Brown v. State

This opinion is subject to revision before final
publication in the Pacific Reporter

2013 UT 42

IN THE

SUPREME COURT OF THE STATE OF UTAH
DEBRA BROWN,
Appellee and Cross-appellant,
v.
STATE OF UTAH,
Appellant and Cross-appellee.
____________
Nos. 20110481, 20110141
Filed: July 12, 2013
____________
Second District, Ogden Dep’t
The Honorable Michael D. DiReda
No. 100903670
____________
Attorneys:
John E. Swallow, Att’y Gen., Patrick B. Nolan, Scott W. Reed,
Christopher D. Ballard, Asst. Att’ys Gen., Salt Lake City,
for appellant and cross-appellee
Alan L. Sullivan, Christopher Martinez, Elizabeth Fasse,
Christine R. Poleshuk, Salt Lake City, for appellee and
cross-appellant
____________
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, and
JUSTICE PARRISH joined.
JUSTICE LEE filed a dissenting opinion.
____________
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 In 1995, a jury convicted Debra Brown for the murder of Lael
Brown. Fourteen years later, in 2009, Ms. Brown filed a petition for
a post-conviction determination of factual innocence pursuant to
Utah’s Post-Conviction Remedies Act (PCRA).1 The post-conviction

1
Ms. Brown also asserted claims for post-conviction relief under
Part 1 of the PCRA. The State moved for summary judgment on
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 BROWN v. STATE
Opinion of the Court

court granted Ms. Brown’s petition and held an evidentiary hearing.
The court interpreted Part 4 of the PCRA to allow its determination
of factual innocence to be based on a combination of newly
discovered evidence and previously available evidence. It then,
based on the evidence Ms. Brown presented at her factual innocence
hearing, determined that Ms. Brown established her factual
innocence by clear and convincing evidence. It therefore vacated her
1995 murder conviction, and the State appealed.
¶2 We affirm the post-conviction court. We hold that a post-
conviction determination of factual innocence can be based on both
newly discovered evidence and previously available evidence.
Further, because the State did not properly challenge the post-
conviction court’s factual findings, we affirm the post-conviction
court’s ultimate determination that Ms. Brown is factually innocent.
BACKGROUND
¶3 On Sunday, November 7, 1993, Ms. Brown told police that
she discovered her long-time employer Lael Brown (Lael) dead in
his bed.2 Lael had been shot in the head three times. Ms. Brown told
police that Lael had been feeling sick and that she had delivered
soup to him the day before. She claimed that Lael did not answer his
door at the time, so she left the soup on his doorstep. She further
claimed that she discovered the soup was still sitting on Lael’s
doorstep the next day. She stated that when Lael again did not
answer his door, she used a key Lael had given her to let herself into
his house where she discovered his body.
A. The 1995 Trial
¶4 On September 9, 1994, police arrested Ms. Brown and
charged her with Lael’s murder. At Ms. Brown’s 1995 trial, the State
presented a circumstantial case that largely depended on
Ms. Brown’s inability to offer an alibi during the time the State
argued Lael must have been murdered. First, the State presented
evidence showing no signs of forced entry into Lael’s home. The

1
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those claims, and the post-conviction court granted the State’s
motion. Ms. Brown filed a cross-appeal to us challenging the court’s
grant of summary judgment. Because we affirm the post-conviction
court’s determination of Ms. Brown’s factual innocence, we do not
reach Ms. Brown’s cross-appeal.
2
Lael Brown and Debra Brown are not related.

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State claimed Lael always locked his doors and that the front door
locked automatically. Further, the State offered evidence that
Ms. Brown had access to Lael’s house. She had been in his home on
previous occasions to clean and paint and had one of only two
known keys to Lael’s house. The second key belonged to Lael and
was found on his key ring.
¶5 The evidence at trial also showed that Lael was shot with a
.22 caliber handgun. An expert testified that the murder weapon
could have been Lael’s Colt Woodsman, which was missing from
Lael’s home after the murder. Testimony indicated that Lael was
seen alive Friday evening but was not seen following his usual
routine of drinking coffee at Angie’s Restaurant on Saturday
morning. Lael did not answer his phone on Saturday, and no one
saw him working around his house, even though his truck was
parked at home. Lael also did not return Saturday to finish repairs
for a tenant that he had started the evening before.
¶6 The medical examiner, Dr. Grey, testified at trial that, based
solely on the physical evidence, Lael was likely murdered between
9:00 p.m. on Saturday, November 6, and 3:00 a.m. on Sunday,
November 7. Dr. Grey also testified that “association factors,” like
Lael’s regular routine and the time he was last seen alive, could
expand the time-of-death estimate beyond what the physical
evidence suggested. Based on these factors, Dr. Grey agreed that
Lael could have been murdered between Friday evening, when Lael
was last seen alive, and Sunday morning.
¶7 Ms. Brown accounted for her whereabouts during the time
Lael could have been murdered, except for a period between
6:40 a.m. and 10:00 a.m. on Saturday, November 6. At about
6:40 a.m., Ms. Brown left her then-boyfriend’s house after spending
the night. And at around 10:00 a.m., Ms. Brown’s son saw her
making soup. The State put on evidence that Lael’s neighbor,
Paulette Nyman, heard two gunshots on Saturday at about 7:00 a.m.
¶8 Finally, the evidence at trial showed that the only property
missing from Lael’s home after his murder was his wallet, his .22
caliber Colt Woodsman, his October bank statement, and canceled
checks from October and previous months. Copies of the bank
statement and canceled checks later showed that several checks were
made payable to Ms. Brown, but these checks had apparently been
forged.
B. The Appeal
¶9 A jury convicted Ms. Brown of aggravated murder. In 1996,

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she appealed her conviction to us. She challenged, among other
things, the sufficiency of the evidence the jury relied on to convict
her.3 We recognized that there was no direct evidence tying
Ms. Brown to the murder and that the State’s case against her was
entirely circumstantial.4 We noted that a large part of the State’s
circumstantial case was Ms. Brown’s inability to offer an alibi during
the time the State argued Lael must have been murdered.5 But we
also recognized that a jury can base its verdict on sufficient
circumstantial evidence.6 Specifically, we concluded that the jury,
based on the evidence available, could have drawn the following
reasonable inferences: First, because there were no signs of forced
entry, the jury could have inferred that Lael’s murderer likely gained
access to his house by key and shot Lael while he was asleep in bed.7
Second, because the medical examiner testified to a time of death
between 9:00 p.m. on Friday and 3:00 a.m. on Sunday and a neighbor
testified to hearing gunshots at 7:00 a.m. on Saturday, the jury could
have inferred that Lael was murdered at 7:00 a.m. on Saturday.8
¶10 Third, because Lael’s gun, which was the same caliber as the
murder weapon, was missing, the jury could have inferred that the
murderer used Lael’s gun to shoot Lael.9 Fourth, because Ms. Brown
had been in Lael’s home to clean, the jury could have inferred that
she knew where Lael kept his gun and financial papers.10 Fifth,
because the only things missing from Lael’s house were his wallet,
gun, and October bank statement, the murderer likely had a
personal interest in that property and, due to her forgeries, the jury

3
State v. Brown (Brown I), 948 P.2d 337, 340 (Utah 1997).
4
Id. at 344.
5
See id. at 339–40 (noting that “[o]n the basis of a neighbor’s
statement about hearing gunshots, police thought the murder
occurred at approximately 7:00 a.m. on Saturday, November 6, 1993.
[Ms. Brown] could account for her whereabouts for the entire
weekend except the hours between 6:40 a.m. and 10 a.m. on
Saturday, November 6”).
6
Id. at 344.
7
Id. at 345.
8
Id. at 345–46.
9
Id. at 346.
10
Id.

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could have inferred that Ms. Brown had such an interest.11 Sixth,
Ms. Brown gave inconsistent statements concerning her reason for
leaving soup on Lael’s doorstep, and the jury could have wondered
why, given that she had a key, she did not put the soup inside.12
¶11 Seventh, the defense could not account for Ms. Brown’s
whereabouts around 7:00 a.m. when gunshots were heard, but the
defense could account for her whereabouts prior to 6:40 a.m. and
after 10:00 a.m. on Saturday.13 Finally, because the murderer likely
entered by key, and only Lael and Ms. Brown were known to have
keys to Lael’s house, the jury could have inferred that Ms. Brown
was the murderer.14 Based on these reasonable inferences, we
determined that the evidence was sufficient to support Ms. Brown’s
conviction for Lael’s murder.15
C. Post-Conviction Proceedings
¶12 In 2002, the Rocky Mountain Innocence Center (RMIC)
began investigating Ms. Brown’s conviction. In 2009, based on new
evidence that the RMIC believed challenged the State’s
circumstantial case, Ms. Brown petitioned the post-conviction court
for relief. She filed a petition for post-conviction relief under Part 1
of the PCRA and a petition for post-conviction determination of
factual innocence under Part 4 of the PCRA.
¶13 In her petition under Part 1 of the PCRA, Ms. Brown made
five claims for relief.16 The State moved for summary judgment on
each of those claims, arguing that summary judgment was proper
because Part 1 of the PCRA either foreclosed her requested relief or
her claims were untimely under Part 1’s statute of limitations.

11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
First, she claimed that newly discovered evidence establishes
her factual innocence. Second, she claimed that newly discovered
evidence establishes that no reasonable juror could have found her
guilty of Lael’s murder. Third, she claimed her conviction violated
due process due to an inadequate police investigation. Fourth, she
claimed her conviction violated due process because police withheld
exculpatory evidence. Finally, she claimed her trial and appellate
counsel provided ineffective assistance.

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Ms. Brown disputed that her claims were time-barred and argued
alternatively that the PCRA’s statute of limitations is
unconstitutional because it does not have an “interests of justice”
exception. The post-conviction court ultimately granted the State’s
motion for summary judgment and found the PCRA’s statute of
limitations to be constitutional.
¶14 Next, in response to Ms. Brown’s petition for a post-
conviction determination of factual innocence under Part 4 of the
PCRA, the State filed a motion to dismiss on May 11, 2009. The post-
conviction court denied the State’s motion, however, because it
found that “a bona fide issue does exist as to whether [Ms. Brown]
is factually innocent.” After discovery, the post-conviction court held
an evidentiary hearing on January 18–24, 2011.
¶15 At the January 18–24 hearing, Ms. Brown presented evidence
that she characterized as newly discovered. First, she presented
evidence “challenging the State’s theory that she was the only
person who had a motive to kill Lael.” This evidence showed that
Lael did not discover Ms. Brown’s forgeries before his murder. It
also showed that bank statements from months other than October
were missing from Lael’s home. Further, the evidence showed that
Lael’s former tenant, Bobbie Sheen, was angry that Lael had evicted
him.
¶16 Second, Ms. Brown presented evidence “challenging the
State’s theory that she was the only person who had access to Lael’s
home.” This evidence showed that people other than Ms. Brown had
a key to Lael’s house. It also showed that Lael’s house was not as
secure as previously represented—“the front and back doors to
Lael’s house were not secure,” and “the bathroom window could be
opened.”
¶17 Third, Ms. Brown presented evidence that Bobbie Sheen
“was the likely perpetrator of the homicide and, therefore, that the
State’s theory that she was the only possible person who could have
committed the murder was erroneous.” This evidence showed that
police “failed to investigate Sheen even though the police knew he
was a possible suspect.” It also showed that Sheen may have been in
possession of cash and a gun similar to the murder weapon after
Lael’s death. Further, Ms. Brown presented evidence “that police
failed to collect or analyze important evidence at the crime scene.”
¶18 Finally, Ms. Brown presented evidence challenging the
State’s theory that Lael’s murder occurred at 7:00 a.m. on Saturday,
November 6. Paulette Nyman, Lael’s neighbor, testified at trial that

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she heard gunshots Saturday morning. But at the January 18–24
hearing, she testified “that she was not sure when she heard
gunshots but that it was on the same day there was police activity at
Lael’s house, which would have been on Sunday, November 7th.”
¶19 The post-conviction court concluded that the evidence
Ms. Brown presented in the January 18–24 hearing did not establish
factual innocence. The court stated that, while her new evidence
“raises doubts about the State’s circumstantial case against her,” it
does “not establish that she did not engage in the conduct for which
she was convicted.” The court noted that “at best this evidence raises
doubts about the State’s theory, but it does not affirmatively
establish . . . that [Ms. Brown] was not the one who entered Lael’s
home on the morning of November 6th or that she did not, in fact,
cause Lael’s death.”
¶20 On January 26, 2011, the post-conviction court held a
conference call with the parties and indicated a willingness to reopen
Ms. Brown’s factual innocence case. The court expressed a concern
with two pieces of evidence that suggested Lael had been seen alive
later in the day on Saturday, November 6. After subsequent
investigation by the parties, the court scheduled a second
evidentiary hearing for March 7, 2011.
¶21 Three witnesses testified at the March 7 hearing. First, Lael’s
friend, Mr. Delwin Hall, testified that he saw Lael at Angie’s
Restaurant just before Mr. Hall went to work at 2:30 p.m. on
Saturday, November 6. Mr. Hall testified that he saw Lael
conversing with an unknown man at the counter by the cash
register. Mr. Hall stated that he saw Lael’s face. Mr. Hall did not
want to interrupt so he sat at the other end of the counter without
talking to Lael. Mr. Hall also testified that he saw Lael and the other
man leave Angie’s. Finally, Mr. Hall testified that he gave a
statement to a detective at the time of the murder. The detective’s
case information sheet recorded Mr. Hall’s statement as follows:
Del is a friend/coffee drinking buddy of Lael’s from
Angie’s. Dell related that he saw Lael Friday night at
Angies and also Saturday, 11-6-93 at approx. 1430
hours in Angies. Dell is sure of the time, because he
was stopping in Angie’s before going to work at
albertson at 1500 hours.
¶22 Second, another friend of Lael’s, Mr. Terry Carlsen, testified
that he saw Lael with his son Mike at Angie’s on Saturday,
November 6 between 7:15 p.m. and 7:45 p.m. Mr. Carlsen saw Lael

