By David M. Greenwald
Executive Editor
New York – Last week, Andre Brown, who has been wrongly convicted and incarcerated for 23 years was released on his own recognizance. The judge stopped short of declaring him factually innocent, but he was granted a new trial and there is a pending appeal of his case.
While much remains up in the air, Andre Brown is now fighting on the outside rather than trying to get out and that makes a huge difference.
Brown and his legal team, Oscar Michelen and Jeffrey Deskovic joined the Vanguard last week, just a few days after his release. Brown was just grateful and thankful for the 
opportunity to be free.
“I feel elated. It is so wonderful to be in the presence of prominence with these two men by my side with God here with us,” Brown said. “This week has been all hugs, kisses. I kissed my grandmother’s skin off of her. She’s 97 years old.
“My wife can’t stop hugging me. I cooked breakfast for my son for the first time in the morning before he went to school. I went to one of his practices. Oh man. And I’ve been waiting for this day, since the time he was a little guy and he first started his upscale towards greatness.”
For 23 years however, Andre Brown was living a nightmare.
The Vanguard last year published an expose on the case.
VANGUARD INVESTIGATION: More than 20 Years after Conviction, Man’s Legal Nightmare about to End
“It was more than a nightmare. It was insanity, it was chaotic, it was violent. It was pure, brutal thoughts in my mind, will I make it out at every given moment, anything could happen. So much despair and sorrow on the inside that you would think that it would never end or God is good and just know that his greatness is what brought me through,” he described.
After reviewing a 93-page decision of evidence provided by Brown’s legal team, Judge David Lewis of the Bronx Supreme Court determined Brown’s previous trial lawyer “was ineffective for failing to produce medical evidence at the 1999 trial that Andre (Brown) had suffered a serious gunshot wound to his right leg.”
Because the suspect in the crime “ran towards the victims and chased one of them for more than the length of a city block,” it is clear Brown was physically unable to commit the violent act, said supporters.
Despite this medical evidence, however, the judge “ruled that it was not enough to establish his actual innocence as a matter of law” because eyewitnesses picked Brown out of a lineup.
This marked a source of frustration for the legal team who believe that the evidence of innocence is overwhelming.
Attorney Oscar Michelen explained, “We not only identified the potential, the real killer, the real shooter, we also identified why this shooting occurred.”
How did they get the wrong guy here?
Michelen explained, “part of it is kind of similar to what happened in so many wrongful conviction cases. A rumor on the street, don’t forget that the shooter was the same height, weight, and build of Andre. He was fully masked. And so that’s one reason.”
But also, “they just, by sheer bad luck resembled each other.”
The resemblance was uncanny.
“We found the shooter’s, real yearbook picture. It could be Andre’s brother. That’s how much these guys look like each other. And so once the police get that, that idea of who might have been done, you know, there’s nothing you can do to shake that, that confidence, so to speak. And so they didn’t really bother to investigate anything,” he explained.
The witness from the neighborhood told the police she believed it was Brown.
“That was really all it took,” Michelen said.
But Jeffrey Deskovic added, “I want to add that she got significant facts wrong. she said she was on one street when people ran past her. That was the wrong street. And then she claimed that her car was stopped at her red light when actually there is no traffic light there.”
He noted, “Also, she just didn’t have a good opportunity to view the shooter.” He said, that once that happens, you have what’s known as “unconscious transfer. You think you recognize a face because the brain wants to recognize a face.”
They are not saying that she intentionally lied about Brown, “We’ve always said that she was, didn’t get a good opportunity and was mistaken. But she also did not have all the facts.”
Oscar Michelen took the case about six years ago. Meanwhile Jeffrey Deskovic was wrongly convicted himself out of NY. He was exonerated in 2006, ended up going to college and ultimately law school.
He took money that he won in a legal suit to start the Jeffrey Deskovic Foundation and about a year and a half ago, he became a lawyer.
Michelen explained, “I’ve known Jeff, you know, since his exoneration and through law school, um, you know, have always kept in touch and talked about cases. And I’ve always been an admirer of, of what he’s accomplished. And it just came natural that when he became an attorney, I said, well, hey, how would you like your first appearance as an attorney to be on a wrongful conviction case with me?”
Even when cases like this arise, it is not easy to exonerate someone. These mistakes happen all too often and it’s very rare for someone to walk out the door, free.
“The law is against you,” Michelen explained. “The criminal justice system values finality more than just about any other tenant. It’s not about justice.”
“You got to keep workings and finding everything that you can can and crafting the right legal arguments in that narrow window that, that the criminal procedure law gives you,” Michelen said. “Folks get this perception that all you got to do is kind of say, ‘Hey, I got this new evidence.’ But there are so many other hurdles procedurally and otherwise that you have to get over to even get a hearing. Just getting a hearing is already a godsend, that is so hard to get an evidentiary hearing.”
So many times, the just will just say, “I don’t think you showed me enough for a hearing.”
Michelen pointed out that Deskovic has exonerated 12 now, he has exonerated eight himself and “none of them have been on the first try.”
For Deskovic, while he has exonerated a number previously, “This is the first case that I’ve helped to overturn in my capacity as a lawyer.”
Unfortunately for them, this case is not over.
“We have to fight the appeal,” Michelan explained.
They made three arguments before the judge. Actual innocence, newly discovered evidence, and ineffective assistance of counsel.
“The prior attorney who represented Andre never presented the medical evidence, even though the attorney before him mentioned to the court,” Deskovic explained. But “the judge did not agree with us that we met the actual innocence standard, which is still, frankly a head scratcher. I mean, this medical, evidence to me is just as good as an exoneration. I mean, it wasn’t even that we had a medical expert, we had the actual surgeon who did the surgery on Andre. So the judge rejected our actual innocence claim.”
The judge “simply ruled that it was ineffective assistance of counsel for not presenting the medical evidence.”
“We were disappointed,” Deskovic said. “There are ramifications for not winning on the first two grounds. Nonetheless, a winner is a win. He’s home. But the fight is not over yet.”
They believe they will ultimately prevail and now he can fight from home rather than a jail cell.
“You’re in two boxes. One is the cage itself and one is your mind,” Brown explained. “I’ve lost so many battles, but now overall, the war that we’ve won a portion of, I’m able to continue to fight from the outside.”
He said, “Oscar has vowed that he will not stop until we receive justice, you know, for my wrongful conviction as far as exclaiming my actual innocence.”
Meanwhile Brown is only grateful at this point.
“I just want to give the glory to God himself. He has to receive the glory, you know, for bringing these remarkable men into my life, for allowing my wife to stand by my side, for giving me a son while I was in prison. You know, so much fortune, even in the despair that I received that I have to be rejoicing now,” he said.
