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Attorney returns to manslaughter case

The attorney who represented manslaughter defendant Erik Low through two trials stemming from the 2003 shooting death of Michael Hirschey has agreed to lead Low’s defense in what will likely be a third trial in the case.

Ken Brown will defend Low on a pro bono basis. His reappearance in the case comes a little more than a month after Judge Bruce Lubeck appointed a public defender in the case.

Low at the time, however, wanted Brown to remain his attorney, and there were brief courtroom arguments about whether Brown could be appointed as Low’s public defender. That arrangement was denied, with Lubeck saying he could not do so because Brown was not a public defender holding a contract with Summit County. Brown had indicated he would serve in a public-defender role at a reduced rate from his normal billing.

Lubeck had appointed Paul Quinlan as Low’s public defender. Brown on Nov. 3 filed papers with the Third District Court indicating he returned as Low’s attorney. In the filing, Brown says he will represent Low on a pro bono basis if Summit County funds the preparations for a trial. Brown bases the request on Low’s indigent status. Lubeck has not ruled on the funding request.

Brown’s re-emergence in the case comes as a key court date for Low approaches. A preliminary hearing is scheduled Nov. 24. After a preliminary hearing, which resembles a trial, the judge decides if there is enough evidence to bind a defendant over for trial.

Prosecutors must meet a lower standard during a preliminary hearing to convince a judge to bind someone over for trial than they do to win a conviction in an actual trial. The attorneys are scheduled to appear before Lubeck on Monday in anticipation of the preliminary hearing.

"At the end of the day, you have to say, OK, what’s the right thing to do here. I didn’t feel particularly good about sending him on his way," Brown said.

Brown estimated it could have cost Low nearly $100,000 to retain him for a third trial. Low was "appreciative" once Brown informed him he would take the case on a pro bono basis, according to Brown.

Low shot and killed Michael Hirschey in a Kearns Boulevard apartment in 2003 after a night of partying and roughhousing. Low’s side has maintained since the shooting that he was defending himself when he shot Hirschey twice. Prosecutors contend Low intentionally killed Hirschey.

A first trial resulted in a hung jury on a murder charge. The jury in the second trial convicted Low of manslaughter. On appeal, the Utah Supreme Court tossed out the manslaughter conviction on a technicality. Key witnesses in the case have included Low, another man in the apartment at the time of the shooting and forensics experts.

Low, 40, is incarcerated at the Summit County Jail. Bail is set at $250,000, cash only.

Brown said he is better qualified to defend Low than a public defender since his involvement dates to before the first trial. In a September interview Quinlan said likewise, claiming he would not have been as prepared for a trial as Brown would have been.

"I know the case. I’ve tried the case twice," Brown said.

Summit County Attorney David Brickey, who led the prosecution in the two trials, called Brown "a brawler" and a "fighter." Brown’s decision to take the case on a pro bono basis surprised him. Brickey said Brown will provide "good representation" for Low, but he does not intend to change the prosecution’s strategy.

"Erik trusts Ken Brown. It’s clear Erik wanted somebody he trusted. He wants Ken Brown," Brickey said.


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