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and Mike enter the restaurant and sit at the end of the counter.
Mr. Carlsen was sure about the time because the next day a friend
came to inform him that Lael had been murdered. At that time,
Mr. Carlsen remembered thinking that he had just seen Lael the
night before. Mr. Carlsen also admitted, however, that Ms. Brown is
a friend of his and that he has had some contact with her since her
conviction.
¶23 Third, Lael’s son Mike testified for the State. He testified that
he saw Lael for the last time on November 1 and that he was not
with Lael on Saturday, November 6. The State also offered evidence
from police case information sheets “of interviews with waitresses
from Angie’s Restaurant, all of whom stated that they either did not
think Lael was at Angie’s on Saturday or that they did not remember
or did not recall seeing Lael at Angie’s on Saturday.”17
¶24 After hearing the evidence at the March 7 hearing, the post-
conviction court first determined that, under Part 4 of the PCRA, it
could base a determination of factual innocence “either upon newly
discovered material evidence alone or a combination of
evidence—as long as the newly discovered material evidence
provides at least part of that basis.” The court then reviewed
Mr. Carlsen’s testimony and found that it qualified as newly
discovered evidence because at the time of trial Ms. Brown and her
counsel were unaware of his testimony. The court also found that
Mr. Carlsen’s testimony was likely accurate. He was good friends
with Lael and would not have mistaken Lael for someone else. Also,
Mr. Carlsen likely would not have mistaken the day he saw Lael at
Angie’s given that a friend informed him of Lael’s death the very
next day. Finally, Mr. Carlsen’s testimony was consistent with Dr.
Grey’s time of death estimate at trial, which, based on the physical
evidence at the time of the autopsy, strongly suggested a time of
death beginning at 9:00 p.m. Saturday night until 3:00 a.m. on
Sunday.
¶25 The court also found that, although Lael’s son Mike testified
that he was not with his father at Angie’s on Saturday evening and
that the last time he saw his father was on Monday, November 1,
there were discrepancies in Mike’s testimony. He had testified
previously that he may have seen his father as late as Thursday and
also admitted that he could have had problems with his memory at
the time due to alcohol abuse. Thus, the court did not find reason in

17
The waitresses did not testify at the March 7 hearing.

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Mike’s testimony to doubt the accuracy of Mr. Carlsen’s testimony.
The court also found that the waitresses’ statements from the case
information sheets were not necessarily inconsistent with
Mr. Carlsen’s testimony. One waitress thought she may have seen
Lael on Saturday evening, although she was unsure, and the other
waitress stated only that she did not see Lael—she did not state
definitively that he was not there.
¶26 The court’s central concern with Mr. Carlsen’s testimony,
however, was his credibility. He had previously been convicted of
tampering with a witness, and his friendship with Ms. Brown may
have provided a motive for him to lie. The court also questioned
why it took Mr. Carlsen so long to come forward. The court
ultimately concluded that Mr. Carlsen’s testimony was “not
sufficiently credible to independently establish by clear and
convincing evidence that Lael was alive at a time when the State
argued he must have been dead.”
¶27 Next, the court reviewed Mr. Hall’s testimony. It found that
his testimony did not qualify as newly discovered evidence because
Mr. Hall’s name was on a defense witness list at the time of trial. The
court recognized, though, that Mr. Hall did not testify at trial and
had never testified at any proceeding before the March 7 hearing.
The court also found that it was “highly likely” that Mr. Hall
testified accurately. And the fact that Mr. Hall gave his statement to
a detective on November 10, just days after Mr. Hall claimed to have
seen Lael, suggested that Mr. Hall did not mistake the day on which
he saw Lael at Angie’s. Further, the court found that the waitresses’
statements in the case information sheets were not inconsistent with
Mr. Hall’s testimony. Some of the waitresses were not working at the
time Mr. Hall claimed to have seen Lael at Angie’s. The other
waitresses did not definitively state that Lael was not at Angie’s
Saturday afternoon.
¶28 The court found that Dr. Grey’s time of death estimate
bolstered Mr. Hall’s testimony. Dr. Grey testified at trial, and again
at the January 18–24 hearing, that based on the physical evidence,
Lael died at approximately 9:00 p.m. on Saturday evening. The court
also concluded that there was no evidence suggesting Mr. Hall was
not a credible witness. The only inconsistency in Mr. Hall’s
testimony was that he originally told the detective that he saw Lael
at 2:30 p.m. on Saturday, November 6. But at the March 7 hearing,
he testified it would have been closer to 1:00 p.m. The court
determined, however, that, given the passage of time, this was not
a material inconsistency. The court therefore concluded that Mr. Hall

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“testified truthfully about what he saw.”
D. The Post-Conviction Court’s Determination of Factual Innocence
¶29 Based on the above evidence and findings, the post-
conviction court made two additional findings. First, the court found
“by clear and convincing evidence that Lael Brown was alive
Saturday afternoon on November 6, 1993.” In making this finding,
the court relied principally on Mr. Hall’s testimony that he saw Lael
at Angie’s Saturday afternoon. But in keeping with the court’s
determination that newly discovered evidence must provide some
basis for its determination of factual innocence, it concluded that
Mr. Carlsen’s testimony provided “some evidence in support of a
finding that Lael was alive Saturday afternoon.”
¶30 Second, the court found “by clear and convincing evidence
that [Ms. Brown’s] whereabouts from Saturday afternoon on
November 6th to the early morning hours of Sunday, November 7th,
have been firmly established.” In making this finding, the court
made three points. First, “no evidence has ever been presented even
suggesting that it was [Ms. Brown] who committed the homicide
during [a time period other than Saturday morning].” Second, “one
of the specific facts set forth by the Utah Supreme Court in its
decision on [Ms. Brown’s] direct appeal was that she ‘could account
for her whereabouts for the entire weekend except the hours between
6:40 a.m. and 10:00 a.m. on Saturday, November 6.’”
¶31 Finally, the court undertook an “independent assessment of
the record” to determine that Ms. Brown’s “whereabouts [were]
accounted for from 10:00 a.m. Saturday afternoon until Sunday
morning at 3:00 a.m.” According to the court’s account, Ms. Brown’s
son saw his mother when he awoke around 10:00 a.m. At around
10:20 a.m., Ms. Brown’s then-boyfriend, Brent Skabelund, came to
take Ms. Brown to her son’s basketball game. They left for the game
at around 10:45 a.m. At about 12:15 p.m., Mr. Skabelund and
Ms. Brown left the game and stopped for lunch at a local drive-in.
¶32 The court further found that Mr. Skabelund then took
Ms. Brown home where she took a nap until about 2:00 p.m. For the
next hour or so, Ms. Brown delivered soup to Lael’s house, possibly
delivered soup to her daughter, and went shopping. She then called
Mr. Skabelund at about 4:00 p.m. He again picked her up at about
4:30 p.m., and the two of them went grocery shopping. They
returned to Ms. Brown’s home at about 5:40 p.m., put away the
groceries, and had pizza for dinner.
¶33 Finally, the court found that Ms. Brown and Mr. Skabelund

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remained together at Ms. Brown’s house until about 6:45 p.m., when
they left to watch movies at Mr. Skabelund’s residence. Ms. Brown
fell asleep while watching a movie at about 8:30 p.m. and slept until
about midnight. After she awoke, Ms. Brown drove home where she
saw her son playing video games. Ms. Brown then went to bed, and
her son indicated that she did not leave the house again that night.
¶34 The court based the above assessment of the evidence in part
on Ms. Brown’s testimony. The court noted that “the manner in
which [she] testified and her demeanor on the witness stand did not
suggest that she was lying or simply providing self-serving
responses.” The court thus found that Ms. Brown “testified
truthfully at the evidentiary hearing.” The court further noted that
while Ms. Brown “may have been alone during a portion of the
afternoon on Saturday, no evidence has ever been presented
establishing that Lael was killed during [this] time period.” Finally,
the court recognized that, “despite having denied for years that she
stole money from Lael, she candidly admitted that she had . . .
forged checks belonging to Lael as the State alleged at trial.”
¶35 Based on its findings (1) that Lael was alive on Saturday
afternoon, November 6 and (2) that Ms. Brown established her
whereabouts for the remaining time during which the murder must
have occurred, the post-conviction court determined by clear and
convincing evidence that Ms. Brown was factually innocent. The
court then vacated Ms. Brown’s conviction for aggravated murder.
The State appealed the post-conviction court’s order to us. We have
jurisdiction pursuant to section 78A-3-102(3)(I) of the Utah Code.
STANDARD OF REVIEW
¶36 The post-conviction court interpreted Part 4 of the PCRA to
allow it to base its determination of factual innocence on a
combination of newly discovered evidence and previously available
evidence. “We review a district court’s interpretation of a statute for
correctness.”18
¶37 The post-conviction court also concluded that Ms. Brown
established her factual innocence by clear and convincing evidence.
In making this determination, the post-conviction court made factual
findings. “Because a trial court is in a better position to judg[e]
credibility and resolv[e] evidentiary conflicts, an appellate court

18
H.U.F. v. W.P.W., 2009 UT 10, ¶ 19, 203 P.3d 943.

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reviews the trial court’s findings of fact for clear error.”19 We will set
aside a district court’s factual finding as clearly erroneous only if it
is “against the clear weight of the evidence, or if [we] otherwise
reach[] a definite and firm conviction that a mistake has been
made.”20
ANALYSIS
¶38 On appeal, the State first argues that the post-conviction
court erred in concluding that a determination of factual innocence
can be based on a combination of newly discovered evidence and
previously available evidence, so long as the newly discovered
evidence provides some of the basis for the determination. Next, the
State argues that the post-conviction court erred in determining that
Ms. Brown established her factual innocence by clear and convincing
evidence. Ms. Brown cross-appeals and argues that the post-
conviction court erred in granting summary judgment on her claims
under Part 1 of the PCRA. She also argues that, even if her claims
under Part 1 of the PCRA are time-barred, the statute of limitations
in the PCRA is unconstitutional.
¶39 We affirm the post-conviction court. We first interpret Part
4 of the PCRA and hold that a post-conviction determination of
factual innocence can be based on both newly discovered evidence
and previously available evidence. Next, because the State did not
properly challenge the post-conviction court’s factual findings, we
affirm the post-conviction court’s ultimate determination that
Ms. Brown is factually innocent. We therefore do not reach
Ms. Brown’s cross-appeal.
I. THE PLAIN LANGUAGE OF THE PCRA ALLOWS A
DETERMINATION OF FACTUAL INNOCENCE TO BE BASED
ON BOTH PREVIOUSLY AVAILABLE EVIDENCE
AND NEWLY DISCOVERED EVIDENCE
¶40 Part 4 of the PCRA21 contemplates a two-stage process for

19
State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096 (alterations in
original) (internal quotation marks omitted).
20
State v. Walker, 743 P.2d 191, 193 (Utah 1987).
21
Ms. Brown filed her petition for factual innocence in 2009, but
the parties and the post-conviction court have all relied on the 2010
version of the PCRA up to this point in the proceedings. The 2010
amendments did not materially alter the language at issue in this
(continued...)

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establishing factual innocence. Section 78B-9-402 sets forth what a
petitioner must do at the first stage to receive an evidentiary hearing
on her petition for factual innocence.22 If the petitioner meets her
threshold burden under section 402, a post-conviction court turns to
the second stage of the process, which is outlined in section 78B-9-
404. That provision sets forth how the evidentiary hearing is to
proceed and gives direction to courts on how to determine factual
innocence.23 The parties’ arguments on appeal center on what role
newly discovered evidence must play in this process.
¶41 In its Memorandum Decision, the post-conviction court
recognized that the plain language of section 404 does not require a
finding of factual innocence to be based on newly discovered
evidence. The court determined, however, that given the emphasis
on newly discovered evidence at the pleading stage of a factual
innocence claim under section 402, “[i]t would be peculiar if a
similar evidentiary basis did not apply during the hearing stage.” It
thus concluded that “it may base its determination of factual
innocence either upon newly discovered evidence alone or a
combination of evidence—as long as the newly discovered material
evidence provides at least part of that basis.”
¶42 The State maintains that the post-conviction court erred
when it determined that newly discovered evidence need only
provide a part of the basis for a determination of factual innocence.
The State argues that, “[w]hen properly read, the PCRA’s factual
innocence part requires that newly discovered evidence establish

21
(...continued)
case. So to maintain consistency, we also rely on the 2010 version
unless otherwise noted.
22
See UTAH CODE § 78B-9-402 (stating that “[a] person . . . may
petition the district court . . . for a hearing to establish that the
person is factually innocent” and setting forth the threshold
requirements). We stress that the sufficiency of Ms. Brown’s petition
is not at issue on this appeal. We consider section 402 only to place
section 404 in proper context. But given that Ms. Brown did not
include the evidence provided by Mr. Carlsen and Mr. Hall in her
petition for factual innocence, there is a question whether her
petition should have been granted in this case. As the post-
conviction court noted, however, the State never challenged whether
Ms. Brown’s evidentiary hearing should go forward.
23
See generally id. § 78B-9-404.

13
 BROWN v. STATE
Opinion of the Court

factual innocence, not merely play some part in the determination.”
The State thus contends that the newly discovered evidence must be
“the pivotal transformative evidence” in the court’s factual
innocence determination.
¶43 As an initial matter, the State does not dispute that
Mr. Carlsen’s testimony is “newly discovered evidence,” as that
term is defined in the PCRA.24 Due to issues of credibility, however,
the court determined that Mr. Carlsen’s testimony was entitled only
“to some weight” and that his testimony did not “independently
establish by clear and convincing evidence that Lael was alive at a
time when the State argued he must have been dead.” The court
found, however, that Mr. Carlsen’s testimony, as newly discovered
evidence, “constitutes some evidence in support” of its factual
innocence finding. The issue for us, therefore, is to determine
whether newly discovered evidence must be the “pivotal” or
“transformative” evidence in support of factual innocence or
whether it need only provide some basis for the court’s ultimate
decision.
¶44 This issue presents a question of statutory interpretation.
“Our primary objective in interpreting a statute is to give effect to
the intent of the legislature.”25 In so doing, “we look first to its plain
language and presume that the legislature used each word advisedly
and read each term according to its ordinary and accepted
meaning.”26 Although “statutory text may not be plain when read in
isolation, [it] may become so in light of its linguistic, structural, and

24
See id. § 78B-9-401.5(3) (“‘Newly discovered material evidence’
means evidence that was not available to the petitioner at trial or
during the resolution on the merits by the trial court of any motion
to withdraw a guilty plea or motion for new trial and which is
relevant to the determination of the issue of factual innocence . . . .”).
Ms. Brown disputes the post-conviction court’s determination that
Mr. Hall’s testimony is not newly discovered evidence. Because the
State agrees, however, that Mr. Carlsen’s testimony is newly
discovered, and because we affirm the post-conviction court’s
conclusion that a determination of factual innocence can be based on
a combination of old and new evidence, we do not reach this
argument.
25
State v. J.M.S. (In re J.M.S.), 2011 UT 75, ¶ 13, 280 P.3d 410.
26
Boyle v. Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810 (internal
quotation marks omitted).

