drug users that Browning associated with.

In a letter to his mother, Browning suggested that the blood is the real killer's, who may have cut himself after breaking a display case and got blood on the coat. Browning says the black Cuban-American is the real killer.

"There is no case against me anymore. Nothing. It's just all about waiting for a court to reverse now ..." Browning wrote.

The importance of Gaylord's testimony is speculative at best, Simon said. Even if she and Browning were in the store days prior to the murder, that could just mean they were gaining Elsen's confidence so he would buzz Browning in through the locked doors on the day of the murder.

"The fact that he was in there before is not inconsistent with the state's theory of the case," Simon said.

Simon, a defense attorney for 18 years, said Pike was in an awkward position.

"Having been there and done that, I pretty much know what's going on and in some cases it's difficult -- not impossible -- to defend some defendants," Simon said. "In this case, the evidence was so overwhelming, if Johnnie Cochran had been the defense attorney, Mr. Browning would've still been convicted."

Pike said he did the best he could considering his client wasn't forthcoming with helpful information. He attempted to verify or track down what information he was given, he said, including information about the mysterious Cuban-American.

Pike also said he tried to attack Josy Elsen's identification of Browning, and he pointed out differences between Browning's hair, an afro, and that of the attacker's -- as described by Hugo Elsen as oily, wet and shiny, shoulder-length black hair.

"I mounted the defense that he allowed me to mount," Pike said.

Easy to 'pick apart'

Pike noted it's easy to "pick apart" a case 15 years later, particularly if you're from another state.

"They can make these baseless allegations against practitioners here because they don't ever have to deal with us again," Pike said. "(As for) Browning, he's fighting for his life, and he doesn't care who he hurts because he's got such a vested interest in the case."

Pike said he is confident Pavlikowski "knows I worked as hard as I could to get (Browning) a fair trial."

Betty Browning said she knew from the beginning that Pike was ill-prepared. "He was just not up for the job," she said. "Seaton just ran over him."

She said she receives at least one phone call and letter from her son every week.

Because Browning's 75-year-old father, Robert, has cancer, Betty Browning said she hopes her son is re-tried and acquitted as soon as possible.

It has been incredibly difficult to get to this point, she said.

"The good Lord has kept me for some reason," she said. "It has to be strength from up above that has gotten me through this because this should have driven me bonkers long ago."

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