The Trials of Eroy Brown
Last June, an administrator at the federal prison in Salters, South Carolina, must have been shocked when he opened the transfer file of a Texas inmate named Eroy Brown. For the past 26 years Brown has been serving a 90-year sentence in various federal prisons. He was sentenced for holding up a Waco convenience store in 1984. What was shocking was not the robbery, which netted Brown and two accomplices $12 and a couple of candy bars, but what happened three years before the robbery. In 1981, Eroy Brown drowned the warden of a Texas prison face down in a drainage ditch and shot and killed a prison farm manager in a struggle for control of the warden’s pistol. Federal prison officials immediately locked their new prisoner in solitary confinement as a dangerous murderer and a possible threat to prison officers.
It is unlikely that the Texas Board of Pardons and Paroles placed the full story of those killings in Brown’s file, for that would have included the fact that Brown was acquitted of those killings by reason of self-defense. The full story is that in 1982, 23 of 24 jurors declared Brown innocent of murder in the drowning of Warden Wallace Pack. In 1984, another jury acquitted him of murdering farm manager Billy Max Moore. And the fuller story is that Brown has been kept in federal custody for a state crime because in 1984 Texas agreed to a civil rights settlement that keeps him from ever serving time in the Texas prison system—it might be too dangerous for him.
Brown’s parole attorney, Bill Habern, one of the lawyers who helped defend Brown’s murder charge, wrote a letter to the federal warden explaining that Brown was not the dangerous murderer he might seem to be, but the victim of two aggressive Texas prison officials. Habern thought Brown deserved the chance to live in the general prison population and hold a job.
If Brown were reviewed for parole on the basis of the crimes for which he was convicted, he would likely be out by now. Brown has served 26 years for a $12 robbery. But Texas will never parole him, Habern believes, because of the deaths of the two high-ranking prison officials. He thinks Brown is being held for a crime of which he was acquitted.
My new book—The Trials of Eroy Brown: The Murder Case that Shook the Texas Prison System—coming out this fall from University of Texas Press tells the whole story.
Saturday, April 4, 1981:
Only a handful of trusties and a couple of farm supervisors were working at the Ellis farm that Saturday morning.
One of them was Eroy Edward Brown, a Class I trusty who ran the tire shop for Billy Moore. He was 30 years old and had spent most of his young manhood in Texas prisons. His skin was so dark that his features disappeared in his prison mug shots. He was of medium height, with a small waist and strong arms and shoulders thickened by wrestling tractor tires all day.
After a long series of run-ins with the Waco juvenile authorities, Brown first entered the Texas Department of Corrections (TDC) in 1968, after pleading guilty to burglary. He was 17. He served three years, and was paroled to Waco, where he fitfully worked and acquired a heroin addiction. He returned to prison in 1974 for having burgled a Waco department store for $27 worth of men’s socks. He was nearing the end of his third sentence as an accomplice to the armed robbery of a Fort Worth motel. He had never been tried for his crimes. He always pleaded guilty.
Brown came to Ellis, the toughest prison in Texas, in 1977. When the trusty who ran the implement shed went home, Brown got his job. Brown filled ammonia tanks with fertilizer, fixed flats and changed tires on the farming implements and tractors. Eroy Brown had never succeeded in the free world, but at Ellis he did work that kept the plantation functioning. He was due for parole in three months, and he was looking forward to his freedom.
When Billy Max Moore came to run the farm in 1979, he made it clear that he was in charge. Brown didn’t think Moore was such a bad guy. But he came in stealing and hustling, getting oil changes and lube jobs for himself and his friends and stealing tires that he had Brown mark down on the farm inventory.
Brown had not met the new warden at Ellis, Wallace Pack. No one seemed to know much about him, except that he was rumored to have been tough on the mentally retarded convicts who were kept at the Wynne prison.
Brown had been an outside trusty three times in prison, and he knew how to do time. His motto was the convict’s motto: “I ain’t got nothing to do with nobody.” He kept his mouth shut.
But that morning he violated his convict’s code when he complained to his work partner in a woeful, loud voice: “After all I done for Billy Moore, I don’t see why I can’t get no furlough.” The tractor supervisor, a boss named Bill Adams, was standing in the back of the shop, listening. Adams didn’t like the tone of that phrase, “after all I done for Billy Moore,” and wanted to know what Brown was doing “running his head.”
In an earlier era, Adams might have let Brown’s comment go. Who would listen to a convict, anyway? But for the past several years, civil rights lawyers and FBI agents had been combing through the Texas prisons, talking to convicts about prison brutality. The TDC was in an uproar about civil rights.
Adams told Brown to get in the truck. Billy Moore could deal with Eroy Brown. By 1 p.m., Moore and Pack were dead, and Eroy Brown was stripped naked in a holding cell, a bullet wound in his foot, claiming “self-defense all the way.”