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statutory context.”27 Thus, “our interpretation of a statute requires
that each part or section be construed in connection with every other
part or section so as to produce a harmonious whole.”28 Finally, “[i]f
the language of the statute yields a plain meaning that does not lead
to an absurd result, the analysis ends.”29
¶45 We conclude that the plain language of the PCRA allows a
court to base its determination of factual innocence on all available
evidence—both old and new. Beginning with stage one, section 402,
entitled “Petition for determination of factual innocence—Sufficient
allegations—Notification of victim,” sets forth threshold
requirements a petitioner must meet to receive an evidentiary
hearing.30 Section 402 states that “[t]he petition shall contain an
assertion of factual innocence under oath by the petitioner, and shall
aver, with supporting affidavits or other credible documents, that . . .
newly discovered material evidence exists that, if credible,
establishes that the petitioner is factually innocent.”31
¶46 Section 402 directs the court to view the petitioner’s
averment of newly discovered evidence “with all the other evidence”
to determine whether the petitioner has met the threshold
requirements for a hearing.32 Based on the plain language of section
402, it is clear that, in order to be entitled to an evidentiary hearing,
a petitioner must allege that newly discovered evidence exists that
establishes factual innocence. And the court, in order to grant the
petition for an evidentiary hearing, must determine that the newly
discovered evidence, when viewed with all the other evidence,
demonstrates factual innocence. Accordingly, section 402 requires a

27
Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465
(internal quotation marks omitted).
28
Anderson v. Bell, 2010 UT 47, ¶ 9, 234 P.3d 1147 (internal
quotation marks omitted).
29
Carranza v. United States, 2011 UT 80, ¶ 8, 267 P.3d 912.
30
See UTAH CODE § 78B-9-402(1) (“A person . . . may petition the
district court . . . for a hearing to establish that the person is factually
innocent . . . .”).
31
Id. § 78B-9-402(2)(a). The newly discovered material evidence
must also “establish[] innocence” and be more than “impeachment
evidence” or “cumulative of evidence that was known.” Id. § 78B-9-
402(2)(a)(ii)–(iv).
32
Id. § 78B-9-402(2)(a)(v), -402(2)(b) (emphasis added).

15
 BROWN v. STATE
Opinion of the Court

threshold showing of newly discovered evidence that a petitioner
must meet in order to receive an evidentiary hearing.
¶47 We note that at the petition stage, the court is in no position
to assess credibility. Section 402 requires the petitioner to assert
factual innocence under oath and to include “supporting affidavits
or other credible documents,” but beyond this requirement, the
petitioner need only allege newly discovered evidence that—“if
credible”—“establishes that the petitioner is factually innocent.”33
Thus, section 402 limits the court to the content of the petition and
requires it to assume the new evidence is credible.
¶48 We also note that, even at the petition stage, the plain
language of section 402 undercuts the State’s argument that newly
discovered evidence must be “the pivotal, transformative evidence”
in the court’s determination of factual innocence. Section 402
explicitly directs the court to view the new evidence “with all the
other evidence.”34 Nowhere does it state that the newly discovered
evidence alone must be determinative. Therefore, even section 402
contemplates that it will require a combination of new and old
evidence to establish factual innocence.
¶49 Once a petitioner makes the threshold showing of newly
discovered evidence and the court grants the petition for an
evidentiary hearing, the petitioner moves to the second stage of the
process, which is set forth in section 78B-9-404. Section 404 is entitled
“Hearing upon petition—Procedures—Court determination of
factual innocence.” It places the burden on the petitioner to
“establish the petitioner’s factual innocence by clear and convincing
evidence.”35 In determining whether the petitioner has met the
burden of establishing factual innocence, “the court shall consider, in
addition to the evidence presented at the hearing under this part, the
record of the original criminal case and at any postconviction
proceedings in the case.”36
¶50 Section 404 clearly contemplates that the court will consider
the full universe of evidence available in the case. It even provides
that “[t]he court may consider: (a) evidence that was suppressed or

33
Id. § 78B-9-402(2)(a)(i).
34
Id. § 78B-9-402(2)(a)(v).
35
Id. § 78B-9-404(1)(b).
36
Id. § 78B-9-404(3) (emphasis added).

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Opinion of the Court

would be suppressed at a criminal trial; and (b) hearsay evidence.”37
Importantly, section 404 never uses the phrase “newly discovered
evidence.” Nor does it provide any direction on how much weight
to place on any one type of evidence. Again, nowhere does it state
that newly discovered evidence alone must be determinative.
Instead, the plain language of section 404 provides only one clear
directive: a court shall base its determination of factual innocence on
a consideration of “all the evidence”—old and new.38
¶51 The State argues, however, that section 404 merely
establishes what evidence is admissible at the factual innocence
hearing. It does not, the State contends, override the requirement in
section 402 that newly discovered evidence must establish factual
innocence. But section 404’s plain language indicates that the
legislature intended the section to provide direction to courts on
how to determine a claim of factual innocence, not just to set forth
what evidence is admissible. For example, it is only by looking to
section 404 that we discover the evidentiary standard and a party’s
burden for establishing a claim of factual innocence.39 Moreover, the
title of section 404 is “Court determination of factual innocence.”40
Therefore, section 404 governs a court’s ultimate determination of
factual innocence, not section 402.
¶52 Common sense supports our conclusions that section 404
controls a court’s ultimate determination of factual innocence and
that a court may base its determination on all the available evidence.
Indeed, it would be strange to direct a court to consider “all the
evidence” but then limit its decision to only the pivotal new
evidence, especially without giving the court any guidance on how
to determine whether a given piece of evidence is, in fact, pivotal.
There is no reason to direct a court to “consider” evidence if that
evidence cannot play a significant role in the court’s ultimate
decision.41 Furthermore, it is not workable to require courts to

37
Id. § 78B-9-404(2).
38
Id. § 78B-9-404(4).
39
See id. § 78B-9-404(1)(b), (4) (providing that “[t]he burden is
upon the petitioner to establish the petitioner’s factual innocence”
and directing the court to determine factual innocence by “clear and
convincing evidence”).
40
Id. § 78B-9-404.
41
See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 279 (1988)
(continued...)

17
 BROWN v. STATE
Opinion of the Court

identify particular evidence as pivotal. A court could be faced with
two pieces of evidence: one developed at the original trial and a
second at the factual innocence hearing. Either one alone could be
meaningless, but both taken together could be significant. We
therefore decline the State’s invitation to require courts to base their
decisions exclusively on newly discovered pivotal or transformative
evidence.
¶53 Finally, the State contends that “[i]f a factual innocence
determination could be based on previously presented evidence, a
post-conviction court could improperly substitute its judgment for
the jury’s.” As discussed above, however, the State concedes that
Mr. Carlsen’s testimony is newly discovered evidence. Thus, we are
not faced with the issue of whether a court could base its decision of
factual innocence solely on previously available evidence. We
recognize only that, under the plain language of the PCRA,
previously available evidence can play a significant role in the
court’s ultimate decision of factual innocence. Because this plain
reading of the statute is in no way unreasonable, our analysis ends.42
But we are also confident that the high threshold showing of new
evidence in section 402, when strictly applied,43 will ensure that
newly discovered evidence plays a role in a court’s determination of
factual innocence under section 404.
¶54 We therefore hold that, under the plain language of the
PCRA, the post-conviction court did not err in concluding that a
determination of factual innocence can be based on a combination
of newly discovered evidence and previously available evidence.
II. BECAUSE THE STATE FAILED TO PROPERLY CHALLENGE
THE POST-CONVICTION COURT’S FACTUAL FINDINGS,
WE AFFIRM THE COURT’S DETERMINATION OF
FACTUAL INNOCENCE
¶55 After the March 7 hearing, the post-conviction court made
two critical factual findings in reaching its ultimate determination
of factual innocence. First, the court found “by clear and convincing

41
(...continued)
(defining “consider” as “to think about carefully,” especially “with
regard to taking some action”).
42
Carranza, 2011 UT 80, ¶ 8; LPI Servs. v. McGee, 2009 UT 41, ¶ 11,
215 P.3d 135.
43
See supra ¶ 40 n.22.

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Opinion of the Court

evidence that Lael Brown was alive Saturday afternoon on
November 6, 1993.” Second, the court found “by clear and
convincing evidence that [Ms. Brown’s] whereabouts from Saturday
afternoon on November 6th to the early morning hours of Sunday,
November 7th, have been firmly established.” Based on these two
findings, the court “determine[d] by clear and convincing evidence
that [Ms. Brown] did not engage in the conduct for which she was
convicted and is, therefore, factually innocent of the aggravated
murder of Lael Brown.”
¶56 The State contends that the post-conviction court misapplied
the standard for factual innocence. The State argues that “a
reasonable juror could hear all of [Ms. Brown’s] evidence, including
[Mr.] Hall’s testimony, and still find [Ms. Brown] guilty.” This, the
State claims, is because “the post-conviction court’s conclusion . . .
is not the only reasonable conclusion to be drawn from the evidence.
A juror could reasonably weigh the evidence differently.”
Specifically, the State argues that (1) evidence exists that contradicts
Hall’s testimony; (2) while Brown’s motive to murder Lael was
disputed at trial, she now admits to forging Lael’s checks; and (3) it
is possible that Ms. Brown murdered Lael at a time other than
Saturday morning. Therefore, the State maintains that Ms. Brown
failed to demonstrate by clear and convincing evidence that she did
not engage in the conduct for which she was charged.
¶57 The State also argues that our deferential clear error
standard of review does not apply to the post-conviction court’s
ultimate determination of factual innocence. In so arguing, it
concedes that it “is not challenging any of the post-conviction court’s
factual findings.” The State instead contends that the ultimate
determination of factual innocence is a mixed question of fact and
law and that, once we apply this standard, the post-conviction
court’s determination deserves little, if any, deference.
¶58 We conclude that, while the ultimate determination of
factual innocence may be a mixed question of fact and law, this
point is inconsequential in light of the State’s explicit
acknowledgment that the post-conviction court’s factual findings are
accurate. Because the State declined to challenge the court’s factual
findings as clearly erroneous, we accept the findings as true and
therefore must conclude that Ms. Brown has established her factual
innocence. We therefore affirm the post-conviction court.
¶59 We have stated that “[s]tandards of review should allocate
discretion between the trial and appellate courts in a way that takes
account of the relative capabilities of each level of the court

19
 BROWN v. STATE
Opinion of the Court

system.”44 “[A]n appellate court reviews a trial court’s conclusions
of law for correctness because a single trial judge is in an inferior
position to determine what the legal content of [a legal concept]
should be.”45 Conversely, “[b]ecause a trial court is in a better
position to judg[e] credibility and resolv[e] evidentiary conflicts, an
appellate court reviews the trial court’s findings of fact for clear
error.”46
¶60 In this case, the post-conviction court made two findings that
were purely factual: (1) Lael was alive Saturday afternoon on
November 6, and (2) Ms. Brown firmly established her whereabouts
between Saturday afternoon and the remaining time the murder
could have occurred.47 Furthermore, the court reached these findings
only after judging credibility and resolving evidentiary conflicts. For
example, the court weighed Mr. Carlsen’s credibility, found that
Mr. Hall testified truthfully, and specifically considered “the manner
in which [Ms. Brown] testified and her demeanor on the witness
stand.” The court also discounted the testimony of Lael’s son, Mike,
due to admitted memory problems and placed less weight on
hearsay evidence offered by the State. And the court considered and
discounted the State’s evidence suggesting a time of death earlier
than 9:00 p.m. on Saturday, November 6. Because the court’s
findings are purely factual and based on credibility judgments and
resolutions of evidentiary conflicts, we apply the deferential clear
error standard on appeal.
¶61 Yet the State declines to undertake a clear error analysis on
this appeal “because [it] is not challenging any of the post-conviction
court’s factual findings.” [State’s Reply Brief, 16 (emphasis added).]
Thus, the State has explicitly acknowledged that it does not
challenge any of the post-conviction court’s factual findings. Chief
among these are that (1) Lael was alive as of Saturday afternoon; and

44
State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (internal quotation
marks omitted).
45
Id. ¶ 20 (second alteration in original) (internal quotation marks
omitted).
46
Id. (second and third alterations in original) (internal quotation
marks omitted).
47
See State v. Pena, 869 P.2d 932, 935 (Utah 1994) (“Factual
questions are generally regarded as entailing the empirical, such as
things, events, actions, or conditions happening, existing, or taking
place, as well as the subjective, such as state of mind.”).

20
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Opinion of the Court

(2) Ms. Brown firmly established her whereabouts during the period
in which Mr. Brown must have been murdered. While the State
admits these two central facts, it nevertheless argues that the
application of these facts to the legal standard for establishing
factual innocence constitutes a mixed question of fact and law.
¶62 Given this concession, the State’s position on this issue is
confusing. On the one hand, the State clearly concedes the post-
conviction court’s factual findings that Lael was alive Saturday
afternoon and that Ms. Brown firmly established her whereabouts
for the remaining time period during which the murder could have
occurred. But on the other hand, the State attacks the underlying
evidence on which the court relied in making these factual findings
by exhaustively listing other credible evidence that would allow a
juror to still find Ms. Brown guilty.48
¶63 In offering these two inconsistent positions, the State
appears to mistake findings of fact with evidence. We readily recognize
the existence of evidence in this case that calls into question the post-
conviction court’s factual findings. And we agree with the State that
the court’s ultimate decision of factual innocence “is not the only

48
For example, the State points out that (1) “[n]one of the
waitresses who worked at Angie’s on that Saturday recalled seeing
Lael that day”; (2) “[t]he man that [Mr.] Hall allegedly saw with Lael
has never come forward to confirm that he was with Lael on that
Saturday afternoon”; (3) “Lael did not answer numerous phone calls
from his granddaughter and ex-wife on Saturday, even though his
ex-wife routinely called on Saturday mornings”; (4) “Lael’s truck
was in his driveway from at least 10:00 a.m. to 4:30 p.m.”; (5) “Lael’s
neighbor . . . was outside during that time and never saw Lael come
or go or follow his usual practice of puttering around his yard”;
(6) “Lael never returned on Saturday to complete the plumbing
repairs, despite his promise to do so”; (7) Lael never picked up
Ms. Brown’s soup, so he would have had to step over it twice on his
way to and from Angie’s Restaurant if Mr. Hall’s testimony was
accurate; (8) it is still undisputed that Ms. Brown had access to Lael’s
house; (9) Ms. Brown now admits to forging Lael’s checks;
(10) Ms. Brown’s son’s testimony at trial that he saw Lael write a
check to his mother is now false; (11) there is evidence that Lael
discovered Ms. Brown’s forgeries before his death; (12) the missing
bank records from Lael’s house still implicate only Ms. Brown; and
(13) Ms. Brown still could have committed the murder later in the
day on Saturday, November 6. [State’s Brief, 48-54.]

21
 BROWN v. STATE
Opinion of the Court

reasonable conclusion to be drawn from the evidence.” [State’s Brief,
49.] But in light of the State’s concession that the court’s factual
findings are accurate, the mere existence of contradictory, underlying
evidence is of no consequence. It is precisely because the court had to
judge credibility and resolve conflicting evidence that we now grant
deference to its factual findings. In our court system, district courts
are better positioned to make these findings.49 We therefore decline,
as an appellate court, to scrutinize the post-conviction court’s factual
findings where the State has explicitly acknowledged their accuracy.
¶64 Given our conclusion relating to the State’s concession, there
is no merit to the State’s claim that the post-conviction court
misapplied the standard for factual innocence. It is true that the
post-conviction court ultimately applied a legal concept. This
concept required Ms. Brown to show by clear and convincing
evidence that she did not “engage in the conduct for which [she]
was convicted.”50 But it is nevertheless true that the post-conviction
court found that Lael must have been murdered at a time when
Ms. Brown had an established alibi. Once these facts are accepted,
as they must be in light of the State’s concession, they lead inevitably
to the conclusion that Ms. Brown did not murder Lael and is
factually innocent.
¶65 The dissent criticizes our reliance on the State’s concession,
however, as overly broad and unfair.51 It argues that in the context
of the overall briefing, the State meant to concede only “pure” facts,
not “hybrid” facts—a distinction the dissent admits is invalid.52 The
dissent contends that the two critical findings discussed above
regarding the time of Lael’s death and Ms. Brown’s whereabouts
were challenged by the State on appeal as “hybrid” facts and thus do
not fall within the State’s concession.53 The dissent would therefore
review the post-conviction court’s factual findings under a clear

49
Levin, 2006 UT 50, ¶ 20.
50
UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see
also Greener v. Greener, 212 P.2d 194, 204 (Utah 1949) (stating that
clear and convincing evidence “carries with it, not only the power to
persuade the mind as to the probable truth or correctness of the fact
it purports to prove, but has the element of clinching such truth or
correctness”).
51
Infra ¶¶ 77–78.
52
Infra ¶¶ 94–95, 99.
53
Infra ¶ 95.

