A man who got off death row after being convicted of two Glenpool murders because the defense should have been allowed to see the mental-health records of a key witness at his trial now wants either the case dismissed or a change in prosecutors.
On behalf of Michael Allen Browning, 38, Tulsa County Chief Public Defender Jack Zanerhaft filed a pleading requesting that the double-murder case be dismissed with prejudice, which would mean it could not be refiled.
In the alternative, the defense motion requests that the entire District Attorney's Office be recused from handling a retrial or seeks the removal of trial prosecutors Doug Drummond and Steve Kunzweiler from the case.
''Just as prosecutors argue that defendants must be held accountable for their actions, prosecutors must be held accountable in a case where the death penalty is being sought for punishment," Zanerhaft wrote.
A retrial is scheduled for Sept. 8.
Drummond, the first assistant district attorney, said he doesn't think the defense argument will be successful.
''Ultimately, the case is set for trial, and 12 citizens will again decide the fate of Michael Browning,'' he wrote in an email to the Tulsa World.
In 2013, an appeals court affirmed a Tulsa federal judge's ruling granting a new trial to Browning, who had been sentenced to die for the murders of a Glenpool couple.
The 10th U.S. Circuit Court of Appeals upheld a decision by U.S. Senior District Judge Terence Kern to overturn Browning's convictions and death sentences imposed at a 2003 trial. That jury decided he deserved the death penalty for the murders of Harry and Teresa Hye and a life sentence for the shooting of their niece.
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 home was burned.
Tackett, the prosecution's key trial witness, indicated that Browning's co-defendant, Joel Shane Pethel, shot her and her aunt and uncle after the three were bound with tape and placed in a closet, where she said Browning started a fire.
In 2011, Kern ruled that Browning was entitled to relief based on a pretrial ruling by a Tulsa County judge not to order the disclosure of Tackett's mental-health records.
Kern's ruling said the prosecution painted Tackett "as an immature young victim with learning disabilities" but that disclosure of those records to the defense could have changed the way the jury viewed her credibility.
The 10th Circuit's opinion says that what the defense did not know was that Tackett had been diagnosed with a severe mental disorder.
The mental health records were turned over to then-Associate District Judge Deirdre Dexter to review for a determination on whether they should be sent to the defense.
The 10th Circuit wrote that the mental health information regarding Tackett was favorable to Browning and material to his defense.
Pethel pleaded guilty to the two murders plus other counts. His sentences include four consecutive life terms.
Drummond said the record ''clearly shows we did not see any of Ms. Tackett's mental health records.''
Judge Dexter, and not the prosecutors, made the decision that the records should not be released, Drummond indicated.
"We followed the proper legal procedure," he said.
Bill Braun 918-581-8455