Sunday, April 5, 1981:
When the director of the Texas Department of Corrections, Jim Estelle, met with reporters the day after the deaths of Wallace Pack and Billy Moore, he was angry and defensive. The official story was that Moore had brought Eroy Brown near the bridge at Turkey Creek to smoke marijuana. Somehow Brown got a gun from the glove box of Pack’s car, scuffled with the two men, shot Moore and drowned Pack.
Reporters pressed Estelle about guns in prison. “Our written weapons policy is that they are not allowed inside the security perimeter,” Estelle said. He would not comment on an unofficial policy. “Security,” he said, “that’s nobody’s business but the people who need to know.”
It was almost as though the prison system was being blamed for the deaths. If inmates and not prison officials had been killed, the public outcry would have been greater, Estelle said.
“I guarantee you there aren’t going to be any marches on the courthouse,” he said, “any wailing or gnashing of teeth, any sackcloth and ashes over this.”
The source of Estelle’s bitterness was a federal judge with the improbable name of William Wayne Justice. For the previous seven years Justice and Estelle had been embroiled in what turned out to be one of the longest-running prison civil rights cases in the history of federal jurisprudence: Ruiz v. Estelle, or more simply, Ruiz.
David Ruiz was an armed robber who had filed a 15-page, handwritten petition in Justice’s court charging the TDC with cruel and unusual punishment. In 1974, Justice consolidated Ruiz’s petition with several inmate writs, recruited a civil rights attorney from the NAACP and got the Department of Justice involved. Next came a trial before Judge Justice.
The TDC was not used to outside interference. It had long enjoyed a reputation as the best-run prison system in the country: cheap, clean and orderly, with few escapes and little violence. The state fought Ruiz’s pretrial investigation to the U. S. Supreme Court and lost. After four years of delays, in October 1978, the trial began, with demonstrators picketing outside the courthouse. One of their signs read, “Prisons are concentration camps for the poor.” Another said: “W.J. Estelle is a slave master.”
Scheduled to last three months, the trial lasted nearly a year as the state, expecting to lose, conducted prolonged cross-examinations of both convict witnesses and prison officials. The core issues were overcrowding, inadequate medical care, lack of safe working conditions, and brutality by TDC officials and their inmate snitches and enforcers, the building tenders.
The case involved 349 witnesses, hundreds of exhibits and thousands of pages of documents. To demonstrate the problem of overcrowding, the plaintiffs built a replica of a typical Texas prison cell, five feet wide and nine feet deep, and crammed three to five court officials inside.
Justice took a year to study the record and write his opinion, which he issued in December 1980, a little more than three months before the deaths at Turkey Creek. In more than 200 pages, Justice described the suspicious deaths and gruesome stories of Texas prison life. In one, a convict whose arms had been cut off in a threshing machine had been left alone to be raped by another inmate. A paralyzed inmate, deprived of his wheelchair by officials, was forced to drag himself on the ground for hours. Officials allowed a building tender to rape and torture an inmate by forcing him to stand in a toilet while he shocked him with wires strung from the ceiling light.
“Nor is the brutality the sole province of a few low-level security officers,” Justice wrote. “Many vicious incidents of abuse implicate high-ranking TDC officials.”
One newspaper reporter compared Justice’s opinion to Dostoevsky, who had famously written: “The degree of civilization in a society can be judged by entering its prisons.” Reporters found Estelle’s reaction to Justice’s opinion peculiar and quotable. He denounced it for its literary merit.
“It read like a cheap dime novel,” Estelle said. “I think he overused the adjective aspect of his dictionary. It did not read like a legal opinion and did not even make interesting reading as far as I’m concerned.”
Now Estelle had lost the warden of Ellis prison and his farm manager. It might have seemed to Estelle that the Ruiz decision had emboldened Eroy Brown. At least a dozen cases of questionable inmate deaths had been brought up during the trial and three inmate witnesses died during it. For the past three years, the prisons had been restless with work stoppages and protests. Inmate-against-inmate violence had increased. The state had resolutely defended the prison system, denying every charge brought against it, especially those for brutality by prison officials. It was time for someone to stand up for prison officials.
“We’ve had five employees killed in the last nine years and we haven’t had an execution since 1964,” Estelle told reporters.
“If there was ever any reservation in my mind [about the death penalty], the closer it gets to home the less I have. I wouldn’t want to be the next person who tried to assault the next warden.”
The Defense Team
Bill Habern was getting bored with law when Eroy Brown’s case blazed into the headlines. He had a small practice in parole law and he had worked in prisons. He knew that prison officials were forbidden to take handguns near convicts. He suspected that Brown might have a good case for self-defense.