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error standard and reverse.54 While the dissent presents an analysis
that is thoughtful and worthy of careful consideration, we
respectfully disagree with it for a number of reasons.
¶66 First, the way in which the State has briefed its case is wholly
consistent with its explicit concession that it is not challenging the
post-conviction court’s factual findings. It makes no attempt to meet
its burden on appeal to demonstrate that the factual
findings—whether “pure” or “hybrid”—are clearly erroneous.55 The
State instead openly insists that a clear error analysis is unnecessary,
which can only be true, of course, if the facts are not at issue.
Moreover, the State does not even purport to marshal the evidence.56
It merely, though exhaustively, lists the evidence it claims
contradicts the evidence relied on by the post-conviction court in
making its finding of factual innocence.57 But it makes no effort to
assume the role of devil’s advocate and marshal the evidence in
support of the court’s factual findings,58 which, again, is consistent
with its assertion that it is not challenging the court’s factual
findings.
¶67 This is not a case where a party is simply unaware of its
burden on appeal. Indeed, the State repeatedly cites the correct
standard, including the duty to marshal the evidence, to us in its
briefing. [State’s Brief, 2; State’s Reply Brief, 13–14.] Whether or not
the State’s failure to argue clear error was grounded on a distinction

54
Infra ¶ 119.
55
See In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989) (discuss-
ing a party’s burden when challenging a factual finding).
56
We stress that we do not “fault the State for a failure to mar-
shal” the evidence. Infra ¶ 101. We merely note that its failure to do
so is consistent with its position that it is not challenging the post-
conviction court’s factual findings on appeal.
57
Supra ¶ 62 & n.49.
58
See United Park City Mines Co. v. Stichting Mayflower Mountain
Fonds, 2006 UT 35, ¶ 26, 140 P.3d 1200. The dissent recommends that
we “abandon this principle” of requiring parties to assume the role
of devil’s advocate when marshaling the evidence. Infra ¶ 106. But
regardless of any merit that argument may have going forward, for
purposes of this case, our marshaling standard unquestionably
governs any challenge by the State of factual findings on appeal, and
the State is, of course, well aware of that requirement. [State’s Reply
Brief, 14.]

23
 BROWN v. STATE
Opinion of the Court

between “hybrid” and “pure” facts, it remains the case that the State,
based on its concession, failed to carry its burden on appeal.59 Thus,
we conclude that the overall context of the State’s briefing supports
our decision in this case.60

59
See In re Estate of Bartell, 776 P.2d at 886 (stating that the court
must “rely heavily on the presumption of correctness that attends
[factual] findings” when a party fails to carry its burden to demon-
strate clear error). The dissent acknowledges that the State has failed
to present a clear error analysis. See infra ¶ 111 (“The State should . . .
have framed [its] argument in terms of the applicable standard of
appellate review. It should have asserted that there was ‘clear error’
in not concluding that Ms. Brown had failed to remove all ‘serious
or substantial doubt’ as to her factual innocence.”). It nevertheless
deems this a “rhetorical deficiency” and concludes that the State
“effectively challenges” the post-conviction court’s factual findings
“on that basis.” Infra ¶¶ 100, 108. The dissent thus characterizes the
State’s approach in a way the State itself has expressly rejected.
The State’s claim that the clear error standard does not apply on
appeal was in direct response to Ms. Brown’s application of the clear
error standard in her brief. [See Brown’s Brief, 42; State’s Reply Brief,
15.] Ms. Brown analyzed each of the post-conviction court’s factual
findings, including the two key findings regarding Lael’s time of
death and Ms. Brown’s whereabouts, using a clear error analysis.
[Brown’s Brief, 42–48.] In so doing, Ms. Brown explicitly pointed out
that the State had employed the wrong standard of review—a
“reasonable juror” standard—for challenging factual findings in its
opening brief. [Brown’s Brief, 47.] One would expect, therefore, that
if the State is indeed challenging the facts, as the dissent maintains
it is, it would have disputed Ms. Brown’s contention that it applied
the wrong standard of review. But instead, the State concedes in its
reply brief that it is not challenging the facts. [State’s Reply Brief, 16.]
Thus, in attempting to excuse the State’s “rhetorical deficiency,” the
dissent ignores the explanation the State itself gives for its approach:
it means only to argue that the court erred in its application of the
factual innocence standard, even accepting the court’s factual
findings. [State’s Brief, 47–49]; see also supra ¶ 56.
60
We therefore disagree with the dissent that we are misconstru-
ing a “single”sentence in the State’s overall briefing. See infra ¶¶ 72,
79. As the dissent recognizes, the concession appears in a section of
the State’s reply brief in which it contests Ms. Brown’s application of
(continued...)

24
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Opinion of the Court

(...continued)
the clear error standard of review. Infra ¶ 89. The full paragraph in
which the State conceded the post-conviction court’s factual findings
reads as follows:
Applicable standard of review. [Ms. Brown] first
argues that the applicable standard of review is clear
error. But that standard applies only when a court
reviews purely factual questions. The clear error
standard does not apply in this case, because the State
is not challenging any of the post-conviction court’s
factual findings. Rather, the State challenges only the
court’s legal conclusions based on its factual findings.
[State’s Reply Brief, 15–16.] It is difficult to see how the State could
have stated more clearly that it is not challenging the underlying
factual findings in this case. And, as discussed above, the State
briefed its argument consistent with this concession by not engaging
in a clear error analysis.
We also disagree that the State’s arguments in its reply brief or
elsewhere diminish or clarify the scope of its concession. Infra
¶¶ 91–92. We openly recognize that the State presents us with
evidence that contradicts the post-conviction court’s factual findings.
See supra ¶¶ 62–63 & n.49. But we believe the dissent misapprehends
the State’s apparent tactic in doing so. The State is not—as it
concedes—seeking to overturn the court’s factual findings under a
clear error analysis. It instead attempts to show that, in light of the
contradictory evidence, the court erred in concluding that the factual
innocence standard had been met, even accepting the unchallenged
factual findings. [State’s Brief, 47–49.] This is because, according to
the State, “a reasonable juror” could disagree with the court, [State’s
Brief, 48], or the court’s decision “is not the only reasonable conclu-
sion” given the evidence, [State’s Brief, 49].
The “confusion” we expressed on this point earlier in this
opinion, supra ¶ 62, does not relate to the scope of the State’s
concession, as the dissent seems to suggest, see infra ¶ 88. Rather, we
were simply expressing confusion as to why the State would
undertake such a strategy. See supra ¶¶ 63–64. At this juncture in the
process, it is not our role to determine what a reasonable juror
would conclude as to the facts or whether there are other reasonable
factual conclusions in light of the evidence. Our role is limited: we
decide only whether the court committed clear error in making the
(continued...)

25
 BROWN v. STATE
Opinion of the Court

¶68 Second, we disagree with the dissent’s construction of the
State’s concession as running only to so-called “pure”facts.61 Any
confusion as to the scope of the concession was cleared up by the
State itself when it stated, immediately after its concession, that it
“challenges only the court’s legal conclusions based on its factual
findings.” [State’s Reply Brief, 16 (emphasis added).] This statement
clearly concedes all factual findings, whether “pure” or “hybrid,” by
placing only the post-conviction court’s “legal conclusions” at issue
on appeal. Surely the State did not mistakenly assume the court’s
key factual findings as to the time of Lael’s death and Ms. Brown’s
whereabouts to be legal conclusions.62
¶69 Although the State has declined to challenge the post-
conviction court’s factual findings for clear error, the dissent has
done so in an able and vigorous way.63 While we do not reach this
issue given our reliance on the State’s concession, we nevertheless
express disagreement with how the dissent has approached its
analysis. The dissent proposes that, by “pure” factual findings, the
State simply meant findings as to witness credibility at the post-
conviction hearings; and that, by “hybrid” findings, the State meant
those findings implicating evidence from the first trial.64 Both
Mr. Hall and Ms. Brown testified for the first time at the post-
conviction hearings,65 and the court made specific credibility
findings as to each.66 Thus, these findings would presumably qualify
as unchallenged “pure” facts under the dissent’s approach. The
dissent seems to disregard, however, the post-conviction court’s

(...continued)
factual findings that it made. Levin, 2006 UT 50, ¶ 20; see also
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 580–81 (1985).
61
Infra ¶ 98.
62
But see infra ¶ 90 (arguing that “[i]n context, it is impossible to
read [the State’s concession] fairly to encompass the ‘key’ determina-
tions of the timing of Mr. Brown’s death and the whereabouts of Ms.
Brown”).
63
Infra ¶ 119–28. But see In re Estate of Bartell, 776 P.2d at 886
(recognizing that “the burden of overturning factual findings is a
heavy one, reflective of the fact that we do not sit to retry cases
submitted on disputed facts” (emphasis added)).
64
Infra ¶¶ 89–90.
65
Supra ¶¶ 21, 34.
66
Supra ¶¶ 27, 34.

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Opinion of the Court

credibility findings in its clear error analysis. Instead, the dissent
repeatedly dismisses Ms. Brown’s account of her whereabouts as
“subjective” and “self-serving” without acknowledging the
unchallenged finding that Ms. Brown testified credibly.67 So even if
we were to accept the dissent’s hypothesis that the State’s concession
runs only to so-called “pure” facts, we would still have to address
the difficult question of how the post-conviction court’s
determination is clearly erroneous when it is conceded to be based
on credible evidence.68

67
Infra ¶¶ 126, 127. We do not mean to suggest that the court’s
credibility findings could not be found to be clearly erroneous if
properly challenged. But the State, as the dissent recognizes,
concedes their accuracy. Their accuracy is therefore not at issue in
this case.
68
See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶¶ 72–73, 99 P.3d
801 (stating that district court’s factual finding was not clearly
erroneous, even in light of “plausible evidence” to the contrary,
where it was based on credible evidence); see also Anderson, 470 U.S.
at 575 (noting that factual findings “based on determinations
regarding the credibility of witnesses” are afforded “even greater
deference . . . for only the trial judge can be aware of the variations
in demeanor and tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said”).
The dissent also argues that the post-conviction court clearly
erred, even accepting its credibility findings, because Ms. Brown’s
“account of her whereabouts . . . does not at all rule herself out as
Lael Brown’s murderer.” Infra ¶ 115. This is because “even according
to Ms. Brown’s own evidence, she was at the scene of the crime at a
time when the murder may have been committed.” Infra ¶ 114.
Even were we to reach this issue, which we do not, we think there
is a serious question as to whether the court clearly erred in this
regard. The evidence is not at all clear that Ms. Brown’s account of
her whereabouts placed her at the scene of the crime at a time the
murder was committed. She certainly does admit, however, to
taking soup to Lael’s house on Saturday, November 6. According to
the court’s account of the record, she delivered the soup sometime
between 2:00 p.m. and 3:00 p.m. Mr. Hall originally stated that he
saw Lael alive at 2:30 p.m. but then testified at the factual innocence
hearing that it was closer to 1:00 p.m. Thus, depending on how we
view the evidence, there is at least a very narrow window, 2:30 p.m.
(continued...)

27
 BROWN v. STATE
Opinion of the Court

¶70 Regardless of whether Ms. Brown’s alibi is the “weakest [the
dissent has] heard of,”69 the mere fact that an alibi is self-serving
(they always are) or that it is offered by a boyfriend or a son does

(...continued)
to 3:00 p.m., and at most an hour window, 2:00 p.m. to 3:00 p.m.,
during which Ms. Brown placed herself at Lael’s house at a time
when Lael might possibly have been there. We therefore agree with
the dissent that there is potentially some room to doubt the court’s
finding that Ms. Brown firmly established her whereabouts, even
accepting the court’s credibility findings.
But the clear and convincing evidence standard, by its very
nature, tolerates some doubt. We have stated that “a burden of proof
is an expression of society’s tolerance for error in a particular realm
of the law.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 21, 270
P.3d 430. Clear and convincing evidence is an “intermediate
standard of proof” that “implies something more than the usual
requirement of a preponderance . . . of the evidence; and something
less than proof beyond a reasonable doubt.” Id. ¶¶ 21, 24 (internal
quotation marks omitted). We have characterized this standard as
requiring the “existence of facts that make a conclusion very highly
probable.” Id. ¶ 24 (internal quotation marks omitted).
Under this standard, and given the unchallenged credibility
findings, it is not a foregone conclusion that the court clearly erred
in determining that Ms. Brown established her whereabouts. The
State has never presented any evidence that the murder occurred
during the relevant hour of 2:00 p.m. to 3:00 p.m. Further, the court
specifically recognized that Ms. Brown “may have been alone during
a portion of the afternoon on Saturday” but discounted this fact
because “evidence was presented suggesting that Lael was not killed
during this time frame.” Specifically, Lael’s neighbor, Kimberly
Standridge, testified at trial that she did not hear any gunshots
Saturday afternoon and that, if there were any, she would have
heard them because she was working in her yard during the relevant
time. The court also relied on Dr. Grey’s time of death estimate
based on the physical evidence, which “strongly suggest[ed] that
Lael was likely killed around 9:00 p.m.,” not Saturday afternoon. In
our view, given this contrary evidence, the question is still open as
to whether the court clearly erred in discounting the doubt identified
by the dissent.
69
Infra ¶ 75.

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JUSTICE LEE, dissenting

not make it somehow inherently incredible as a matter of law. The
post-conviction court’s decision in this case was based on a weighing
of evidence and is laced with credibility findings.70 We are not
deciding this case in the first instance and should not presume that
we are more capable of analyzing credibility.71 Our role as an
appellate court is to assess whether there has been clear error as to
the post-conviction court’s factual findings.72 We have been
presented with no such argument and therefore affirm.
CONCLUSION
¶71 We affirm the post-conviction court. We hold that a post-
conviction determination of factual innocence can be based on both
newly discovered evidence and previously available evidence. Also,
because the State did not properly challenge the post-conviction
court’s factual findings, we affirm the post-conviction court’s
ultimate determination that Ms. Brown is factually innocent.
____________
JUSTICE LEE, dissenting:
¶72 The legal questions in this case seem to me to yield
straightforward answers requiring reversal. I see no reasonable way
to read the briefing on appeal as the majority does—to suggest that
the State waived its entire appeal by a single sentence in its reply
brief. And if we consider the legal merits of the case, we must
reverse, as the district court clearly erred in finding Debra Brown
factually innocent by clear and convincing evidence.
¶73 I can appreciate a sense of concern for the plight of
Ms. Brown. She served seventeen years for a murder that she may
not have committed. She has since been released from prison for
almost two years on a district judge’s determination that she was
factually innocent. And her case on appeal presents the gut-
wrenching question whether to uphold her release or reinstate a
conviction that could result in her return to prison.

