Minute by Minute

Let’s think about time for a moment. The exercise is worth it because in 1968 a man’s freedom depended on just how accurately we tell time.
 
As I write this there are four clocks in my immediate vicinity. The analog clock on the wall says it is about 2:14 p.m. My computer clock says it’s 2:16. Both my cell phone clock and the digital clock on the cable box say it’s 2:13 p.m.
 
When you ask someone the time and they say “2:15″ or “a quarter after,” do you wonder if their watch precisely indicates 2:15 or is it showing somewhere between 2:13 and 2:17? Does anybody really know what time it is?
 
For Dr. John M. Branion, Jr., convicted murderer, the answers to those questions made all the difference in the world.
 
Dr. Branion was not the kind of man anyone would expect to kill his wife. Educated at the University of Lausanne in Switzerland, he was a successful and respected African-American physician at time when discrimination against blacks was legally practiced and accepted in America.
 
His father was one of the most prominent criminal defense attorneys in Chicago, serving as the deputy public defender for Cook County — the first black man to do so, and Branion’s brother-in-law was an equally successful attorney.
 
Branion’s wife, Donna, came from one of the wealthiest black families in Chicago. Dr. Branion was active in the civil rights movement and had walked beside Dr. Martin Luther King, Jr. during his visits to Chicago.
 
According to his defense attorney Branion once shielded King from a thrown brick with his own body.
 
Unlike King, however, Branion’s involvement in the movement was not limited to peaceful protests. He was known to police as a doctor who tended to injured Black Panthers and other more radical activists, putting him on a U.S. Justice Department list of “undesireables.”
 
Although Branion had an on-going affair with a woman who shared his passion for civil rights activism, by all accounts the 30-year Branion marriage was otherwise happy. The Branions had two children, a daughter and a son who was 4 years old in 1967.
 
The crime that put Dr. Branion in prison occurred in the morning of December 22, 1967 when Donna Branion was shot to death in her home. The evidence that pointed to Dr. Branion as the murderer was all circumstantial and at his trial Dr. Branion unsuccessfully used an affirmative defense of impossibility — it was impossible for him to have killed his wife because at the time she died he was someplace else.
 
That’s why time was so important in the Branion murder case.
 
Donna Branion was known to have been alive at about 10:15 a.m. when she spoke with her sister about some mundane topics. Donna’s sister, Joyce Tyler, testified that her sister did not sound agitated or upset about anything.
 
The first event occurred at 11:05 a.m. when a neighbor of the Branions returned home from shopping. Theresa Kentra later told police that about 20 minutes later she heard a “loud sound followed by two or three similar sounds” and then a commotion of some sort.
 
The court opinions in this case refer to them as “sounds” or a “commotion” while Mrs. Kentra, on the stand, used the word “shots” — quite a difference in connotation. The reason for the change in wording is because in a criminal appeal the law requires courts to view the case with an implicit favorability for the prosecution.
 
In Brannon’s case, the prosecution claimed the noises were “sounds,” so the courts reviewing the case assumed the jury believed the state’s theory was correct. However, even if a jury as the arbiter of truth finds the defendant guilty, that does not mean it agreed with the prosecution on every detail — but appellate courts do not like to second-guess juries on facts, and so apply the precedent across the board regardless.
 
Let’s agree that what Mrs. Kentra heard happened at 11:25 a.m because Dr. Branion’s defense and appellate counsel asserted it was so and the prosecution did not object.
 
Some 15 or 20 minutes after she heard those noises, Mrs. Kentra saw Dr. Branion come out of his apartment and call for “Helen,” another doctor who lived nearby. For what it’s worth (and it might be worth a lot) Mrs. Kentra said Dr. Branion did not appear to be agitated.
 
Chicago police logged a call reporting Donna Branion’s death at 11:57 a.m. One minute later, the first patrol car was at the scene. Officer William Catizone testified at Dr. Branion’s trial that he found Donna’s body lying in the utility room of the Branion home.
 
Donna had been shot in the head, neck, and shoulder. Three bullets passed through her body and were found at the scene beneath her body while a fourth was found in her body during the autopsy.
 
There was no sign of forced entry and Donna had not been sexually assaulted. Robbery also did not appear to be the motive.
 
Almost immediately suspicion fell on Dr. Branion, despite the fact that he had no motive for killing his wife. They were a loving couple despite his unusually close relationship with Shirley Hudson, who he met in the civil rights movement and later married.
 