In a little more than two months, Habern put together a major defense team for Eroy Brown. He recruited state Representative Craig Washington as first chair, a star courtroom performer who could shred a witness with relentless questioning and move a jury to tears in a closing argument. He had former prosecutor Tim Sloan, who knew the most experienced forensics experts in Texas, who could take shorthand notes of everything that happened, do first-rate legal research and hand-write motions on the spur of the moment. Habern could consult with every major defense and civil rights lawyer in Texas, and he had deep connections among prison inmates. At his back he had the long shadow of public doubt the Ruiz case had cast on Texas prisons.
The First Trial, Galveston,
Five days after the trial started, Craig Washington laid out his theory of the case. It had nothing to do with a violent inmate trying to escape and everything to do with a convict who was being put in his place. Eroy Brown was in fear of being thrown in the river because he had threatened to expose the thefts of “Master Moore,” Washington told the jury. “The defense,” he said, “is self-defense.”
“I think the evidence will show that Moore and Adams were stealing tires,” Washington said. “Eroy mounted tires on free-world vehicles.”
“Eroy was complaining about his failure to obtain a furlough. He thought he had worked harder than anyone else, and he [Moore] wouldn’t go to bat for him.” “Adams misconstrued a remark made by Eroy,” Washington said, and “he took it as a threat to snitch on them.” Pack’s response, Washington said, was threatening: “We’ll see if you can talk at the bottom of the Trinity River… .”
Then Washington put Eroy Brown on the stand.
Moore radioed for Pack to drive to a crossroads near Turkey Creek and meet him. Brown knew that three trusties were watching from a farm building 100 yards away. The following description is drawn from Brown’s testimony.
Mr. Moore he pushed me around to the side of the car, and said, “Get your ass up here, nigger. Get your ass up here against this car. You get your nigger ass right up here against this car.”
I put my hands on the car spread-eagle like, with my arms on top of the car. Then he kicked me outward. I kept on leaning, looking back toward the trunk of the car.
I had talked almost in a monotone, kind of low. Then I changed my tone of voice. I started talking loud so I could make Kelley and them hear what was going on. “You can’t do me any kind of way. People will come down and see about me.”
Mr. Moore said, “Nigger, you ain’t going to be able to tell a goddamn thing on me. You ain’t going to tell shit on me.”
Warden Pack was at the back by the trunk. He let the trunk down and he come around and he had this pistol in his hand and he slapped it up. He closed the cylinder up. He said, “Billy, get the handcuffs out of the glove box.”
Mr. Moore was keeping me up against the car, and he opened the front door, and he hit the button on the glove box, and he got the handcuffs out of there. He took my left hand snapped the cuff on.
Mr. Moore said, “Nigger you ain’t going to be able to tell no one what goes on here. We still do away with niggers like you down here.”
He backhanded me and he had me leaning up against the car and was pushing me against the car. I started talking loud again. I started telling him that my people would call the Justice Department. There were people who cared about me, and I would tell the Justice Department or someone would tell the Justice Department.
Mr. Pack come up to my left side and then he sticks the gun up to my head, right up to my temple. Mr. Moore done got one handcuff on me right there. And he was fixing to get the other one on.
I looked at him and I said, “Well, somebody is going to tell somebody about what is going on here. It ain’t nobody going to do away with me.”
Then he cocked it. He cocked the gun.
He said, “I told you to shut your ass up, boy. I will splatter your brains all over this street right here.”
If he hadn’t cocked the gun I might have thought that he was just trying to scare me, I might not have done anything. I thought he was going to kill me.
I tried to lean back to get out of range of the gun. He had the gun sticking in my face. I tried to lean back but Mr. Moore pushed me back up against the car. I turned around and I took my other hand, my right hand, and knocked the gun down and it went off. The bullet went straight down and hit my right foot. All three of us jumped from the impact of the sound of the gun.
Mr. Moore was pulling on this one handcuff and Warden Pack, he was trying to come again with the pistol in his hand. I took my hand and knocked it to the side that time. It went off, still in his hand. Major Moore was behind me. He was trying to put the handcuff on my hand. When the gun went off, he let go of my arm, and he just held the handcuff.
Warden Pack was fixing to try to bring the gun back up again, and I grabbed hold on it. I finally got hold of the barrel and continued to bend and we both had a hold of it and I twisted it out of his hand and the gun fell to the ground between me and Warden Pack. Then we both grabbed at it. Warden Pack starts grabbing after the gun, reaching with both hands. The major was pulling on the handcuff and he was trying to pull me back. I was batting at Warden Pack’s hands. We were reaching for the gun and after two or three minutes I finally got hold of it and I spun around and pointed it toward [Billy Moore].
I kept backing and I told them, “Don’t come at me. You ain’t taking me to no bottoms. You ain’t going to drown me in no bottom.”