70
Supra ¶ 60.
71
See, e.g., Anderson, 470 U.S. at 574 (“The trial judge’s major role
is the determination of fact, and with experience in fulfilling that role
comes expertise.”).
72
Levin, 2006 UT 50, ¶ 20; see also Anderson, 470 U.S. at 580–81
(recognizing the limited role of appellate courts when reviewing
factual findings under a clear error standard).

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 BROWN v. STATE
JUSTICE LEE, dissenting

¶74 I acknowledge some degree of doubt as to Debra Brown’s
guilt, and some hesitation regarding the prudence of a decision that
could result in her return to prison. But the law yields no relevance
to my human sympathy for Ms. Brown or my personal doubts about
her guilt, much less for any free-ranging evaluation on my part of
the prudence of her incarceration status.73 We are tasked under the
law to consider a much narrower question—whether the district
court erred in finding her “factually innocent” under the governing
statute. And that question, for me, has a straightforward answer.
¶75 I find clear error in the district court’s determination that
Ms. Brown established her factual innocence by “clear and
convincing” proof of an alibi. As far as alibis go, this is the weakest
I have heard of. Ms. Brown’s whereabouts are established only by
her own self-interested testimony and by that of her son and
boyfriend. And even accepting Ms. Brown’s evidence and
disregarding the State’s contrary proof, Ms. Brown has not
established an alibi in the sense of an indication that she could not
have been at the scene of the crime at the time it was committed;

73
It bears emphasizing that the decision before us is not whether
to return Ms. Brown to prison; it is only whether to reverse a decision
vacating her conviction. And upon such reversal, another body of
government would still retain the discretionary authority to override
any effect of reinstating Ms. Brown’s conviction—to pardon
Ms. Brown or commute her sentence to time served. Under our law,
the Board of Pardons would retain that discretion. See UTAH CODE
§ 77-27-5(1)(a) (“The Board of Pardons and Parole shall determine by
majority decision when and under what conditions, subject to this
chapter and other laws of the state, persons committed to serve
sentences in . . . all felony cases except treason or impeachment . . .
may be released upon parole, pardoned, ordered to pay restitution,
or have their fines, forfeitures, or restitution remitted, or their
sentences commuted or terminated.”).
If the court were to follow the law as I see it and reinstate
Ms. Brown’s conviction, there is no guarantee she would be returned
to prison. It is also possible that she would be pardoned or that her
sentence would be commuted. Whatever the likelihood of that
eventuality, we must not confuse our authority with that of the
Board of Pardons. That entity is charged by law to consider “when
and under what conditions” individuals convicted of felonies “may
be released upon parole, pardoned . . . or [have] their sentences
commuted or terminated,” id.; this court must simply follow the law.

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JUSTICE LEE, dissenting

quite the contrary, Ms. Brown’s own evidence places her at the scene
of the crime (Lael Brown’s house) at the time she claims it was committed
(Saturday afternoon). This is the opposite of an alibi. Ms. Brown did
not establish her innocence based on the fact that she was “in a
location other than the scene of the crime at the relevant time,”
BLACK’S LAW DICTIONARY 84 (9th ed. 2009) (defining “alibi”); she
demonstrated the opposite—that she was present at the scene of the
crime at the time of the murder.
¶76 Granted, Ms. Brown denied that she committed the murder
and insisted that she was visiting Mr. Brown to deliver him chicken
soup. But that is not an alibi; nor is it the kind of demonstration
(much less a “clear and convincing” one) required by statute—that
Ms. Brown “did not engage in the conduct” for which she was
convicted. Instead of an alibi, Ms. Brown’s case was an attempt at a
do-over on the trial in which she was convicted. That is not the basis
for a factual innocence determination under our law. We cannot
affirm that decision without distorting the law of factual innocence.
¶77 The majority seems to acknowledge as much in
“recogniz[ing] the existence of evidence . . . that calls into question
the post-conviction court’s factual findings,” supra ¶ 63, and in
resolving the case instead on the basis of a supposed concession in
the State’s brief. I dissent on that point too. I see no reasonable way
to read the State’s briefs to concede away the whole case through an
isolated statement in its reply brief. In context, the State’s indication
that it was not challenging post-conviction court’s “factual” findings
is a narrow concession. If we read that concession fairly in context,
it would not encompass the two critical determinations identified by
the court—that (a) Lael Brown was alive Saturday afternoon on
November 6, 1993, and (b) Ms. Brown’s whereabouts from Saturday
afternoon on November 6 to the early morning hours of Sunday,
November 7 were firmly established. In fact, the State contested both
points at length throughout its briefs, and clarified at oral argument
that it was not conceding them (a point acknowledged even by
counsel for Ms. Brown). In any event, at a minimum it is clear that
the State at least challenged the probity of Ms. Brown’s alibi (even
assuming a concession as to her whereabouts and the time of Lael
Brown’s death).
¶78 A fair reading of the briefing thus seems to me to keep the
key issues properly in play, and accordingly to require us to address
the merits of the case. I would reach the merits, and I would reverse.

31
 BROWN v. STATE
JUSTICE LEE, dissenting

I
¶79 Unlike the majority, I do not read the State’s demurrer of
any challenge to the “post-conviction court’s factual findings” as an
effective waiver of its entire case. First, it seems to me that the
referenced “factual findings” do not encompass the questions of
whether Lael Brown was alive on Saturday afternoon or whether
Debra Brown established her whereabouts through Sunday
morning. Rather, in light of the context of the overall briefing in this
case, of the paragraph in which the concession appears in the reply
brief, and of the parties’ statements at oral argument, it strikes me
as clear that the State was not conceding these determinations
(which the State consistently, if a bit oddly, referred to as “hybrid”
findings and not “pure factual” findings)—and indeed was
contesting them hotly. Thus, in this context, I would read the State’s
briefing as conceding only what it denominated “pure” findings of
fact—those not implicating any reweighing of evidence presented
at the original trial.
¶80 Second, even assuming acceptance of the time of Lael
Brown’s death and of Debra Brown’s accounts of her own
whereabouts, there is no doubt that the State has not conceded the
key question in the case on the merits—which is whether Ms. Brown
carried her burden of proving her factual innocence by clear and
convincing evidence. At a bare minimum, the State has clearly
challenged the viability of Ms. Brown’s alibi. Thus, even accepting
that Mr. Brown was alive on Saturday afternoon and that Ms. Brown
accounted for her whereabouts until Sunday morning, the State has
contended that Ms. Brown still has no clear and convincing
alibi—because, after all, she placed herself at the scene of the crime
at a time when the murder may have happened.
A
¶81 Any suggestion that the State was not contesting the timing
of Lael Brown’s death or Debra Brown’s account of her whereabouts
is impossible to square with the overall substance of the State’s
briefing, with the specific context of the State’s concession in its
reply brief, and with both parties’ statements at oral argument on
appeal. The contrary grounds articulated by the majority, moreover,
are unpersuasive.
1
¶82 The State’s challenges to the determination that Lael Brown
was alive on Saturday afternoon were extensive. In its opening brief,
the State argued that even though Hall’s testimony indicated he had

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JUSTICE LEE, dissenting

seen Lael Brown alive on Saturday afternoon, there was substantial
evidence to the contrary, such that a “juror could reasonably
conclude that Hall was mistaken about seeing Lael Brown on that
afternoon of Saturday, 6 November 1993.” [State’s Brief, 48–49.]
¶83 The State enumerated extensive grounds supporting this
conclusion. Those grounds included the following: (1) “[n]one of the
waitresses who worked at Angie’s on that Saturday recalled seeing
Lael that day” even though “Lael was not just a regular customer”
and “visited Angie’s like clockwork”; (2) “Lael did not answer
numerous phone calls from his granddaughter and Clara on
Saturday, even though Clara routinely called on Saturday
mornings”; (3) “Lael’s truck was in his driveway from at least 10
a.m. to 4:30 p.m.”; (4) “Lael never returned on Saturday to complete
the plumbing repairs [he had started the night before], despite his
promise to do so”; (5) “[t]he man that Hall allegedly saw with Lael
has never come forward to confirm that he was with Lael on that
Saturday afternoon”; (6) “Lael’s neighbor . . . was outside during
that time and never saw Lael come or go or follow his usual practice
of puttering around his yard”; and (7) “Lael never picked up the
soup that [Ms. Brown] said she left on his porch around 2 p.m.” even
though he would have had to “step over the soup at least
once—when returning from Angie’s.”[State’s Brief, 48–49; see also
30–31, 35–36.] The State’s brief noted that the “post-conviction court
dismissed the above evidence in a footnote by positing that ‘other
plausible explanations, including that Lael was simply not feeling
well, could also easily account for these facts,’” but explained that
such a “theory . . . does not explain why he nevertheless felt well
enough to go to Angie’s in the earlier afternoon.” Thus, the State
argued, even if the “post-conviction court’s conclusion [was] a
reasonable [one], it [was] not the only reasonable conclusion to be
drawn from the evidence.” [State’s Brief, 49.]
¶84 The State’s challenges to Ms. Brown’s whereabouts were also
extensive. In several places in its opening brief, the State identified
numerous grounds challenging Ms. Brown’s evidence, [State’s Brief,
30–31, 35–36, 53–54] such as its argument that “two independent
witnesses contradicted [Ms. Brown’s] account that she was at her
son’s basketball game from 10:45 a.m. to 12:15 p.m.” [State’s Brief,
53.] The State’s opening brief summarized: “The evidence thus still
supports a reasonable conclusion that [Ms. Brown] had the
opportunity to murder Lael, notwithstanding [Delwin] Hall’s . . .
testimony.” [State’s Brief, 52–54.]

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 BROWN v. STATE
JUSTICE LEE, dissenting

¶85 Elsewhere, the State notes that even if Hall’s testimony is
accepted at face value, “it still does not demonstrate [Ms. Brown’s]
factual innocence” because “[g]iven the substantial evidence that
incriminated [her] a reasonable juror could still find that she
murdered Lael sometime after Hall allegedly saw him.” [State’s
Brief, 52.] Thus, the State explained, “[a] reasonable juror could . . .
disagree with the post-conviction court’s conclusion ‘that [Ms.
Brown’s] whereabouts from Saturday afternoon on November 6th
to the early morning hours of Sunday, November 7th have been
firmly established.’” [State’s Brief, 52–54.]
¶86 In light of the foregoing, the State went on to summarize
additional evidence that might cause a juror to doubt the post-
conviction court’s conclusion. The State noted, for example, that it
was Ms. Brown’s boyfriend and son who “corroborated parts of
[her] account of her whereabouts,” and that because both had close
relationships to Ms. Brown “both had a motive to lie for her.”
[State’s Brief, 53.] Moreover, the State indicated that it is significant
that “Buttars [Ms. Brown’s son]—who perjured himself at
trial—provided the only corroboration of her claim that she arrived
home shortly after midnight on Sunday morning,” [State’s Reply
Brief, 1], because “[a]ccording to the medical examiner, [Ms. Brown]
could have killed Lael anytime before 3 a.m. Sunday morning,” such
that “even if she did not murder Lael early Saturday morning, a
reasonable juror could still find that she murdered him late Saturday
night or early Sunday morning.” [State’s Brief, 52–54.]
¶87 The above leaves no question that the State was
challenging—and not conceding—the two “critical” factual
determinations identified by the court, supra ¶ 55, and of course the
ultimate determination of Ms. Brown’s factual innocence. Yet
instead of crediting the substance of the State’s arguments, the
majority deems them waived by a single sentence in the State’s reply
brief—the one indicating that the State was not challenging the
district court’s “factual” determinations. The court’s inference is
more than a stretch. In the face of extensive factual arguments in the
State’s briefing, we should be loath to conclude that the State
abandoned the essence of its case in one sentence of its reply brief.
2
¶88 The majority acknowledges an “inconsisten[cy]” between
the State’s “concession” that it contests no factual issues and its
arguments “attack[ing] the underlying evidence on which the court
relied in making these factual findings.” Supra ¶¶ 62–63. Any
apparent inconsistency, however, disappears upon consideration of

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JUSTICE LEE, dissenting

the broader context of the briefing on appeal. That context reveals
that the State was not at all conceding the “key” determinations
discussed by the majority (which the State denominated as “hybrid”
determinations), but was instead just waiving any objection to the
district court’s evaluation of issues such as witness credibility (which
the State referred to as “pure” factual findings).
¶89 The concession in question appears in a section of the reply
brief in which the State is addressing the applicable standard of
review. In acknowledging that “clear error” is the standard that
applies to factual determinations, the State sought to distinguish
“pure” and “hybrid” questions of fact, insisting that the “clear error”
standard “applies only when a court reviews purely factual
questions.” [State’s Reply Brief, 15–16 (emphasis added).] Because
the State’s briefing does not challenge any factual findings
denominated by the State as “pure” (such as credibility of witnesses
at the factual innocence hearing), it was thus able to insist that the
clear error standard was inapplicable. And that was the precise
context of the concession given such a broad reading by the
majority. In the sentence immediately following the distinction
between “pure” and “hybrid” questions of fact, the State indicates
that “[t]he clear error standard does not apply in this case because the
State is not challenging any of the post-conviction court’s factual
findings.” [State’s Reply Brief, 16.]
¶90 In context, it is impossible to read this sentence fairly to
encompass the “key” determinations of the timing of Mr. Brown’s
death and the whereabouts of Ms. Brown. The distinction that
preceded it had just clarified that the State’s case on appeal was all
about so-called “hybrid” questions (those implicating reweighing of
evidence presented at the initial trial, such as the timing of
Mr. Brown’s death and the whereabouts of Ms. Brown) and not at
all about “pure” questions (those not implicating reweighing of
evidence presented at trial).
¶91 The headings and content of the reply brief confirm this
reading. While the concession appears in a section captioned
“Applicable standard of review,” [State’s Reply Brief, 15–18], the
brief includes a separate section challenging the “key”
determinations supposedly conceded by the State in a section
captioned “Evidence at the reopened hearing.” [State’s Reply Brief,
18–22.] And the content of this subsection makes clear that the
State’s earlier “concession” does not cover these two determinations.
¶92 In discussing the conclusion that Lael was alive on Saturday
afternoon, the State’s reply brief notes that the “post-conviction

35
 BROWN v. STATE
JUSTICE LEE, dissenting

court’s determination” on that score “hinged entirely on Del Hall’s
testimony,” while asserting that “Hall’s testimony did not clearly
and convincingly establish [Ms. Brown’s] factual innocence, because
substantial evidence, detailed in the State’s Opening Brief,
contradicted Hall’s assertion that he saw Lael at Angie’s on Saturday
afternoon,” such that ”a reasonable juror could have easily found
that Hall was mistaken about seeing Lael at Angie’s.” [State’s Reply
Brief, 19.] Similarly, in addressing the argument that Ms. Brown’s
whereabouts had been adequately established, the State notes that
“the only evidence of her whereabouts came from herself, her
boyfriend—Brent Skabelund, and her son—Ryan Buttars. Both
Skabelund and Buttars had a motive to lie for [her]. Indeed Buttars
perjured himself for [Ms. Brown] by falsely testifying at trial that he
saw Lael write a $1000 check to [her] that [she] now admits she
forged.” [State’s Reply Brief, 20.]
¶93 Thus, the context of the “concession” forecloses the broad
reading that the majority gives it. The State was not at all rescinding
the essence of its case; it was simply positing a difference between
the issues it was pressing (“hybrid”) and those it was not (“pure”
questions of fact).
3
¶94 Any doubt on this score was completely resolved at oral
argument in this court. There, in response to the court’s questions
about the scope of the State’s concession, counsel explained that the
State meant only to waive any challenge to the district court’s
“pure” factual determinations—which it viewed as encompassing
only those determinations made by the trial court based solely on
evidence it heard directly. Oral Argument, September 4, 2012, at
5:46–6:44, 13:28–13:51. As the State explained, such findings would
include a determination that a particular witness (e.g., Del Hall) was
credible. Oral Argument, September 4, 2012 at 7:59–8:17.
¶95 The State proceeded to clarify that it was, of course,
challenging “hybrid” factual determinations, which in its view
depended on re-weighing of evidence presented in the prior trial.
Oral Argument, September 4, 2012, at 6:20–6:42, 6:57–7:06;
14:25–14:30, 15:49–16:15. In this case, hybrid findings were expressly
explained to include the district court’s determinations that (1) Lael
Brown was alive Saturday afternoon and (2) Ms. Brown had firmly
established her whereabouts for all periods during which the
murder might have occurred. Oral Argument, September 4, 2012, at
5:46–6:42, 7:31–7:58, 13:28–13:52, 14:25–14:33.

