LOUISVILLE, Ky. (WDRB) – During closing arguments of Michael Brizendine’s 1998 double murder and robbery trial, a Louisville prosecutor showed jurors a photo of a victim’s turned-out pocket and noted the man’s wallet was missing and had not been recovered.
The implication: The man had been robbed.
But the wallet had been removed by police and later given to the victim’s family – a fact the prosecutor, detective and even Brizendine’s own attorney knew or should have known but did not correct during the trial, according to court records.
With the occasional help of attorneys, Brizendine spent roughly two decades writing unsuccessful wrongful conviction motions from prison, where he has been serving a life sentence. But in February, the conviction was vacated by a federal judge amid allegations of ineffective counsel and misconduct by police and prosecutors.
In fact, in sending the case back to Jefferson Circuit Court, U.S. District Court Judge David Hale ordered prosecutors to notify him within 60 days whether they intend to take Brizendine to trial again.
“I’ve never seen an order like this,” said Jefferson Circuit Judge Ann Bailey Smith, when the case came before her on Feb. 24.
On Thursday, the Jefferson Commonwealth’s Attorney’s office provided its answer, allowing Brizendine to plead guilty to lesser charges — manslaughter 2nd degree and robbery — and be released from prison immediately with time served.
Brizendine, 42, smiled broadly at his supporters in court before being taken back into custody to begin the process of getting released. He was released on Friday. His attorneys, Ted Shouse and Eric Sandberg-Zakian, declined to comment until Brizendine is officially sentenced next month.
Brizendine entered an Alford plea, meaning he maintained his innocence, but acknowledged there is enough evidence for a jury to find him guilty.
Assistant Commonwealth’s Attorney Scott Drabenstadt in February had indicated prosecutors would retry Brizendine regardless of the past mistakes.
“Whatever happened in terms of prior trial counsel being ineffective, whatever happened in terms of perhaps LMPD officers either being grossly negligent or even being dishonest in terms of an item of evidence with the wallet, this case can still resolve in a conviction for Mr. Brizendine, no doubt about that,” Drabenstadt told Smith.
In the guilty plea documents, prosecutors wrote that the charges were being amended because Brizendine has been in custody since 1996 and the victims of the murdered men had forgiven him and “preferred to move on with their lives.”
A family member of one of the victims declined to talk with a reporter outside the courtroom.
Drabenstadt told Smith that the victims’ children hoped Brizendine would “go on with his life” and “live a law abiding life from here on out.
“None of this means anything if he goes back to what they believe was his life 20 some years ago,” the prosecutor said.
On July 3, 1996, Brizendine and co-defendant George Hobbs were involved in a drug deal with Jeffrey Wilson and Johnny Nash, according to court records.
A middleman, Ray Joseph, testified that the transaction at Wilson’s home went bad and Hobbs and Brizendine pulled out their weapons. As Joseph fled, he told police he heard several gun shots.
When Brizendine and Hobbs returned to the vehicle, Joseph testified that Brizendine told him “(your) friends just got shot and robbed.”
The prosecutor argued the photo of Nash’s pocket was relevant because it appeared “to have been partially turned inside out,” leading jurors to assume the wallet was stolen after he was shot.
Lead detective Tim Clark, who is no longer with the Louisville police department, testified that officers had “disturbed” the crime scene, specifically by moving a shell casing. He also said that he was concerned about the photo of Nash’s turned out pocket, according to court records.
Attorney Doug Kemper, a prosecutor at the time, “knew that the wallet had been recovered” but used Clark’s testimony to “support the theory that (Brizendine) had stolen the wallet,” current defense attorneys argued in court records.
Brizendine’s current attorneys accused Kemper of prosecutorial misconduct in a September motion to a federal court judge, arguing he had evidence police had taken the wallet.
“The prosecutor’s argument and representation was in direct conflict with evidence in the state’s possession,” defense attorneys wrote in a September motion.
And Brizendine’s former defense attorney, Alex Fleming, did not question whether Clark was concerned about whether the wallet had been taken by police or dispute the prosecution’s claims.
On Feb. 9, 1998, a Jefferson Circuit Court jury convicted Brizendine and Hobbs of two counts of wanton murder, robbery and burglary.
To get to the wanton murder charge, jurors had to believe Brizendine committed a robbery. Prosecutors relied heavily on the crime-scene photo of Nash’s out-turned pockets to prove robbery, according to court records.
Representing himself, Brizendine has been filing appeals for more than a decade, continually being denied by the courts.
After years of getting nowhere, a panel of 6th Circuit Court judges finally accepted his appeal and appointed a Washington law firm to represent him.
After that, the Kentucky Attorney General’s office conceded Brizendine has received ineffective counsel and the case was sent back to circuit court.
In March of last year, Brizendine’s current attorneys contacted Louisville Metro Police and found evidence the wallet had never been stolen and instead returned by police to Nash’s mother.
A police department inventory of evidence found at the crime scene listed a wallet, but Brizendine’s attorney did not investigate whether it belonged to Nash, according to court records.
“The prosecutor’s theory and misrepresentations, however, both went unchallenged by defense counsel during witness examination and closing argument,” the defense said in a September motion.
A report about police having the wallet was turned over to Brizendine’s defense attorney, yet he did “nothing to challenge the misrepresentations and untruths” or attempt to have the wallet entered as an exhibit in the trial, Brizendine argued in a motion he filed in 2011.
In the February hearing, Sandberg-Zakian, an attorney out of Washington, told Judge Smith he didn’t see how prosecutors would be able to convict Brizendine “once we expose the serious problems with police behavior in this case.”
In addition, Brizendine’s trial attorney failed “to discover real serious problems with the behavior of the police and prosecutors in this case.”
Fleming, Brizendine’s trial attorney, did not return a phone message seeking comment.
Kemper, the prosecutor who gave the closing arguments, also did not return a message.
Clark, the Louisville police detective, is no longer with the department and could not be reached.
At the February hearing, Drabenstadt argued prosecutors still had a statement from Hobbs that Brizendine was “in on it” and “we are ready to go to trial.”
He said the higher court rulings do not indicate that Brizendine was innocent, just that there were “missteps” by the defense attorney, “actions by detective, perhaps prosecutor, whether intentional or grossly negligent, who knows?”
Current defense attorneys disagreed, saying the higher court had ruled that had the wallet error been pointed out, it very well could have caused jurors to come up with a different verdict.
“They got 20 years from our client for free,” Sandberg-Zakian told Smith.