Thursday, 25 January 2007

You just can't give up'

You just can't give up'

AUBURN - Roy Brown said he left prison to fellow inmates chanting “innocent man walking.”

Brown - now a free man - hopes his exit from the maximum-security Elmira Correctional Facility Tuesday is the last time he's ever behind bars.

Plump snowflakes worthy of a snow globe fell on Genesee Street as Brown made his way to his first act as a free man: a press conference.

“I don't think there's any worst part of prison,” Brown said. “Prison's hell.”

Brown, 46, is no longer convicted of the May, 23, 1991 murder of Cayuga County social worker Sabina Kulakowski, who was found with bite, strangulation and stab wounds marring her body. The farmhouse she lived in was burning when her body was found.

Cayuga County Surrogate Judge Mark Fandrich agreed Tuesday with Brown's legal team and Cayuga County District Attorney James Vargason that enough new DNA evidence - identified with DNA testing not available in 1992 - has been obtained to vacate Brown's conviction and set him free from a 25-year-to-life sentence.

But Brown still stands indicted of her murder and will return to court in March for Fandrich's decision over whether the indictment should be dismissed.

“I'm sorry it's taken such a long time to come to this day,” Fandrich said. “I'm happy for you and your family.”

Brown's supporters sat in the rows behind the defense table as they had so many times before. This time, instead of leaving with pained faces, they applauded and cheered when Fandrich made his decision. Two of Brown's attorneys, Nina Morrison and Peter Neufeld of the nonprofit legal clinic Innocence Project, smiled irrepressibly.

Brown was freed because the DNA profile of Barry Bench, the brother of Kulakowski's estranged boyfriend, Ronald, was found on a red shirt reading “Bonjour y'all New Orleans.” The shirt was found 150 feet from Kulakowski's body and that she was believed to have worn the night of her killing.

Previous testing showed that there was a one in 18,000 chance that the DNA profile was not from Bench, according to Vargason. The most recent test comparing the DNA profile on the shirt to a sample from Bench's exhumed corpse resulted in one to 200 billion chance that the DNA is not from Bench, Vargason said.

Vargason also received a report Dr. Lowell Levine from the New York State Police Forensic Investigation Center in Albany late Monday afternoon saying that four of the bitemarks on Kulakowski's body appeared to have been made by the same person and could have been from Bench. That strengthened Vargason's resolve to join the motion to vacate Brown's conviction. Levine compared Bench's dental records, photographs of Bench and three jaw fragments with 10 teeth obtained when Bench's body was exhumed from a cemetery in Victory.

“It strengthens the accusatory finger at Barry Bench,” Vargason said. “It weakens the accusatory finger at Roy Brown.”

The biting evidence is crucial. It's a key component in the legal theory that Kulakowski's murderer was the person who bit her. The trial testimony saying Brown's bitemarks matched Kulakowski's wounds was cited as recently as last month by former Cayuga County Judge Peter Corning, who heard similar arguments that Brown's conviction should be vacated.

Brown's DNA was excluded from the shirt. No logical connection was found by the Cayuga County Sheriff's Office for an innocent connection between Barry Bench and Kulakowski's shirt; Kulakowski's sister traveled often to New Orleans and bought souvenirs for her family, while there is no evidence Bench ever traveled there. Ronald Bench's DNA also was tested and excluded.

Barry Bench is who Brown has accused of slaying Kulakowski, including sending him a letter in December 2003 saying that God knew the truth and that DNA evidence would set him free. Brown became convinced Bench was Kulakowski's real killer when he filed a Freedom of Information request in 2002 for all the copies of the documents in his case and found four affidavits previously unknown to him relating to Barry Bench.

Bench committed suicide shortly after the time frame in which Brown sent the letter. He laid down in front of an Amtrak passenger train.

Brown has maintained his innocence since he first became a suspect. He has appealed his case several times. His most recent appeals have involved the testing of items from the murder scene with more sophisticated techniques not available in the 1990s.

“This ain't a miscarriage of justice. It's an abortion,” Brown said 15 years to the day he was convicted of Kulakowski's murder. “That's what this is. It's an abortion of justice.

“I'm innocent. That's what kept me going. You just can't give up.”

Brown is still not eliminated as a suspect in Kulakowski's murder. Investigators say they have found no motivation for Bench to have killed Kulakowski.

“People can speculate Barry did this,” said Cayuga County Sheriff David Gould. “We as police officers have to gather that proof.”

Gould said his office has developed 60 leads since Brown's hearing in December where a correlation was presented between Bench and a John Doe profile on the shirt was established by private DNA testing organized by Brown's attorneys, of Bench's daughter Katherine Eckstadt.

Gould stood at the doorway of the county courtroom during Tuesday's hearing.

A 2004 revision to a state law formalized a legal procedure for convicts to have DNA testing completed that might exonerate them. Under this process, convicts must prove -- under a lower standard of evidence than guilty beyond a reasonable doubt -- that it is more probable than not that the new evidence would have led to a more favorable verdict.

Brown, dressed in civilian clothes, had to hold his arms over and behind his head for his corrections officer escorts to remove his handcuffs for the hearing. Later, the corrections officers joked as they left empty-handed that for some reason Brown didn't want the chains and the handcuffs anymore.

Brown was released on his own recognizance. But he cannot drive, enter the Cayuga County Office Building and have contact with county health and human services workers. Brown became a suspect in Kulakowski's murder, in part, because he had made threats to other social workers over the placement of his children.

Evidence introduced at Brown's trial included that the impression of Brown's bite marks allegedly matched the bite wounds on Kulakowski's body, that Brown had threatened the lives of county workers more than once over his children's custody, that he had violently bitten women he was involved with and that he was released from Cayuga County Jail May 17, 1991, days before Kulakowski was killed.

An affidavit obtained by Brown's lawyers from Tamara Heisner Eckstadt, Bench's common-law wife of 13 years, stated that Bench was alcoholic, abusive and bit her during one sexual assault. Bench's lawyers also say that Bench arrived home on the night of Kulakowski's murder intoxicated and had an unexplained gap in his whereabouts around the same time she was likely killed.

Brown is incredibly weak because of his Hepatitis C affliction and advanced cirrhosis of his liver. He can't stand for more than two minutes at a time. After his release, he had to be driven just a block between the Cayuga County Courthouse and the Sugarman law firm where the press conference was held.

When asked what he was looking forward to the most about being a free man, Brown said: “That's it. Free.”

Brown and his family planned to get something to eat after the press conference. Lasagna was Brown's planned dish.

“Changes have got to be made in the justice system,” Brown said. “The wheels are flat. They say they turn slow. They're flat. It's just one-sided. The court system is designed to send people to jail. There is no course to help innocent people get out of jail. There's more innocent people where I came from.”

Brown said he wanted to extend his wish for justice to Kulakowski. “I think that lady deserves justice more than anybody,” he said, closing out his public comments for the day.

Staff writer Amaris Elliott-Engel can be reached at 253-5311 ext. 282 or at

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