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JUSTICE LEE, dissenting

¶96 Upon direct questioning, the State’s counsel emphasized that
the State was challenging these findings. When asked whether the
State was “challenging those [two] subsidiary determinations by the
district court,” counsel replied that “[w]e are saying they are
incorrect and are not pure factual findings.” Oral Argument,
September 4, 2012 at 7:07–7:40; see also id. at 13:28–13:51 (reaffirming
that the State was challenging these findings).
¶97 Counsel for Ms. Brown indicated the same understanding.
When asked specifically whether the State was conceding the
“determination with respect to whether Lael Brown was alive
during the afternoon,” Ms. Brown’s counsel candidly indicated that
“they are not conceding that point at all. I think they are challenging
that factual determination by the district court.” Oral Argument,
September 4, 2012, at 21:56–23:10. Similarly, when asked whether he
believed the State had conceded the determination that Ms. Brown
had adequately accounted for her whereabouts, her counsel said
“they don’t concede that.” Oral Argument, September 4, 2012, at
21:56–23:10.
¶98 Thus, the context of the State’s briefing made its reply brief
concession clear to both sides. Everyone understood that in context,
the State intended only to waive objection to what it characterized
as “pure” findings of fact. Everyone understood that the matters
argued at length in the State’s brief—regarding the timing of
Mr. Brown’s death and the whereabouts of Ms. Brown up until
then—were matters pressed on appeal to this court.
¶99 This holds regardless of the viability of the State’s distinction
between “hybrid” and “pure” factual findings. I agree with the
majority’s rejection of that distinction. Empirical questions are
questions of fact, see Manzanares v. Byington (In re Adoption of Baby
B.), 2012 UT 35, ¶ 40, __ P.3d __, and all such questions are subject
to review for clear error. I see no room in our law, in other words,
for any distinction between “hybrid” and “pure” questions of fact.74

74
That is not to say that the distinction is without logical
foundation. One of the rationales for granting deference to factual
determinations—that the court has a “comparative advantage in its
firsthand access to factual evidence,” see Manzanares v. Byington (In re
Adoption of Baby B.), 2012 UT 35, ¶ 40, __ P.3d__ —is not implicated
in a case where the court is making its findings, in part, based on a
cold record from a prior proceeding. Oral Argument, September 4,
(continued...)

37
 BROWN v. STATE
JUSTICE LEE, dissenting

But the question before us is not whether to accept the State’s
proposed distinction. It is how to construe the concession in its reply
brief—the sentence indicating that it was not “challenging any of the
post-conviction court’s factual findings.” And in light of the State’s
proposed distinction—as set forth in the briefs, and as understood
by both sides at oral argument—there is no question as to what the
State meant when it waived any challenge to the lower court’s
findings of fact. It used that term in a narrow, limited sense—a sense
that avoids the “inconsistency” acknowledged by the court and that
avoids the puzzling inference of an intent by the State to stipulate
away the entirety of its case on appeal.
4
¶100 Notwithstanding the above, the majority still deems the
State to have forfeited any effective challenge to the district court’s
factual innocence determination. It roots that conclusion in part in
“the way in which the State has briefed its case” on
appeal—specifically, in its purported failure to “marshal the
evidence” supporting the district court’s findings and in not
pressing its challenge to the district court’s decision in terms of a
“clear error analysis.” Supra ¶ 66. I read the State’s briefing
differently. I think the State has effectively marshaled the contrary
evidence in the record. And although the State has not employed the
terminology of “clear error,” it seems to me that the substance of its
argument effectively challenges the district court’s decision on that
basis. In any event, in my view any rhetorical deficiency in the
briefing is understandable and ought to be overlooked in light of the
complex, first-impression nature of the issues presented for our
review.
(a)
¶101 We should not fault the State for a failure to marshal
because Ms. Brown never asked us to do so, and the State

(...continued)
2012, at 15:49–16:15. But in my view the State’s proposed distinction
still fails under our relevant case law, which suggests an additional
rationale for reviewing factual determinations deferentially—that
“there is no particular benefit in establishing settled appellate
precedent” on case-specific factual questions. See In re Adoption of
Baby B., 2012 UT 35, ¶ 40. This second rationale is equally applicable
to both “pure” and “hybrid” factual determinations, and thus
forecloses the State’s proposed distinction.

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JUSTICE LEE, dissenting

accordingly has had no opportunity to explain itself. Absent such
explanation, we are in no position to assess the degree to which the
State has carried any burden to marshal. Indeed, a sua sponte
marshaling dismissal would turn the rationale for the marshaling
rule on its head, as an independent assessment of a party’s
compliance with the rule would require exactly what the rule is
designed to prevent—an investment of the court’s time in digging
through the record. See Chen v. Stewart, 2004 UT 82, ¶ 79, 100 P.3d
1177 (citing judicial economy considerations in support of the
marshaling rule).
¶102 Having done just that, I would conclude that the State’s
briefs are sufficient. They appear to me to effectively comply with
our marshaling rule by presenting substantial discussion and
meaningful analysis of the evidence supporting each of the findings
at issue on appeal.
(I)
¶103 In disputing that Lael was alive on Saturday afternoon, see
supra ¶¶ 82–83, the State’s opening brief extensively discusses the
evidence supporting the trial court’s determination that he was. This
includes discussion and explanation of the following evidence:
(1) the “medical examiner testified that the physical findings ‘were
most consistent or most typical of a time of death around 9 p.m. on
Saturday” and that “Lael likely died around 9:15 p.m. on Saturday,
6 November 1993, and no later than 3 a.m. on Sunday, 7 November”;
[State’s Brief, 20.] (2) Standridge, Lael Brown’s neighbor, was
painting outside her home “between 10 a.m. and 4:30 p.m. that
Saturday” and “did not hear any gunshots” even though she “could
hear Lael’s phone ringing”; [State’s Brief, 7.] (3) another neighbor,
Paulette Nyman, now believed “she heard the shots on the same day
that she saw police activity at Lael’s home, which would have been
Sunday”; [State’s Brief, 21.] (4) the police had received tips from two
people—Delwin Hall and an unnamed secretary at Cache Valley
insurance—who said they saw Lael on Saturday afternoon, and the
police may have disregarded these tips; [State’s Brief, 19, 25.] (5) an
officer had testified at the evidentiary hearing that he “vaguely
recalled one of Lael’s neighbors telling him that she heard shots on
Saturday night”; [State’s Brief, 21.] (6) “[a] few days after the
murder, Hall told police . . . he had seen Lael having coffee at
Angie’s on Saturday” and gave a written statement to a police
officer stating that he was a “friend/coffee drinking buddy of
Lael’s” and that he saw Lael “Saturday, 11-6-93 at approx. 1430
hours in Angie[‘]s,” a time he was “sure of . . . because he was

39
 BROWN v. STATE
JUSTICE LEE, dissenting

stopping at Angie’s before going to work at Albertsons at 1500
hours”; [State’s Brief, 25–27.] (7) Ms. Brown’s counsel “called Delwin
Hall to testify about his tip to police” at the PCRA hearing and he
continued to maintain—at the PCRA hearing—that “at the time [he]
was quite sure that it was on a Saturday that [he] saw him”;75 [State’s
Brief, 25–27.] (8) Delwin Hall did not know and had never spoken to
Ms. Brown; [State’s Brief, 25–27.] (9) Terry Carlsen, who knew Lael
and said he was Lael’s “good friend[]” testified he was “certain”
“that on Saturday he saw Lael and Mike Brown [Lael’s son] at
Angie’s around 7:15 p.m.,” where they stayed for a “half hour and
left around 7:45 p.m.” and that “Carlsen said he learned of Lael’s
death on Sunday and was surprised to think that he had just seen
Lael the night before”; [State’s Brief, 27.] (10) even though Mike
Brown, Lael’s son, testified he was not with his father at any time on
Saturday, “he had memory problems during 1993-1994 from
alcoholism”; [State’s Brief, 27–28.] (11) one waitress, Holly Crockett,
who had worked from 3 to 11 p.m. on Saturday, November 6
testified that “she thought she saw Lael on Saturday night”; (12)
none of the statements given by Angie’s waitresses—indicating that
they had not seen Lael on Saturday—were inconsistent with Hall’s
testimony; [State’s Brief, 31–32.] and (13) Lael Brown may have not

75
The State notes that “[t]he court’s ruling hinged on Hall’s
testimony” and that “the significance of the evidence provided by
Hall cannot be overstated” because it provided “direct evidence that
Lael was alive Saturday afternoon” in contrast to the “circumstantial
evidence at trial that Lael was killed Saturday morning.”[State’s
Brief, 30.] The State also asserts:
The court found that Hall was credible and “not
mistaken when he stated that he saw Lael at Angie’s
Restaurant during the early afternoon hours on
Saturday, November 6th.” The court noted that Hall
gave his statement to Detective Ridler less than four
days after Hall saw Lael at Angie’s and “there were no
intervening weekends to cause confusion.” The court
also found it significant that Hall told Detective Ridler
he saw Lael on “Friday night as well as Saturday
afternoon.” The court noted that Hall had “a high
degree of certainty” about his testimony and no
evidence suggested that Hall was easily confused about
dates or had short-term memory problems.
[State’s Brief, 30.]

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JUSTICE LEE, dissenting

been feeling well on Saturday, leading him to “not have kept his
morning coffee ritual, answered his ex-wife’s and granddaughter’s
telephone calls, worked in his yard, driven his truck, kept his
promised appointment to complete the plumbing repairs, or picked
up [Ms. Brown’s] soup from the porch.” [State’s Brief, 32.]
(ii)
¶104 Similarly, in arguing that Ms. Brown could not adequately
account for her whereabouts during all times when the murder
might have occurred, supra ¶¶ 84–86, the State presented substantial
discussion and explanation of evidence that supported the trial
court’s determination that she could. This included the following
evidence: (1) Ms. Brown had explained her whereabouts for all time
periods during which the murder might have occurred;76 [State’s

76
Moreover, the State’s brief actually provides [Ms. Brown’s]
account of her whereabouts during all relevant times. This substantial
discussion notes:
At the evidentiary hearing, [Ms. Brown] testified that on
Saturday morning, she left Skabelund’s home around 6
or 7 a.m., went home, bathed, and then went to the store
to buy ingredients to make soup for Lael and her
daughter, who was also sick. She testified that her son
Ryan Buttars saw her sometime that morning. Ryan
testified at trial that he could not remember when he
awoke Saturday morning, but ‘it was kind of late’ and
his mother was there when he awoke. Consistent with
the trial evidence, [Ms. Brown] said that Clara Brown
called her around 9:55 a.m. on Saturday morning after
she could not reach Lael by phone. They talked for about
twenty-seven minutes. Clara asked [Ms. Brown] to check
on Lael and call her back if he was sick. Skabelund
arrived at [Ms. Brown’s] home while she was talking to
Clara. [Ms. Brown] testified that she and Skabelund left
around 10:40 or 10:45 a.m. to attend her son’s basketball
game. [She] and Skabelund testified that they stayed for
the whole game. [She] did not say when the game
ended, but Skabelund testified at trial that they left the
game at 12:15 p.m. . . . [Ms. Brown] said that after the
game, she and Skabelund had lunch at a drive-in and
Skabelund took her home where she slept for a while.
(continued...)

41
 BROWN v. STATE
JUSTICE LEE, dissenting

Brief, 21–23.] (2) Standridge, Lael’s neighbor, was painting outside
her home “between 10 a.m. and 4:30 p.m. that Saturday” but never
heard any gunshots, even though she heard Lael’s phone ringing
several times during that period; [State’s Brief, 7.] (3) Paulette
Nyman, another neighbor, who had originally told police that she
heard shots on Saturday, said she may have actually heard the shots
on Sunday morning; [State’s Brief, 5.] (4) Ms. Brown had taken and
passed a polygraph in which she was asked whether she had killed
Lael; [State’s Brief, 20.] (5) Ms. Brown “presented police tip sheets in
which people near Lael’s home reported hearing gunshots at times
other than around 7 a.m. on Saturday, November 6th”; [State’s Brief,
21.] (6) in a direct appeal from her conviction, this court stated that
Ms. Brown “could account for her whereabouts for the entire
weekend except for early Saturday morning; [State’s Brief, 32–33.]
(7) the trial court believed that “no evidence was presented to
suggest that [Ms. Brown’s] account of [her] whereabouts [was]
inaccurate” and although she may have been alone at times “no
evidence [was] ever . . . presented establishing that Lael was killed
during the time period she was by herself”; [State’s Brief, 33.] and
(8) Ms. Brown had testified she returned to Lael’s house on Sunday,

(...continued)
She said she delivered the soup to Lael, and possibly her
daughter, between 2 and 3 p.m. [Ms. Brown] claimed
that although Lael’s truck was there, he did not answer
when she knocked. [She] said she wrote Lael a note
which she left with the soup on his porch. She said she
did not use her key to take the soup in because she
thought that Lael might be sleeping. She also said she
wanted to avoid talking with Lael because he could talk
for a long time. She did not check on Lael, even though
she had told Clara that she would. Rather, [Ms. Brown]
returned home. Around 4:30 p.m., [Ms. Brown] and
Skabelund went grocery shopping, then had dinner at
[Ms. Brown’s], and later watched a movie at
Skabelund’s. [Ms. Brown] testified that she left
Skabelund around 10 or 11 p.m. and went back to her
house where she slept. She believed that her sons were
still awake when she arrived home. At trial, Skabelund
testified that [Ms. Brown] left his home around midnight
Saturday night. Her son Ryan testified at trial that she
returned home ‘after midnight’ on Sunday, November
7.

