Thursday, May 26, 2011

Is Utah Attorney General Mark Shurtleff's Chemotherapy Affecting His Judgment? Shurtleff Changes His Mind About Debra Brown A Third Time

Update June 7th: Mark Shurtleff now declared cancer-free; calls for his resignation for medical reasons now redundant. Updated post HERE.

Utah Attorney General Mark Shurtleff has been undergoing chemotherapy for Stage 3 colon cancer since January 2011. Lately, he's been reacting badly to it; on May 7th, he was hospitalized for several days due to a bad reaction to fluorouracil (also referred to as 5FU), which is used to slow or stop cancer cell growth. He couldn't keep any food down.

Chemotherapy involves the administration of powerful but poisonous drugs to kill cancer cells. Collateral damage comes in the form of numerous side effects, many of which require other drugs to control. The interaction of so many different drugs can cause unpredictable reactions; it can affect one's judgment. And his decision-making process on the Debra Brown case gives reason to question whether or not his professional judgment is sound -- and whether or not he's competent to continue serving as Attorney General.

When 2nd District Judge Michael DiReda ruled on May 2nd that Debra Brown was factually innocent of the 1993 murder of Lael Brown, and after she walked out of prison for the last time on May 9th, the Attorney General's office initially announced their intention to appeal the decision. They were apprehensive about the possible precedent set, since the ruling was the first-ever case in Utah under a 2008 state statute that allows convictions to be challenged based on new facts rather than new DNA evidence. They also disagreed with Judge DiReda's additional ruling that the state of Utah pay Brown $570,780 in financial assistance. The Attorney General's office didn't actually want to put Brown back in prison; they just didn't think the state should pay her the money.

-- Read Judge DiReda's 47-page decision HERE.

After a brief outcry of public protest, Attorney General Mark Shurtleff then personally intervened and said there would be no appeal. So Debra Brown went home not only with a huge load off her shoulders, but with the hope of rebuilding her life financially, since a job resume that says Utah State Prison on it does not necessarily promote employability.

Not so fast, Debra. On May 26th, Mark Shurtleff changed his mind AGAIN, announcing his intent to appeal to the Utah Supreme Court after all. Once again, the word "precedent" forced its way to the surface; Shurtleff explained "If we do not [appeal], we fear there will be a floodgate opened — that every judge out there will become another Monday morning quarterback, giving another bite of the apple to everybody who’s been convicted of a crime". Shurtleff explained his previous decision not to appeal by saying that he just got caught up in the emotions of the ruling. He also said he had not closely studied the facts of the case when he made the announcement retracting the planned appeal. After reviewing the case and speaking with concerned county attorneys, he decided an appeal was necessary; 26 of the state's 29 county attorneys back him up. Shurtleff said his office will not seek for Brown's return to prison, but noted that his office will not make that decision. KSL news video embedded below:

Video Courtesy of

So Debra Brown not only could have her conviction reinstated and denied her compensation, but there's even a remote chance she could go back to prison. One would think she would be absolutely devastated by this turn of events, but she's reportedly optimistic and positive that it will work out for her in the end.

The Rocky Mountain Innocence Project, which helped Debra Brown with her appeal, does not believe a bad precedent has been set. Although they receive more than 200 requests for assistance every year, they only end up investigating 10 or so over the course of many years. And of the 10 innocence petitions currently filed under the 2008 factual innocence statute, only Brown’s case reached the litigation stage.

Analysis: The problem isn't that Shurtleff decided to appeal; there are legitimate grounds to fear an unintentional precedent. Some say Judge DiReda set the bar too low. The problem is that Shurtleff gave way to emotion and decided not to appeal, getting Brown's hopes up, and then changed his mind, temporarily dashing Brown's hopes. Considering that he is being treated with powerful chemicals, it is appropriate to ask whether or not his medical treatment is adversely affecting his judgment.

This isn't political; I cannot recall taking any serious issue with Mark Shurtleff. He's a devoted husband and a dedicated father, and by all accounts, has been a good Attorney General. But can the state of Utah afford to have as its chief law enforcement officer a man whose judgment may be affected by chemotherapy and its side effects? Resignation for medical reasons would be totally honorable; he wouldn't be considered a quitter.

A resignation decision should not be precipitous. But the question needs to be asked publicly -- should Mark Shurtleff resign for health reasons?

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