Money wasn’t an issue. Certainly Donna Branion came from a wealthy family, but Dr. Branion would not inherit anything as a widower; in fact, if all he cared about was his wife’s money, he had a strong motivation to keep her alive.
 
Police centered their attention on Dr. Branion because of the way he acted after discovering his wife’s body.
 
Entering the home, he turned on the light in the utility room, saw his wife lying in a pool of blood and simply turned off the light, left the room and called for help. He told police that he did not approach her because he could tell by her appearance that she was dead. Even for a physician, this is odd. Few would assume a patient — particularly a family member — would be dead without closer examination.
 
As the investigation into Donna Branion’s murder went on, other circumstantial evidence emerged. Ballistics experts determined that Donna was shot by a Walther PPK, a type of gun owned by Dr. Branion. However, when police asked him whether he had any guns capable of firing the .380 slug of the type that killed his wife, Dr. Branion did not tell them that he owned a PPK — which can fire .380 cartridges despite being a 9mm weapon.
 
Later, armed with a search warrant, police recovered two boxes of ammunition in the Branion home. One box was full, containing 25 cartridges. The other box was missing four shells.
 
That was good enough for the police. Dr. Branion was arrested and charged with the murder of his wife.
 
At trial the medical examiner testified that Donna had been shot four times, while the defense strongly disputed that assertion.
 
“There were 13 wounds on the victim’s body, as detailed in the state pathologist’s report,” wrote Northwestern University Law Professor Anthony D’Amato in an analysis of the case. “One bullet lodged in Donna’s body; the others entered and exited. It would have taken five or six other bullets to inflicte the remaining twelve wounds.”
 
D’Amato was one of Dr. Branion’s appellate counsel who wrote an excoriating critique in a Cardozo Law Review article about the judicial review the doctor’s case received.
 
The number of bullet wounds, like the timeline, is essential to understanding the Branion case. The state recovered four slugs that were later identified as having the class characteristics of bullets fired from a Walther PPK (six lands and grooves with a right-hand twist and marks on the cartridge from a pin that indicates the weapon is loaded).
 
The Chicago police firearms expert who testified about the murder weapon (which was never found) stated that the slugs had the class characteristics of .380 caliber automatic ammunition.
 
Because we’re dealing with circumstantial evidence, appearances are important. Dr. Branion owned a Walther PPK — a 9mm Walther, not a .380. A 9mm can fire .380 rounds, but it’s not designed to do so. At the time Walther made both 9mm and .380 PPKs.
 
Dr. Branion was questioned at the crime scene.
 
He told police that he left the hospital by 11:30 a.m.(a nurse puts the time as late as 11:34 a.m.), drove to the club to pick up his son and arrived there at 11:35 a.m. He said his son was waiting out front. However, a teacher at the club testified that she “distinctly remembered seeing the defendant enter the Club between 11:45 and 11:50 a.m. and that his son was not outside but rather in the all-purpose room waiting for his father.”
 
Branion told investigators that after leaving the club he stopped again to pick up Maxine Brown with whom he and his wife had a lunch date. The state estimated that the drive to Maxine’s and conversation with her (during which she cancelled the lunch) took 4 minutes.
 
It took another minute or two to drive home and discover Donna’s body.
 
Assuming that the murder occurred when the shots were fired at 11:25 a.m., by his account — and that of a nurse/witness — Dr. Branion was at least a mile away from the scene of the crime.
 
However, putting aside the fact that Dr. Branion was very likely not at the scene of the crime, let’s explore the state’s theory of the crime that Dr. Branion was the killer because the crime was not committed when the neighbor heard the shots, but was actually committed sometime between the time he left the hospital and the call to the police was made.
 
The police estimated that the drive from the hospital to the club to pick up the Branion child would take between 4 and 51/2 minutes. Therefore the earliest he could arrive would be 11:34 a.m. The teacher testified that Dr. Branion took off his own coat, dressed his young son, and put on his own coat, taking 5 minutes to complete the ritual. It was then 11:39 a.m.
 
The police estimated that it took Branion somewhere between 1 and 2 minutes to drive to Maxine Brown’s office. He arrived there at 11:40 a.m. The conversation with Maxine took a maximum of 2 minutes, making the earliest he left there 11:42 a.m. The minimum drive time home was 1 minute, according to the state. Thus, according to the minimum time required to traverse the route Branion took, he could have arrived home at 11:43 a.m. — a full 14 minutes before the call was made to police.
 
