by Anny Narat
Frank Brown served as jury foreman in the 2003 murder trial of Hal Hebert. Mr. Brown was a slightly built man in early middle age who was employed as an airline cabin flight attendant.
Some years after the trial, information was finally revealed that a prosecution witness had secretly been a long-time serial murderer, and his key testimony against Mr. Hebert was perjury that had been developed and coached by the lead detective and a prosecutor. Indications of other false testimony and misrepresented evidence at Hebert’s trial also emerged.
Frank Brown reacted to this news of pervasive police and prosecutorial misconduct in the case with vigorous public defensive statements: “Hal Hebert was convicted by the jury based on the evidence presented at trial. I should know. I was the foreman on that jury. I still have the 78 pages of notes I took during the two weeks I spent listening to the case against this man. He was guilty then, he is guilty now. GUILTY as charged! Guilty!” *
Clearly, Mr. Brown was a decisive type; he was eager to share the factors that supported his and the jury’s verdict: “The overwhelming physical evidence, the testimony of witnesses, and the statements of Mr. Hebert were among many items they relied on…AFTER the prosecution and defense rested we went to the jury room to arrive at our decision. GUILTY as charged.”
Mr. Brown obviously found significance in the “statements of Mr. Hebert.” But Hebert made no statements at trial. There were, however, two prosecution witnesses who related hearsay information to benefit the prosecution. One, a bail bondsman, told the jury that he had heard from Mr. Hebert, during a short car ride, that Hebert “loved his wife and did not mean to intentionally kill her.” Only after the trial were Hebert‘s representatives able to locate the second bail bondsman who had also been in the car. The second bondsman stated that he had sat directly next to Mr. Hebert while the first bondsman (the trial witness) drove the car; Mr. Hebert, said the second bondsman, “never said a word.”
The second witness to provide inculpatory hearsay testimony was Carrie Blake. Mr. Hebert had exchanged letters with Ms. Blake over the summer of 2002. She saved the letters, all of which were completely free of any incriminative information, but instead focused on news of mutual friends and ordinary life. Prosecutors waved the letters (which Ms. Blake had saved) in front of the jurors to show their existence. Then Ms. Blake testified that Mr. Hebert had written that the death of Mrs. Hebert had been a “terrible accident.” But unfortunately, she said, she had destroyed one letter and by coincidence it was that particular letter which had contained the alleged inculpatory passage. In cross—examination, Ms. Blake admitted to Hebert‘s defense lawyer that she had lied in the case; but, in her own words,”Not a lot.”
Mr. Brown mentioned other testimony and evidence that had impressed him, including testimony from the across-the-street neighbor, Mr. Charles Anderson.
* Brown’s quotes are accurate even to the emphasis (and the style of emphasis).
Mr. Brown believes he heard Mr. Anderson state that he “saw Hal back Carol’s car into the garage…thought it was unusual, and continues to believe to this day how it was unusual, since in the past years he’d NEVER seen Hal drive Carol’s car, much less back it into the garage….”
Mr. Brown’s memory of this testimony is inaccurate. At trial (on June 18, 2003, transcript page 88) Prosecutor Villafuerte asked Mr. Anderson, “do you recall who drove the white car?”
Mr. Anderson answered succinctly, “Both Carol and Hal,” and then noted that during the prior week Mr. Hebert had been having trouble with his car and had needed to ask for a “jump-start.” He further stated he had not thought it was unusual that Hebert had backed the car into the garage because he thought Mr. Hebert was “positioning the car so that it would be ready for a jump-start in the morning.”
Frank Brown recalled that he had been impressed when the “prosecution showed ‘scientific’ evidence in court that Carol had grease stains on her pant(s) coming from a grease spot on the floor of the garage.” But Mr. Brown’s recollection of the testimony was incorrect. The police forensic chemist, Robert Edward Burroughs, said on June 23, 2003 (trial transcript p.117) that the soil collected from the seat of the pants could not be determined as having come from sources at the residence. It was “…inconclusive as to the source of the soil smear from the seat of the pants.”
Under cross-examination, Mr. Burroughs reiterated, “Yes, the soil samples…from the seat of the jeans…compared to the soil from the garage and the sidewalk were inconclusive.”
Mr. Hebert’s attorney emphasized: “and inconclusive means nothing was proven…?”