I lost my balance and I fell. I scoot down, and both of them dived at me. Major Moore had a piece of the handle of the gun, Warden Pack had a hand on the gun, and my hand was on the gun too. They dives at me and I am scooting back and the gun went off, bam, bam.
The gun went off twice, and Major Moore fell back this way, which is the way he fell back towards the car. Warden Pack backed off and run towards the fence on the bridge. Then I didn’t see him no more. I just sat down. I had the gun sitting on my right-hand side. I pulled my britches leg up and was trying to look at my foot. My foot was hurting and my leg was hurting all up and down my leg where the bullet went into my foot. I tried to stand up and I walked over toward the end of the bridge. I couldn’t stand up very good, and hopped around and looked on the side of the bridge. I couldn’t see him. I called him and I said, “Warden Pack, Mr. Moore is shot up here. I am shot. Please get us to the building.”
He hollered back, “Nigger, you are going to get to the building all right.”
After wrestling with Pack for the gun, Brown testified, he threw it in Turkey Creek. Pack tried to drown him once but didn’t succeed. The two men wrestled again.
He reached over and grabbed me and I fell over. I grabbed him and I twisted him. We kept turning over and over and he was trying to get on top of me and I was trying to get on top of him.
We rolled over and we ended up in the drainage ditch. I hit the water first. I am face down in the mud. He’s on top of me.
I got up on my knees and scooted between his legs. I pulled his leg out and I fell on top. I jumped on him and laid on him. I didn’t push his head. I just jumped and had my hands across him. And I just laid on him. I laid down there for a few minutes.
I laid on him and laid on him. I don’t know how long I laid on him. He stopped moving.
I was more or less resting. I was holding him. I was trying to keep—he kept on. He kept on wanting to fight. He kept on. Man, I begged and I pleaded with him. He just kept on.
Craig Washington asked: “If he hadn’t done those things to you, Eroy, would you have done those things to him?” Eroy was weeping when he said the following words and the court took a recess.
No sir, he just kept on wanting to fight. He just kept on. He just kept on. He just kept on wanting to fight.
Washington’s Final Argument
Washington urged the jurors to put themselves in Eroy Brown’s place, to see the world through the eyes of a convict.
Using the defense table to represent Pack’s car, Washington walked the jury back through the physical evidence. He pointed out that the one slide the prosecutors had shown of the view from the garden shed showed precious little. The two inmate witnesses, Levi Duson and James Soloman, [who testified against Brown] were 100 yards away, their view of Pack’s car blocked by the truck. Washington walked around the defense table, showing the jurors how impossible it was for Soloman and Duson to have seen what they said they saw, and they didn’t care what happened to Brown when they told their lies.
“Soloman and Duson would try anything to get out of prison,” Washington said, “even ride on his life.”
If Brown truly had control of the gun, as Duson and Soloman said he did, and was full of murderous intent, why didn’t he just shoot Pack?
“What fool would provoke and be difficult when the other guy has the gun?” Washington asked. “They are playing a game with another man’s life.”
The true meaning of what happened, Washington said, was that Moore and Pack were worried that Brown had threatened to expose Moore’s thefts of prison tires. In another era, the threat of a convict to talk to the outside world was not likely to worry a warden or a farm major. But in the Ruiz era, convicts were being listened to. That was why Pack had pulled a gun on Brown.
“They would have you believe a warden rides around on a prison farm with a gun lying out on the seat,” Washington said. “You know that’s not true.”
“They had no business with that gun out there. They had that gun for only one reason: Stop that Old Thing from running his head.”
Once Moore had fastened the handcuffs on Brown’s left wrist, he was like a bird in a cage, Washington said. As Moore was about to snap the cuffs on Brown’s other wrist, Brown had to decide what to do.
“He had to decide whether he was going to live or die,” Washington said. “He had 15 seconds to decide before that second handcuff went on. What do you do? A gun to your head and one handcuff on?”
“His struggle was consistent with human nature,” he said. “Everyone wants to live. No one wants to die. It was like being at the end of your rope.” The state’s version of events was based on lies, Washington said, and, as he repeated the phrase again and again in his final argument: “No lie can live forever.”
The newspaper reporters didn’t pick up on the source of that expression, but it was surely well known to the black spectators who crowded the courtroom in support of Eroy Brown. It came from Martin Luther King Jr.’s speech on the capitol steps in Montgomery, Alabama, in 1965. King said: “I come to say to you this afternoon, however difficult the moment, however frustrating the hour, it will not be long, because ‘truth crushed to earth will rise again.’ How long? Not long, because ‘no lie can live forever.’ How long? Not long, because ‘you shall reap what you sow.’ How long? Not long, because the arc of the moral universe is long, but it bends toward justice.”
Michael Berryhill is chair of the journalism department at Texas Southern University. He lives in Houston.