After 40 years, prosecutor worries he locked up wrong man

It took 40 years, but last Friday morning, Kevin Brinkley's family finally got the meeting for which they had long yearned.

At a polished wood conference table in a 14^th-floor law office, Gerald Dugan — who in 1978 was the assistant district attorney who put Brinkley in prison on a life sentence for murder — told the Brinkleys that after all these years, he was having doubts.

"I am nearly 70 years old and in the process of winding down my legal career. Before I retire, however, I thought it was essential to address the conviction of Kevin Brinkley and my lingering doubts both then [and now] about his guilt," Dugan wrote in an email to the Pennsylvania Board of Probation and Parole later that day.

"As time has passed, I have come to believe that a very significant doubt exists as to whether Kevin Brinkley killed Charles Haag, and that Ronald Brinkley was the actual killer."

That's what Brinkley's family — including Ronald, Kevin's brother — has maintained for decades, from the time Kevin was locked up at age 15 right up until his resentencing in June, following a pair of U.S. Supreme Court decisions banning automatic life-without-parole sentences for minors and requiring states to apply the ban retroactively. But that didn't overturn Brinkley's conviction, which the District Attorney's Office continues to defend, as it has done over the course of various appeals and post-conviction hearings over the last four decades.

Under his new sentence, Brinkley is eligible for parole. He met with the parole board several weeks ago, and expects a decision within the next two weeks.

Dugan, a trim, gray-haired man who is a partner in the law firm Dugan Brinkmann Maginnis & Pace, had contacted the Brinkley family through a reporter to see if there was anything he could do to support Kevin's adjustment to society after four decades locked away.

But for the Brinkleys who crowded around the conference table — Kevin's uncle, cousins, nephew, daughter and granddaughter — the endgame always has been, and always will be, exoneration.

"We know Kevin didn't do it," his cousin Troy Brinkley said. Ronald Brinkley confessed several times: in a statement to police not long after the crime, in a newspaper interview, and in court, in 1994, during a post-conviction hearing. Ronald said he shot Haag, an egg deliveryman, when he was 14, during a robbery that went wrong. In 1995, a judge determined that Ronald's testimony lacked credibility. (Ronald Brinkley was not at the meeting. Through James Cade, Kevin Brinkley's nephew, he declined to comment.)

Dugan's agenda for the meeting was more open-ended.

"I wanted to reach out, not as a former prosecutor but as a human being, to see if there was anything I could do," he said.

When Cade heard that Dugan wanted to talk, his initial response was a laugh of disbelief.

"He wants to reach out to him after all this time? Now you got a change of heart, for what? It's awkward. It's funny. I don't know what to think." But, he added, "I always wanted to talk to this guy."

At the meeting, it turned out it's not that Dugan believes he did anything unethical or inappropriate.

Yet, something about the case has nagged him.

"I spent seven years in the District Attorney's Office and five years in homicide. Forty years have passed. Except for Sidney Brinkley, a serial killer who is not related, and this case, I don't remember much about any of them. And I've only saved one transcript out of all the cases."

He pushed a 6-inch-high stack of bound papers into the center of the conference table.

"This is the only transcript I kept. The reason I kept it I struggle with, but it's been sitting in my office for 40 years."

Even at the time of the trial, he said, he knew the defense attorney was outmatched.

"We called them slow guilty pleas," he said of such cases back then. And for prosecutors, "I'm not proud of saying this, but it was a notch in your gun to get a conviction in those days."

A 1992 Inquirer series exposed the poor representation by private, court-appointed lawyers, many of them well-connected politicians but inexperienced defense lawyers. Brinkley's lawyer was David Cohen, then between terms as a city councilman. Cohen died in 2005. In 1993, amid a reform effort, the public defender began taking on some homicide cases.

"Back at that time, the court-appointed attorneys handling these cases were virtually unremunerated, they had no real training, they had no resources available to them — and, of course, the exact opposite could be said for the prosecutors," said Marc Bookman, director of the Atlantic Center for Capital Representation and a former longtime public defender. "The mismatch was pretty obvious."

Dugan noted that Brinkley was convicted almost exclusively based on the testimony of two witnesses, one of whom, Adrienne Williams, later recanted her testimony, saying she'd been pressured by police. The other witness, John Schofield — who was adamant in identifying Kevin Brinkley — has since died.

That leaves Dugan unsure.

"I can't say that it was Kevin Brinkley, and I can't say that it wasn't," he said.

But, he believes, "if Ronald had testified, Kevin would have been acquitted."

Kevin Brinkley's uncle, Greg, struggled to contain his emotions.

"You did your job and we've never been angry at you for that. But it is the job of the DA not only to convict the guilty but to protect the innocent as well," he said.

"Our whole family was labeled. The theory of the case was, 'This was a Brinkley scheme.'"

Dugan agreed: "That was my closing argument.

"I was fired up," he added. "A lot of it is theater. It's because jurors watch television. They expect high drama."

The family had hoped Dugan's comments might persuade the DA's conviction review unit to take up the case and to potentially exonerate Kevin Brinkley.

But the District Attorney's Office provided a statement that was unequivocal: "Based on the evidence presented at trial, as well as evidence that was presented at hearings in Kevin Brinkley's various post-conviction proceedings, the District Attorney's Office has been and remains confident in the conviction."

Susan Ricci, who handled Brinkley's resentencing for the Defender Association, believed that at the least, the letter from Dugan to the parole board could have a real impact.

Going before the parole board claiming innocence is always a risk, she said. "The only thing I can think of why they'd deny his parole is that he won't accept responsibility" for the crime.

The Supreme Court decision that led to Brinkley's resentencing is founded in the idea that young people are more impulsive and immature than adults — but also more capable of rehabilitation, of change.

Dugan said he's changed, too.

"The message I'm trying to deliver is: I'm not the same person I was in 1977," he said.

"I'll be judged someday, too. At the end of the day we'll all be judged. I want to be judged on doing the right thing."