Mr. Burroughs agreed: “That’s correct.”
Frank Brown further stated that the prosecutors “also provided scientific evidence of scrapes on the chair (the same chair with Carol’s blood) from the back of the house when it was rolled toward the garage.”
No such evidence, however, was ever presented about “scrapes” found on a chair, and certainly no evidence was entered about rolling the chair between the house and the garage, an idea which would have directly conflicted with the prosecution’s repeated theory that the victim’s body had been “dragged” from the house.
Mr. Brown mentioned that he “really liked” the testimony about a mystery novel that contained a passage about a murder victim being placed in the trunk of his own car. Mr. Brown had no trouble remembering the gist of the fictional plot device, but apparently was not as attentive when listening to the origin of the book: Mr. Hebert had a very good friend, Mike Davis, who was dying of cancer. Mr. Hebert (and other friends in a loosely-knit “book club”) frequently brought books to Mike. At trial, Mike Davis’ widow testified to finding the book among Mike’s possessions and noted the similarity of the small excerpt from the story to the actual circumstances of the discovery of Carol Hebert’s body. She stated that Mr. Hebert had brought many books to Mr. Davis. At this point the defense lawyers asked the judge to bar further reference to the book because there was no foundation offered by the prosecution that showed Mr. Hebert had ever read it or had any knowledge of its contents. But the trial judge (R. Michael Mullins) ruled that Mrs. Davis had said that particular book was from Mr. Hebert (although a careful reading of her testimony will reveal that the judge’s recollection was incorrect) and therefore its contents were “admissible” evidence, while the fact that nothing was presented to show that Mr. Hebert had ever read the book or talked about the book, or handled it, or even knew of its existence merely went to the “weight” that should be placed on it. He then allowed the prosecutors to direct Mrs. Davis to read the passage aloud to the jurors in her quavering emotional voice. The jury was moved by the inflammatory fiction: some wept. Mr. Brown clearly placed a great deal of weight on the story. And no weight at all on the fact that no direct link existed between the story and Hal Hebert.
Mr. Brown also recalled ”that other piece of evidence showing Hal (ONLY Hal) used the crawl space in the basement as a practice gun range.”
There was a gun range in the basement of the Hebert home. Two family members (nephew Michael Peterson and brother Joel Haataja) testified about being present on different occasions when the range was used. The existence of the range was no secret and no evidence was presented to show it was used by “ONLY Hal.”
Mr. Brown noted that lead detective Martin Vigil testified that he had found a plastic mouthwash bottle in the basement range which had a bullet hole through the bottom. The bottle was similar to a bottle that had been found in the car trunk with Carol Hebert’s body. This information was presented to imply that the bottle in the trunk had served as a “silencer;” and the bottle from the basement had been used for “practice.”
There were problems with the prosecution’s conjecture on the bottles. For example, there was no physical link between either bottle (such as fingerprints or touch DNA deposits) to Mr. Hebert. The absence of such a link meant that, for the prosecution’s theory to be accurate, Mr. Hebert would have had to take a bottle into his basement, fire a bullet through its bottom, then clean it meticulously. But next, Mr. Hebert would have had to suddenly change from painstaking planner to clumsy bungler when he carelessly discarded the bottle in plain sight directly at the front of the range where it was sure to be found —— instead of simply throwing it away.
A bigger problem with the “practice bottle” evidence, however, is that on the night of April 12th ten police officers searched the entire house for hours, into the morning of the 13th. No officer saw the bottle. But some days later, Detective Vigil returned alone to the house and claimed to find the bottle, which he removed in a conspicuous breach of rigid police chain-of-custody procedure, without ratification from an obligatory second person.
Detective Vigil has since proven, in other cases as well, his willingness to fabricate evidence and falsely testify.
Mr. Frank Brown was clearly pleased by his opportunity to serve as foreman and by his performance: “It only took us (the Jurors) three hours to decide this case. I do apologize to the family for taking that long.”
When another citizen pointed out to Mr. Brown that he had apparently misheard, or misunderstood, or simply invented all of the points of evidence on which he said he had relied, Mr. Brown abruptly ended the discussion.
Whether Mr. Brown simply erred in his comprehension of the trial proceedings or was in fact consciously working in his capacity as foreman to assist the prosecution in guiding the jury’s verdict is a question that should be examined.