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Killer's death penalty reversed

Sunday, February 10, 2002

By Tom Gibb, Post-Gazette Staff Writer

Richard Brine says the flashbacks still come 21 years later.

His youngest child, a smallish 13-year-old, bludgeoned, his body lying just off a path winding through woods east of Erie, a mile from home.

"It's a strange thing," Brine said last week. "Right out of the clear, I can see his body at the hospital when I went to identify him."

Brine, 71, is a retired welder and former school bus driver who had quadruple bypass surgery 14 months ago.

"When it happens, when I see this, it's not good for an old man."

It's been 20 years and three weeks since an Erie County jury sent 22-year-old Alan Pursell, whose unbroken history of drug abuse dated to age 7, to Death Row for beating eighth-grader Christopher Brine with a rock, strangling him with a tree limb and leaving him bloodied and naked.

Stirred periodically by a flow of appeals, the case never quite died. Now, it awakens again, with a ruling from a federal judge in another appeal upholding Pursell's murder conviction but throwing out the death sentence.

In a 212-page opinion, Chief U.S. District Judge D. Brooks Smith, sitting at the federal court in Johnstown, ruled that there were no verdict-rocking mistakes in the trial.

But in a separate hearing, where jurors weighed the death penalty, Pursell's attorney laid out an "anemic" case, Smith wrote.

It never touched on a life that reads like a horror story -- Pursell born to an alcoholic prostitute, surrendered at age 4 through an adoption sealed in a barroom, beaten and sexually abused by his adoptive father.

Had he offered that to jurors, Smith wrote, Pursell's trial attorney "could have added flesh, bones, a mind and a heart to Alan Pursell."

With Smith's ruling, lawyers have quick decisions to make to meet the federal 30-day appeal deadline.

Erie County prosecutors could walk away from the case and let the convicted killer, now 42, live out his life in prison without chance of parole.

His defense team, the Defender Association of Philadelphia, a nonprofit agency, could renew its fight against the murder conviction.

Erie County prosecutors could appeal in the federal system to reinstate Pursell's death sentence. Or they could let the ruling stand and ask that a new Erie County jury be seated 20 years after the fact to consider reimposing the death penalty.

"I don't know if anything like that's ever been done," said Kenneth Zak, an assistant district attorney who inherited the case 11 years ago.

If Richard Brine has his way, it will be. "I want to see the death penalty, yes indeed," he said. "You take a life sentence and, yeah, that's still living better than most people live."

For now, both sides are sorting through the 212 pages in Smith's opinion.

"It takes time to read it a few times," said Stuart Lev, a lawyer with the Defender Association.

The case began after supper July 23, 1981, when Christopher Brine rode off on his bicycle from his home in Wesleyville to the bike paths in Lawrence Park Township a mile from home.

He was a small, skinny boy, the youngest of eight children.

"He was just blooming," his father said.

Christopher Brine might have taken a special shine to his bronze-colored bike because it gave him mobility in a way that his own legs couldn't; with one leg shorter than the other, the youngster ran with a limp.

But he never came home.

The next day, Christopher's body was found in a clearing near the path, a scene of incongruity.

His face had been bludgeoned, probably pounded 15 times with a rock, but his shoes were placed neatly beside the body and his pants were folded carefully over a tree limb.

Pursell, who lived with his mother in a mobile home park five blocks from the Brine home, was arrested a few days later.

Police, working before DNA technology was developed, retrieved Pursell's shoes and found spatters of blood that didn't match his. With that came a twist that seemed stolen from the notorious Leopold and Loeb murder case that gripped the nation seven decades earlier.

In that case, Nathan Leopold, 19, and Richard Loeb, 18, both sons of privilege, plotted the murder of a youngster as almost an intellectual exercise in building the perfect crime. But the plot came undone and both were convicted after Leopold's eyeglasses, distinctive because of a hinge offered by a single Chicago optometrist, were found near the body.

Near Christopher Brine's body, too, police found a pair of glasses.

The prescription was so rare, a local optometrist, Dr. Moody Perry testified, that he wrote only one prescription like it in six years. It was for Alan Pursell. And, in a point Pursell denied, Perry said Pursell turned up at his office the day after the killing, seeking a replacement pair.

Three days after that, as police withheld information about finding the glasses, Pursell and friend Diane Walters watched a television news report about the crime, Walters later testified. Pursell turned and asked whether a person's identity could be traced through his glasses, she said.

The bloodied shoes and the glasses "established a solid foundation for Pursell's guilt," Smith wrote. Indeed, in short order, a jury convicted Pursell, a man who sported a "Born to raise hell" tattoo but carried a criminal past that consisted only of a go-cart theft and a $191 bad-check charge.

Prosecutors offered no motive for the homicide. Shortly after the murder, police suggested in a search-warrant affidavit that the killing was part of a sexual assault. But Pursell was never charged with any sex crimes, and the theory never resurfaced when the case went to trial.

In May 1999, Pursell, at the maximum-security state prison in Greene County, was nudged closer to the state death chamber when then-Gov. Tom Ridge signed his death warrant. Twelve days later, though, Smith stayed the warrant when he got Pursell's appeal -- one of a 20-year series he filed through attorneys or authored himself.

"It just seems like appeal and appeal and appeal," Brine said.

The appeal to Smith, though, gets him off Death Row.

Purcell's appeal contended that the Erie County trial shortchanged him in a number of ways, from refusing a change of venue to prosecutors' failure to disclose what he said was evidence that a man who didn't fit his description was soliciting sex from local youngsters. Peppered throughout the appeal were claims that his defense attorney was ineffective.

In court, Smith wrote, Pursell's attorney tried to fend off the death sentence only by saying that the defendant was young, had a girlfriend, carried a bland criminal record and wanted to live. By Smith's account, that paled next to "powerful evidence that should have been presented."

The 4-year-old that Pursell's prostitute mother surrendered to another woman was filthy and malnourished.

When a man came calling at his adoptive mother's house, Pursell announced, "Lay down. Man here. Make money," the judge wrote. By age 7, Pursell was sniffing glue; as a teen-ager, he habitually huffed solvents, the court record says.

Beatings and drug abuse dulled his impulse control, one psychologist concluded.

Zak countered last week that Pursell's story of abuse surfaced only when the appeal arrived in federal court in 1999 and was never mentioned in previous appeals Pursell filed. He won't say whether he considers the claims suspect.

"But why, oh, why, didn't this come up earlier?" he said.

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