The defense, however, could argue that every one of the 27 minutes between the time Branion left the hospital and the police were alerted could be accounted for by taking the nurse’s statement that he left at 11:34 as fact, and using the maximum times for each stop. The defense’s argument isn’t that far-fetched once one learns that the police timed the drive from checkpoint to checkpoint but never included the time it would take to enter and exit a car and walk to the building.
 
It is important to note that when the state presents an entirely circumstantial case like the one against John Branion, to support a conviction, it is “essential that the facts proved be not only consistent with the defendant’s guilt, but that they must be inconsistent with any reasonable hypothesis of innocence,” the Illinois Supreme Court wrote in reviewing the doctor’s case. “But the people are not required to establish it (the consistency) beyond a reasonable doubt.”
 
No one ever seems to have suggested that any one of the theories could be blown out of the water if a clock here or there was inaccurate or if the streets were more or less crowded on the day of the murder or if the initial assumption that murder occurred exactly at 11:25 a.m. was just plain wrong.
 
There was a bit more circumstantial evidence that did in Dr. Branion. After he became the chief suspect, police executed a search warrant and found a box of shells with exactly four missing (curiously, the court opinions state that the bullets were .380 caliber while D’Amato writes that they were 9mm).
 
He was having an affair with Shirley Hudson that police used as the motivating factor for Donna’s murder. Nothing else made sense. Donna’s family was wealthier than Branion’s — his best hope for wealth lay in keeping her alive (although he would have done OK by managing what their son inherited).
 
Ballistics experts determined that Donna was shot by a Walther PPK, a type of gun owned by Dr. Branion. However, when police asked him whether he had any guns capable of firing the .380 slug of the type that killed his wife, Dr. Branion did not tell them that he owned a PPK — which can fire .380 cartridges despite being a 9mm weapon. Although conclusively established as the owner of a Walther, Dr. Branion claimed it had been stolen and could not produce it. That gun, like the murder weapon, was never found.
 
On May 28, 1968, Dr. John Marshall Branion was convicted of murdering his wife.
 
Even if the evidence had been more straightforward, the scales of justice were tipped against Dr. Branion for the judge overseeing his case was crooked.
 
Judge Reginald Holzer, who presided over Branion’s trial, was eventually convicted of corruption charges as a result of the infamous Chicago Greylord investigation.
 
After the doctor’s conviction his defense counsel moved for judgment notwithstanding the verdict — essentially asking the judge to nullify the jury’s decision. Judge Holzer announced that he would take the motion under advisement.
 
At this point the rules went out the window and a free-for-all began. Justice was for sale to the highest bidder.
 
The prosecutor in the case, Patrick Tuite, apparently heard a rumor that Holzer was going to grant Branion’s motion to set aside the verdict. Violating the prohibition against ex parte communication, Tuite asked Holzer not to grant the motion but instead to allow the appellate court to decide the case.
 
Holzer called Tuite and “suggested” that he seek a continuance to answer Branion’s motion despite Tuite’s assertion than no continuance was needed. This was Holzer’s way of putting more pressure on Branion’s side to come up with money to tilt the scales of justice their way.
 
An affidavit signed by a person connected to the case states that

Nelson Brown (Donna’s brother) came to me and said that Judge Holzer was looking for a bribe. ..A couple of days later Nelson Brown told me that he was able to get $20,000 from other friends of John Branion’s, but they had imposed the condition that $10,000 be paid to Judge Holzer in advance and the remaining $10,000 would be paid to him as soon as John Branion was freed.

Several days later, the affidavit continues, “$10,000 cash was passed to Judge Holzer” at a Holiday Inn on Lake Shore Drive. Shortly after the bribe, John Branion, a convicted murderer facing life in prison, was released on $5,000 bail.
 
It turns out that Judge Holzer accepted the $10k but told Nelson Brown that he could not overturn the verdict because Tuite had gotten wind of the bribe and threatened to expose the whole setup. Instead, he would keep the ten grand and give Dr. Branion a chance to flee the country — which he did.
 
Dr. Branion fled to Uganda where he was either the personal physician to Idi Amin or a humanitarian doctor providing services to the poor. When the Idi Amin regime fell in the 1980s, Dr. Branion was put on a plane and sent back to the United States to begin a 20-to-30-year sentence.
 
His appeals failed and Dr. Branion served 7 years in prison. As Dr. Branion’s health failed, his sentence was commuted for mercy reasons and he died in September 1990 at the age 64, closing one of the most bizarre and pathetic chapters of American criminal investigation and justice ever.