'Unimaginable Mistakes' Lead To New State Supreme Court Standard For Prosecutorial Misconduct -- Reckless Behavior

By Ralph Cipriano
for BigTrial.net

An 18-year-old murder case that involved what a judge described as "unimaginable mistakes" by a veteran prosecutor, a veteran cop, and a forensic scientist has prompted the state Supreme Court to issue a landmark ruling that sets a new standard for prosecutorial misconduct.

In order to get a criminal case tossed for double jeopardy, the old standard in Pennsylvania was intentional prosecutorial misconduct egregious enough to knowingly deprive a defendant of a fair trial. But in a 32-page majority opinion issued Tuesday, the state Supreme Court set a new standard for overturning cases based on prosecutorial misconduct -- "Reckless Behavior."

The opinion was issued in the case of the Commonwealth of Pennsylvania v. Kareem Johnson, who spent nine years on death row for a murder the state Supreme Court says he shouldn't be retried for. The unimaginable mistakes that resulted in what a judge described as a "farce" of a trial begin with a mixup of evidence that convicted Johnson involving a couple of baseball caps.

The victim in the case, Walter Smith, was shot to death 12 times outside a Philadelphia bar by a gang of men, one of whom wore red clothing.  Police recovered a red baseball cap in the middle of the street approximately nine feet from Smith's body.

After the murder, Debbie Williams, a friend of Smith's who was with him the night he was killed, gave police a black baseball cap that Smith was wearing that had a bullet hole in it. When police sent the black cap to the crime lab for testing, Smith's blood was found under the brim.

The case remained unsolved until 2005 when Bryant Younger, a jailhouse informant under indictment on a federal narcotics offense, told police he heard Kareem Johnson make statements that implicated him in the murder. Police obtained a sample of Johnson's DNA and submitted it together with the red cap for testing. The testing revealed the presence of Johnson's DNA in the sweatband of the red cap.

Prosecutors proceeded under the assumption that there was one baseball cap found at the crime scene -- the red one -- and that it contained both Smith's blood and Johnson's DNA. The truth was that only the black cap had Smith's blood on it, and neither cap had DNA from both Smith and Johnson.

As a result of the DNA testing, Johnson was charged with first-degree murder, conspiracy and possessing an instrument of crime. The key piece of evidence at a 2007 trial was the red baseball cap. Unaware that there was no evidence suggesting the murder victim's blood was on the red cap, Assistant District Attorney Michael Barry repeatedly stated in his opening statement that Johnson "got in really close" to shoot Smith at point blank range, which supposedly accounted for Smith's blood being on the underside of the red cap's brim.

"I would submit, as certain evidence," Barry said, "that that that was left at the scene in the middle of the street has Kareem Johnson's sweat on it and his Walter Smith's blood on it. Based on that evidence, we come to trial."

Officer William Trenwith testified that when he recovered the red baseball cap from the crime scene, he saw drops of fresh blood underneath the cap's brim. The officer testified that he had never seen a case where blood had splattered the distance from Smith's body to where the red cap was found at the scene.

Lori Wisniewski, the forensic scientist who performed the DNA testing, stated that both the murder victim's blood and the defendant's DNA were found on the red hat.

In his closing statement, prosecutor Barry stated: "Do you know who says the killer wore the hat? Walter Smith says the killer wore the hat. He says it with his blood. There is no other way Walter Smith's blood could have gotten on the underside of this hat . . . unless the person who killed Walter Smith was standing close to him while he shot and killed him . . . So once you know that, we know this: The killer wore that hat."

Johnson was convicted on all counts and the judge imposed the death penalty. The mixup with the hats was discovered by Johnsson's appeal lawyers in 2011. The Commonwealth subsequently agreed that Johnson was entitled to a new trial, and the court entered an order to that effect in 2015. The Commonwealth also withdrew its notice of intent to seek the death penalty.

At a 2016 appeal hearing, Officer Trenwith admitted his testimony about finding blood on the red cap was based was based on a faulty assumption.

"When I testified, I was going on the assumption, which I shouldn't have done, that there was, in fact, blood on it, that's why I said it. But as far as my report is concerned, it does not state that there was actual drops of blood."

Prosecutor Barry admitted about the two hats, "That's absolutely 100 percent my fault, and I should have caught that."

In light of the screwup with the two baseball caps, Johnson's lawyers moved to bar a retrial. The Commonwealth admitted that it had made substantial errors, but said it was not the result of bad faith. Common Pleas Court Judge Benjamin Lerner characterized the prosecution's handling of the evidence as "extremely negligent, perhaps even reckless," and said it had resulted in a "farce" of a trial.

But the judge said the evidence at the appeal hearing showed that the mistakes that were made did not amount to intentional misconduct, which in Pennsylvania was the only finding that could result in a case being thrown out on the basis of double jeopardy. Johnson's lawyers then filed an appeal with the state Supreme Court.

So, in a 5-2 vote, in an opinion written by Chief Justice Thomas Saylor, the court set a new standard for throwing out cases based on double jeopardy -- reckless behavior.

Johnson's appeal lawyers were Gregory Pagano and Marc Bookman, director of the Atlantic Center for Capital Representation. Bookman could not be reached.

But for Kareem Johnson, who spent nine years on death row, there won't be any joyful homecomings. Johnson is presently serving life without parole for fatally shooting 10-year-old Faheem Thomas Childs back in 2004. The boy was walking to school when he got caught in a gunfight between rival gang members.