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JUSTICE LEE, dissenting

found the chicken soup on the porch in the “identical” spot and,
upon discovering that Lael was cold, “ran from the house yelling for
help” before “return[ing] to the house and call[ing] 911.”[State’s
Brief, 9.]
(b)
¶105 The majority’s objection to the above is its conclusion that
it is merely a “list” of “evidence relied on by the post-conviction
court” that does not “assume the role of devil’s advocate.” Supra
¶ 66. Because the latter role is one the court deems essential, it finds
the State’s briefing “consistent” with the inference that it is “not
challenging the court’s factual findings.” Supra ¶ 66.
¶106 Both the premise and the ensuing inference strike me as
problematic. As for the premise (that marshaling requires devil’s
advocacy), I see nothing in our rule that requires a lawyer to
abandon his usual role of zealous advocacy. See UTAH R. PROF’L
CONDUCT 1.3, cmt. [1]. And I confess that I have no idea what the
notion of devil’s advocacy entails in practice. We have sometimes
said that it requires counsel to “temporarily remove [their] own
prejudices and fully embrace the adversary’s position,” Chen, 2004
UT 82, ¶ 78 (internal quotation marks omitted), but I see no way to
apply that standard in a predictable, judicially-manageable way.
Given that it finds no basis in our rule, and in light of the significant
consequences at stake (dismissal without reaching the merits), I
would abandon this principle. It is a trap for the unwary, and a tool
for arbitrary judicial decision making.77

77
In an appropriate case, we should revisit and clarify our doctrine
of marshaling. Our case law in this field is marked by vagaries and
contradictions. We sometimes treat failures to marshal as decisive of
an appeal, see, e.g., United Park City Mines Co. v. Stichting Mayflower
Mountain Fonds, 2006 UT 35, ¶¶ 38, 41, 140 P.3d 1200, and other times
overlook such failures and proceed to the merits, see, e.g., State v.
Green, 2005 UT 9, ¶¶ 12–13, 108 P.3d 710. Conspicuously missing
from our cases is any principled explanation for this all-important
distinction. Instead of announcing any such basis, we have expressly
declined to impose any limits on our ability to invoke marshaling as
a basis for default on appeal, citing our purportedly limitless
discretion. See Martinez v. Media-Paymaster Plus/Church of Jesus Christ
of Latter-Day Saints, 2007 UT 42, ¶¶ 19–20, 164 P.3d 384 (noting that
parties risk forfeiting their challenges to factual questions when they
fail to marshal but sustaining the court of appeals’ choice to resolve
(continued...)

43
 BROWN v. STATE
JUSTICE LEE, dissenting

¶107 I would likewise reject the inference the majority draws
from the State’s briefing. Under the circumstances, I see no basis for
treating the State’s failure to play “devil’s advocate” as an indication
of an intent to waive the crux of its case on appeal. Instead, I would
attribute it to the State’s attempt to distinguish “pure” and “hybrid”
facts. Under rule 24(a)(9) of the Utah Rules of Appellate Procedure,
marshaling of “record evidence that supports [a] challenged
finding” is required only where a party is challenging a “fact
finding.”78 And because the State believed that there was a legally-
significant distinction between “pure” and “hybrid” factual
determinations, it seems to have read this marshaling requirement
as applying only to “pure” findings of fact made by the judge in the
first instance, not “hybrid” determinations based in part on review
of a cold paper record from a prior case.79 That would explain why
it expressly announced that it was “recit[ing] all the evidence
produced at the factual innocence hearing that both supports and

(...continued)
the case on its merits because “[t]he reviewing court . . . retains
discretion to consider independently the whole record and determine
if the decision below has adequate factual support”).
Under our cases as they now stand, a wary litigant would be left
to discern only one real principle in our marshaling cases: We impose
the sanction of default when we want to and reach the merits when
we don’t. Such unbridled discretion is incompatible with the judicial
function. We cannot be said to be deciding cases under the rule of
law where our gate keeping for appellate decision making is so
haphazardly marked.
78
See , e.g., Gilbert v. Utah Down Syndrome Found., Inc. (In re
Discipline of Gilbert), 2012 UT 81, ¶ 14 n.3, 301 P.3d 979 (“[B]ecause the
Foundation does not challenge any of the district court’s factual
findings, it had no marshaling obligation.”); Rapela v. Green, 2012 UT
57, ¶ 12 n.2, 289 P.3d 428 (explaining that marshaling requirement
only applies where “fact[ual] finding[s]” are challenged (internal
quotation marks omitted)).
79
See In re Discipline of Sonnereich, 2004 UT 3, ¶ 45 n.14, 86 P.3d 712
(concluding that failing to marshal was not “dispositive” of an appeal
because “the district court’s bad faith finding was based primarily on
memoranda submitted by the parties”).
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JUSTICE LEE, dissenting

undercuts [Ms. Brown’s] claims.”80 [State’s Brief, 13 n.7 (emphasis
added).]
(c)
¶108 Nor do I see a basis for any inference to be drawn from the
State’s failure to phrase its challenge to the district court’s findings
in terms of “clear error.” Supra ¶ 67 n.61. The State’s rhetorical tack
followed naturally from the proposed pure/hybrid distinction. It
deemed only the former subject to review for clear error, and thus
framed its challenges to what it viewed as “hybrid” determinations
in other terms. Again, I disagree with this distinction. But the point
is that it explains—and in my view excuses—any rhetorical flaw in
the State’s briefing.81

80
Moreover, to the extent this statement is an assertion that the
marshaling obligation extended only to evidence adduced at the
PCRA hearing and not the original trial, this belief may also stem in
part from the State’s contention that newly-discovered evidence must
be the pivotal, transformative evidence in demonstrating factual
innocence. After all, this type of evidence would necessarily come to
light at the hearing, not at the prior trial.
81
The majority ignores this distinction in asserting that I have
“characterize[d] the State’s approach in a way the State itself has
expressly rejected.” Supra ¶ 67 n.60. Once this distinction is
understood, it becomes clear that the State’s purported “concession”
in its reply brief does not encompass these findings—and thus that
my position is not in tension with the State’s briefing.
The majority’s contention that the State was responding to
Ms. Brown’s invocation of the clear error standard—and that she
subsequently applied this standard in analyzing the time of Lael
Brown’s death and Ms. Brown’s whereabouts, supra ¶ 67 n.60—does
not undermine this conclusion. The section of the State’s brief
captioned “Reply to Petitioner’s Point 2,” in which the purported
“concession” appears, makes four, distinct points. The first is that
“clear error is [not] the appropriate standard of review.” [State’s
Reply Brief, 15.] In making this point, the State expressly references
page 42 of Ms. Brown’s brief. This page of the brief, however, never
speaks about Lael’s time of death or Ms. Brown’s whereabouts on the
day of the crime. These issues are discussed later in the brief,
[Brown’s Brief, 43–48.] and, importantly, the State addresses these
portions of Ms. Brown’s brief in three subsequent sections of its reply
brief. [State’s Reply Brief, 18–22.] Thus, the statement in the State’s
(continued...)
45
 BROWN v. STATE
JUSTICE LEE, dissenting

¶109 As the majority indicates, the State’s challenges to the
district court’s findings are sometimes phrased in terms asserting
that the court’s decision was “not the only reasonable conclusion”
that could be drawn from the evidence. Supra ¶ 67 n.61 (internal
quotation marks and emphasis omitted). But I would not read that
formulation as a waiver of a challenge to the district court’s
findings—or even as incompatible with the applicable standard of
review. This is hardly the first time an appellant has filed a brief in
our court exhibiting confusion or even outright error as to the
applicable standard of review. Our typical response is the one we
should invoke here—to articulate the correct standard of review,
and then to proceed to assess the appellant’s position under that
standard.
¶110 In this case, moreover, the State’s confusion is
understandable in light of the inherent tension—and
interplay—between the strict standard of proof applicable at the
district court level (requiring proof of factual innocence by “clear
and convincing evidence”) and the lenient standard of review that
governs on appeal (calling for deference to the district court’s
determination absent a showing of “clear error”).82 Proof by clear

(...continued)
brief “that the clear error standard does not apply” was not a “direct
response to Ms. Brown’s application of the clear error standard in her
brief” to the “two key findings regarding Lael’s time of death and
Ms. Brown’s whereabouts.” Supra ¶ 67 n.60. Rather, it was a direct
response to Debra Brown’s choice to invoke this standard at all in the
case.
82
Other courts have observed this interplay and explained that “in
applying [a] standard of review, we necessarily incorporate an
understanding of the appropriate burden of proof in the district
court.” See Mondaca-Vega v. Holder, 2013 WL 1760795, at *8–11 (9th
Cir. April 25, 2013) (explaining this point in applying a “clear error”
standard of review to a district court’s factual finding where the
burden of proof was by “clear and convincing” evidence and
ultimately concluding that “the district court’s key finding, that
Petitioner is Salvador Mondaca-Vega, is not clearly erroneous under
the ‘clear and convincing’ standard of proof”); Marsellus v. C.I.R., 544
F.2d 883, 885 (5th Cir. 1977) (“The issue of fraud is a factual one.
Thus, we may reverse the Tax Court’s finding of fraud only if we find
that it was ‘clearly erroneous.’ At the same time, we must judge the
Tax Court’s findings in light of the government’s burden of proving
(continued...)
46
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JUSTICE LEE, dissenting

and convincing evidence is hard to come by. “[F]or a matter to be
clear and convincing to a particular mind it must at least have
reached the point where there remains no serious or substantial doubt
as to the correctness of the conclusion.” Sine v. Harper, 222 P.2d 571,
581–82 (Utah 1950) (emphasis added) (internal quotation marks
omitted). So it is understandable that the State’s briefing would seek
to invoke and apply this high standard of proof—which does
appropriately temper the otherwise high, clear error standard of
review—by repeatedly asserting that the district court’s
determinations were “not the only reasonable conclusion[s]” that
could be drawn from the evidence, supra ¶ 67 n.61 (internal
quotation marks and emphasis omitted).83 And in light of the
interrelationship between the standard of review and burden of
proof, it seems clear to me that these assertions should be viewed as
advancing the State’s argument that there is “serious or substantial
doubt as to the correctness” of the district court’s conclusions, and
thus that reversal is in order in light of Ms. Brown’s failure to carry
her burden of proving factual innocence by clear and convincing
evidence.84

(...continued)
section 6653(a) fraud by ‘clear and convincing’ evidence.” (citations
omitted)); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622, 627 (Tex.
2004) (“As a matter of logic, a finding that must be based on clear and
convincing evidence cannot be viewed on appeal the same as one
that may be sustained on a mere preponderance. . . . In sum, we think
that whenever the standard of proof at trial is elevated, the standard
of appellate review must likewise be elevated.” (internal quotation
marks omitted)).
83
The State made this point repeatedly in the argument section of
its briefing. [State’s Brief, 35–36, 49–50, 52.]
84
This point is made clear in the State’s “summary of the
argument,” where it explains: “[T]he court erred in concluding that
Petitioner’s evidence at the reopened hearing established her factual
innocence. . . . Substantial evidence contradicted . . . Petitioner’s
account of her whereabouts. Therefore, a reasonable juror hearing all
of the evidence could still find Petitioner guilty. Because Petitioner’s
evidence did not even present a reasonable juror from still finding
her guilty, that evidence necessarily failed to clearly and
convincingly demonstrate Petitioner’s factual innocence.” [State’s
Brief, 35–36.]
47
 BROWN v. STATE
JUSTICE LEE, dissenting

¶111 The State should also have framed this argument in terms
of the applicable standard of appellate review. It should have
asserted that there was “clear error” in not concluding that
Ms. Brown had failed to remove all “serious or substantial doubt”
as to her factual innocence.85 But the absence of that verbiage seems
quite inconsequential—certainly not enough to justify avoiding the
merits in a case of this consequence, particularly in a case
implicating complex questions of first impression.
(d)
¶112 These matters of first impression are manifold. They
include whether the factual innocence determination must rest
exclusively on entirely new evidence; whether so-called “hybrid”
questions are subject to a less deferential standard of review; and
how the “clear and convincing” standard of proof affects the
appellate standard of review.
¶113 In light of these questions, I would at least acknowledge
room for doubt about the propriety of the methodology of the
State’s case on appeal. And I would give the parties the benefit of
any doubt on the matter—in a manner preserving our ability to
reach the merits. On a first-impression question of this complexity,
we should tread lightly. We should not foreclose a review of the
merits on the basis of our disagreement with the terms or
methodology of the parties’ briefing. I would accordingly conclude
that the State effectively challenged the district court’s
determinations regarding the timing of Lael Brown’s death and
regarding Ms. Brown’s account of her whereabouts.
B
¶114 Even assuming, however, that the State had accepted these
determinations, there is still another sense in which the State’s
position on the merits is properly before us on appeal. At a
minimum, the State has challenged the viability of Ms. Brown’s alibi.

