Michael Allen Browning: An appeals court has upheld a federal judge's ruling that important evidence was withheld from Browning's defense team that could have had an impact on the outcome of the trial. The District Attorney's Office has decided not to appeal the decision and is preparing for a new trial
An appeals court has affirmed a Tulsa federal judge's ruling to grant a new trial to a man who had been sentenced to die for the murders of a Glenpool couple.
In a ruling issued Monday, the 10th U.S. Circuit Court of Appeals upheld a decision by U.S. Senior District Judge Terence Kern to overturn the death verdicts that were imposed at the 2003 trial of Michael Allen Browning, who is now 37.
The 10th Circuit decision "will not be appealed. Our focus now is to start contacting witnesses and prepare for another trial," said Tulsa County First Assistant District Attorney Doug Drummond.
"This decision is very difficult for the victims' family," he said in an emailed statement. "They were able to get some closure once the trial was completed, and now, years later, they must go through the same emotional process again.''
In a 2011 decision, Kern ruled that Browning was entitled to relief based on a pretrial ruling by a Tulsa County judge not to order the disclosure of the mental-health records of a vital prosecution witness.
Jurors who found Browning guilty decided that he deserved the death penalty for the first-degree murders of Harry and Teresa Hye, plus a life sentence for shooting their niece with an intent to kill.
Investigators said Harry Hye, 64; his wife, Teresa Hye, 42; and their niece, Cenessa Tackett, then 21, were shot during a robbery Feb. 18, 2001, before their rural home was burned down.
Tackett, who was then pregnant with a child that she said was Browning's, survived and was the prosecution's key trial witness.
Tackett indicated that Browning's co-defendant, Joel Shane Pethel, shot her and her aunt and uncle after the three were bound with duct tape and placed in a large closet, where she said Browning started a fire.
Pethel pleaded guilty to the two murders plus robbery, shooting and arson counts. He was sentenced to four consecutive life prison terms - two of them with no possibility of parole - plus 35 years.
In Browning's federal court appeal, he claimed that Tackett made up testimony about his involvement.
Kern's ruling said the prosecution painted Tackett "as an immature young victim with learning disabilities," but that the disclosure of her mental health records to the defense "could reasonably have changed the way the jury viewed Ms. Tackett's credibility and the motive behind her testimony."
The 10th Circuit's opinion says that "what the jury did not know - and the defense attorneys also did not know - was that Tackett, who became the most important witness at trial, had been diagnosed with a severe mental disorder."
That information "was favorable to Browning and material to his defense, the federal appeals court wrote.
According to Drummond, the mental health records were turned over to a Tulsa County judge to review for a determination on whether they should be turned over to the defense counsel.
The judge's decision not to share them with the defense was affirmed by the Oklahoma Court of Criminal Appeals, the prosecutor indicated.
"I tell families that the death penalty appeal process is a long and winding road, and this is one example," Drummond's email says.
In a unanimous decision in 2006, the state Court of Criminal Appeals affirmed two murder convictions and two death sentences for Browning and upheld the life term for the shooting count.
Bill Braun 918-581-8455
bill.braun@tulsaworld.com
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