At sentencing, Assistant U.S. Attorney Reagan Taylor told the court that prosecutors could not be certain that it was Babb who fatally shot Brown, and that the lesser crime of assault was more appropriate.
Of the gunshots related to Brown’s death, the first seven shots were not fired by Babb, Taylor explained.
“It’s true; we cannot say which bullet killed Mr. Brown,” Taylor said.
According to the government’s proffer of facts in the case, on the morning of June 20, 2012, Babb and others were inside an apartment in the 1700 block of 17th street Southeast when they heard multiple gunshots in front of the building. Babb ran outside to see what was happening and encountered a person in a wheelchair seated in front of the building’s entrance. The man in the wheelchair handed Babb a .40 caliber semi-automatic handgun and directed him to another person who was outside.
Babb took the gun and ran across the street to the corner of his Ford Explorer truck. From that vantage point, Babb saw a man seated and slumped against a Chevy Malibu which was parked on the opposite side of the street.
Babb crouched near the corner of his truck, extended his arm toward the man, and fired the gun in his direction. After the first shot, Babb attempted to fire a second time, but the gun jammed, according to documents in the case.
Brown died at the hospital from multiple gunshot wounds. Eight .40 caliber casings were recovered from the vicinity of the incident. And Shot Spotter indicated that seven shots were fired in rapid succession at approximately 1:52 a.m. About 50 seconds later, a single shot was fired.
“This is one of the most unusual cases that I have ever seen,” Judge Thomas Motley said Friday. “The fact of the situation is, we don’t know which shot killed him. And we’ll never know the answer to that question.”
Babb’s defense attorney, Eugene Ohm, said that Babb did not find out until later that Brown had been shot. The men were close friends, Ohm said.
“I’m sorry and I hope everybody accepts my apology,” Babb said while weeping in court Friday. “I go to sleep every night thinking about what happened.”
Babb was arrested the same day Brown was killed, but only after barricading himself in an apartment and engaging in an eight hour long standoff with police. In September, three months after the shooting, he pled guilty to assault with a dangerous weapon while armed.
During pre-sentence allocution, Ohm said that Babb came forward with information about the case before anyone else. Ohm also stated that he had urged Babb to take the case to trial, but Babb refused.
“Under the circumstances, what you did afterwards is commendable,” Judge Motley said to Babb.
At sentencing, Taylor said that the plea agreement for assault with a dangerous weapon was reached because prosecutors could not prove that it was Babb who fatally shot Brown.
Sentencing documents are below.
Correction:This story originally said the government could not prove Babb was guilty of murder. It has been updated to say prosecutors couldn’t be certain Babb fired the shot that killed Brown. Further, prosecutors rejected the argument that Babb might have acted in self-defense.
The government’s sentencing memorandum has been added to the documents in this post.