85
The State did invoke this standard in the “statement of the issues”
section of its brief. There, it asserted that the second issue on appeal
was whether “the post-conviction court erroneously concluded that
Petitioner had demonstrated her factual innocence by clear and
convincing evidence.” The State asserted it had “preserved this
issue . . . by arguing that Petitioner did not meet her burden,” and
explaining that “[a] post-conviction court’s legal conclusions are
reviewed for correctness and its factual findings for clear error.”
[State’s Brief, 2.]
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JUSTICE LEE, dissenting

It has done so by noting that even according to Ms. Brown’s own
evidence, she was at the scene of the crime at a time when the
murder may have been committed. In particular, the State argued
that Ms. Brown’s evidence did not “affirmatively show” what her
evidence was required to show—“that she did not kill Lael Brown
at any time”—because her evidence “still support[ed] a reasonable
conclusion that [she] had the opportunity to murder Lael.” [State’s
Brief, 52–53.] And as explained in greater detail in the merits
discussion below, that is enough to preserve the crucial issue before
us on appeal—and, in fact, to require reversal on the merits.
¶115 That conclusion is not at all undermined by the district
court’s “credibility findings.” Supra ¶ 69. The credibility of Debra
Brown’s account of her whereabouts can be accepted without
undermining the State’s case on appeal. Because Ms. Brown placed
herself at the scene of the crime, it matters not that her credibility
“would presumably qualify as [an] unchallenged ‘pure’ fact[].”86

86
It is, however, unclear that the State would agree with this
characterization. In the first place, the State erroneously believed that
it did not need to challenge Debra Brown’s credibility since it believed
Debra Brown’s post-conviction testimony could not be relied upon
in assessing her factual innocence since this testimony was not
“newly discovered evidence because it [was] always available to [her]
at trial.” [State’s Brief, 43.] The State’s briefing led with and expended
significant ink on this newly-discovered evidence point. Its counsel
also expended significant effort pressing the point at oral argument.
Moreover, the State’s briefing also attacked Debra Brown’s
credibility repeatedly. It argued that “[a] reasonable juror could . . .
disagree with the post-conviction court’s conclusion that Petitioner’s
whereabouts from Saturday afternoon on November 6th to the early
morning hours of Sunday November 7th, have been firmly
established” because “the evidence of Petitioner’s whereabouts
depends on her credibility, and a reasonable juror would have good
reason to doubt her credibility where she admitted to having stolen
from Lael and lied about it.” [State’s Brief, 52.] The State also argued
that the district court was incorrect in concluding that “’no evidence
was presented to suggest that [Petitioner’s] account of [her]
whereabouts is inaccurate” because “[t]he evidence at trial . . . did not
merely ‘suggest’ that Petitioner’s account of her whereabouts was
inaccurate; it demonstrated that her account was inaccurate,” such that
“a reasonable juror could still find Petitioner guilty because serious
credibility concerns surround Petitioner’s account of her
(continued...)
49
 BROWN v. STATE
JUSTICE LEE, dissenting

Supra ¶ 69. Her account of her whereabouts can be accepted as
credible—and perfectly accurate—as its timing does not at all rule
herself out as Lael Brown’s murderer.87
¶116 There is of course one aspect of Debra Brown’s testimony
that must be understood to be in question in order for us to reach
the merits of the case on appeal, and that is her ultimate denial of the
charge of killing Lael Brown. But surely even the majority does not
read the State’s briefs to concede her credibility on that point (since
acceptance of her denial would defeat any basis for an appeal). In
fact, the State’s briefing makes this point directly. Despite
recognizing that Debra Brown “testified that she did not murder
Lael Brown and that she did not know who did,” [State’s Brief, 24.]
the State nonetheless asserts that “[t]he Legislature could not have
intended that a petitioner could establish her factual innocence
merely by testifying that she is innocent.” [State’s Brief, 43.]88 So at

(...continued)
whereabouts.” [State’s Brief, 53 (emphasis in original).]
87
This point is underscored by the district court’s initial
determination—after hearing Debra Brown’s testimony—that she
had failed to prove her factual innocence by clear and convincing
evidence. The State’s brief highlighted this point as well: “As
explained, the court relied on the correct legal standard when it
discounted all of Petitioner’s evidence at the four-day evidentiary
hearing. In the court’s view, that evidence did not even meet the
lower ‘no reasonable juror could have convicted’ standard that
Petitioner advocated. Rather, the court concluded that ‘reasonable
jurors still could have differed on what the old and new facts
established and whether the prosecution could have proven its case
beyond a reasonable doubt.’ Because Petitioner’s evidence could not
even satisfy the PCRA’s lesser standard, the court correctly reasoned
that the evidence necessarily could not satisfy the factual innocence
statute’s higher standard.” [State’s Brief, 47.]
88
The State’s briefing also argues that “[g]iven the substantial
evidence that incriminated Petitioner, a reasonable juror could still
find that she murdered Lael sometime after Hall [a witness who
claimed he had seen Lael in the early afternoon on Saturday]
allegedly saw him.” [State’s Brief, 52.] Similarly, it explained that
“[s]ubstantial evidence contradicted . . . Petitioner’s accounts of her
whereabouts,” such that “a reasonable juror hearing all of the
evidence could still find Petitioner guilty.” [State’s Brief, 35–36.] And
(continued...)
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JUSTICE LEE, dissenting

least to that extent, even the majority must understand the State to
be challenging Debra Brown’s credibility. And on that question, we
cannot possibly conclude that she carried her burden of establishing
her factual innocence by clear and convincing evidence.
¶117 In asserting her factual innocence, Ms. Brown has insisted
that although she was at the scene of the crime at a time when the
murder could have been committed, she simply didn’t do it. If that
is clear and convincing proof of factual innocence, our courts will be
inundated with (presumptively meritorious) factual innocence
petitions. So, on the narrow point of “credibility” that is obviously
in question, the district court’s credibility determination should be
reversed as clearly erroneous.89

(...continued)
in discussing Petitioner’s account of her whereabouts—and the alibi
in particular—the State used terms such as “said” and “claimed,”
arguing that “she said she delivered the soup to Lael,” “claimed that
although Lael’s truck was there, he did not answer when she
knocked” and “said she did not use her key to take the soup in
because she thought Lael might be sleeping.” [State’s Brief, 23
(emphasis added).] The State also points out that the trial court
“acknowledged that Petitioner’s evidentiary testimony must be
viewed with some skepticism.” [State’s Brief, 23 (internal quotation
marks omitted).]
89
The majority concedes that “there is potentially some room to
doubt the court’s finding that Ms. Brown firmly established her
whereabouts, even accepting the court’s credibility findings.” Supra
¶ 69 n.69. But it argues that the clear and convincing evidentiary
standard tolerates such doubt. Supra ¶ 69 n.69.
As the majority notes, however, this evidentiary burden requires
evidence that makes a conclusion “very highly probable.” Supra ¶ 69
n.69 (internal quotation marks omitted). And I struggle to see how
Ms. Brown’s evidence does so, as it fails to establish an alibi—the
only reason that her whereabouts are even relevant. She put herself
at the scene of the crime during a time when that crime might have
been committed. And it accordingly does not matter that there is only
a narrow window of time during which she might have committed
the murder, that there is some contrary evidence suggesting that the
murder may have been committed during another time, or that the
State has not proved that the murder occurred while she was there.
Ms. Brown is the one who bore the burden of proof—of
demonstrating her factual innocence by clear and convincing
(continued...)
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JUSTICE LEE, dissenting

¶118 I would thus read the State’s briefs to properly preserve an
analysis of the merits of the district court’s factual innocence
determination even assuming acceptance by the State of the district
court’s findings regarding the timing of Lael Brown’s death and
regarding Debra Brown’s accounts of her whereabouts.
II
¶119 We should accordingly reach the merits of the State’s
challenge to the district court’s determination that Ms. Brown met
her burden of proving her factual innocence. I would do so under
the clear error standard of review, and would reverse.
¶120 As the majority notes, the determination of factual
innocence in this case was premised on two subsidiary factual
findings: (1) that “Lael Brown was alive Saturday afternoon,” and
(2) that “[Ms. Brown’s] whereabouts from Saturday afternoon on
November 6th to the early morning hours of Sunday, November 7th,
ha[d] been firmly established.” Supra ¶ 55 (first alteration in
original) (internal quotation marks omitted). And because those
questions are factual ones—given that they “entail[] the empirical,

(...continued)
evidence—at the factual innocence hearing. And because she put
herself at the scene of the crime during a time when the murder
might have been committed, she failed to do so.
Even assuming that the time of death was later in the day, as the
medical examiner testified it might have been, supra ¶ 24 (explaining
that the time of death was likely between 9:00 p.m. and 3:00 a.m.),
Ms. Brown’s “alibi” for portions of this later time period still
amounted to a mere denial of guilt. That, again, is no alibi. And it is
not clear and convincing proof of factual innocence. Ms. Brown
claimed she had fallen asleep at 8:00 or 8:30 p.m. at her boyfriend’s
home, slept until about midnight, and then drove herself home,
where she claimed to have remained for the rest of the night. Thus,
even assuming that Lael Brown was killed in the evening, Ms. Brown
was alone for an appreciable part of the time period during which the
murder might have occurred. And it was her son—who perjured
himself at trial—who provided the only corroboration that she
arrived home shortly after midnight. Thus, the fact that Ms. Brown
placed herself at the scene of the crime during a time when the
murder might have been committed is not the only deficiency in her
alibi. If the doubt afforded under the clear and convincing standard
allows an alibi as weak as Ms. Brown’s to stand as proof of factual
innocence, we have created a very low hurdle indeed.
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JUSTICE LEE, dissenting

such as things, events, actions, or conditions happening, existing, or
taking place”—they are reviewed for clear error. See Manzanares v.
Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 40, __ P.3d __
(alteration in original) (internal quotation marks omitted).
¶121 And in my view the State has easily carried its burden on
appeal. I would conclude that the trial court clearly erred in making
at least one, and perhaps both, of the subsidiary factual
determinations on which its finding of factual innocence rested.90
B
¶122 The first of these determinations—that Ms. Brown proved
by clear and convincing evidence that Lael Brown was alive at some
point on Saturday afternoon—is not incontrovertible. Supra
¶¶ 82–83. Despite some doubts, however, I see the propriety of that
finding to be a close issue. The propriety of the second
determination, however, is not such a close call. It is obvious that the
trial court clearly erred by determining that Ms. Brown had—by
clear and convincing evidence—conclusively established an alibi
during the relevant time period (the period during which the
murder could have occurred).
¶123 That relevant time period—according to the trial
court—was “10:00 a.m. on Saturday afternoon until Sunday morning
at 3:00 a.m.” The trial court noted that Ms. Brown had given the
following explanation of her whereabouts during the time:
At approximately 10:00 a.m. on Saturday,
[Ms. Brown’s] son Ryan Buttars saw his mother when
he awoke. Shortly thereafter, at approximately 10:20
a.m., Brent Skabelund, who was [Ms. Brown’s]
boyfriend at the time, arrived at her home to
accompany her to her son’s basketball game at
Skyview High School in Smithfield. They left for the
game at approximately 10:40 or 10:45 a.m. From 11:00
a.m. to 12:15 p.m., [Ms. Brown] and Skabelund
watched the basketball game. Following the game, she

90
Even the majority recognizes that these factual conclusions are
not unassailable. It notes “[w]e readily recognize the existence of
evidence in this case that calls into question the post-conviction
court’s factual findings. And we agree with the State that the court’s
ultimate determination of factual innocence is not the only reasonable
conclusion to be drawn from the evidence.” Supra ¶ 63 (internal
quotation marks omitted).
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 BROWN v. STATE
JUSTICE LEE, dissenting

and Skabelund stopped at R&G’s, a local drive-in, for
lunch. After lunch, Skabelund took her to her house
where she took a nap. Between 2:00 and 3:00 p.m.
[she] delivered chicken soup to Lael’s house, possibly
her daughter’s house as well, and then went to a new
store at the Pine Crest shopping area. She then went
back home and called Skabelund around 4:00 p.m. At
4:30 p.m., Skabelund drove to [Ms. Brown’s] home,
and together they went shopping at Macey’s grocery
store. They then went back to [Ms. Brown’s] home to
put away the groceries at approximately 5:40 p.m. and
had pizza for dinner that [her] sons brought home.
Skabelund stayed at [Ms. Brown’s] residence until 6:45
p.m., and then they both drove to Skabelund’s house
to watch movies. They arrived there around 7:00 p.m.
[Ms. Brown] fell asleep at 8:00 or 8:30 p.m. while she
was watching the movie and slept until midnight. At
midnight she awoke and drove herself home. After
arriving home she saw her two sons who were playing
video games. [She] went to bed shortly after midnight
Sunday morning. Buttars indicated that his mother
stayed at home the rest of the night.
¶124 Based on the foregoing chronology, and because in its view
“[n]o evidence was presented to suggest that [this] account of
[Ms. Brown’s] whereabouts [was] inaccurate,” the trial court
ultimately found by “clear and convincing evidence that
[Ms. Brown’s] whereabouts from Saturday afternoon on November
6th to the early morning hours of Sunday, November 7th, ha[d] been
firmly established,” such that “she could not have killed Lael during
the” relevant time period “when the murder could have occurred.”
¶125 This is clear error. The consideration of Ms. Brown’s
whereabouts is relevant only as part of her “alibi.” And even
assuming arguendo that Lael Brown was alive for some portion of the

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JUSTICE LEE, dissenting

afternoon,91 Ms. Brown still lacks a plausible—let alone a
compelling—alibi.
¶126 An “alibi” is “[a] defense based on the physical
impossibility of a defendant’s guilt” because the “defendant [was]
in a location other than the scene of the crime at the relevant time.”
BLACK’S LAW DICTIONARY 84 (9th ed. 2009). Ms. Brown’s “defense”
comes nowhere close. First, her establishment of her whereabouts in
no way demonstrates “impossibility.” Unlike the classic alibi
involving indisputable, objective evidence of the suspect’s
whereabouts, Ms. Brown’s evidence was subjective and self-
serving.92 The witnesses who vouched for her whereabouts during
critical portions of the day were all close friends or family
members—people who had a significant motive to lie for her, supra
¶ 86.93

91
Review of the trial court’s discussion shows that the only witness
that the trial court found credible (Dale Hall) saw Lael Brown during
the “early afternoon hours on Saturday, November 6th.” At one point
Hall said he saw Lael Brown at 1:00 p.m., and at another point at 2:30
p.m. Even assuming Hall was alive at both of those times, however,
Ms. Brown’s alibi is still unpersuasive. After all, she went to Lael
Brown’s house, by her own admission, between 2:00 and 3:00 (and
was alone until 4:00), and there was no other testimony—including
that by Carlsen, an individual previously “convicted of tampering
with a witness”—that was, by itself, “sufficiently credible to establish
by clear and convincing evidence that Lael was alive” at any time
after 2:30 p.m. In fact, the trial court itself noted its “confidence” in
the truthfulness of Carlsen’s testimony was “low,” such that his
testimony was “not entitled to a significant amount of weight.”
92
I of course agree that alibis are always “self-serving,” supra ¶ 70,
in the sense of advancing the cause of the defense. But they are not
always based on a defendant’s (or her family members’) simple
denial of being present at the scene of the crime. A classic alibi
involves objective evidence—a photograph, a hotel receipt, or the
testimony of an objective third-party. This case involves nothing of
the sort. It involves mere denials by the defendant and by her loved-
ones. And even they—she—placed Ms. Brown at the scene of the
crime at a time when it could have been committed.
93
One of them, her son, did in fact lie for her, perjuring himself at
her earlier trial. See supra ¶ 62 n.49. And he is the sole witness as to
Ms. Brown’s whereabouts late in the evening on Saturday and early
(continued...)
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 BROWN v. STATE
JUSTICE LEE, dissenting

¶127 More fundamentally, during at least the “chicken soup”
trip, and perhaps during other times, she was completely alone and,
worse, by her own admission, at the scene of the crime. This is no alibi.
It is only a self-serving explanation for why she was at the scene of
the crime (i.e., delivering chicken soup) and thus constitutes no
more than a denial.
¶128 That cannot possibly be enough to rise to the level of clear
and convincing proof of factual innocence under the law. The
district court’s decision must accordingly be reversed; otherwise the
“factual innocence” bar in Utah will be set at an impossibly low
level.
III
¶129 The grounds on which the majority rests its decision were
never asserted by Ms. Brown in her briefs or at oral argument. And
the court’s opinion today is thus handed down without the benefit
of any input from the State through the adversary process. We owe
the parties more in a case of this (or any) magnitude. We should
decide this important case on its merits. And we should reverse
under the law, even if that decision runs counter to the outcome
seemingly dictated by our human compassion for a sympathetic
party like Ms. Brown.

(...continued)
in the morning on Sunday.
56