PA Supreme Court: Reckless Introduction of False Evidence Bars Retrial of Wrongfully Convicted Defendant

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that the Pennsylvania Constitution’s Double Jeopardy Clause bars a retrial where the original conviction was based on false evidence and prosecutorial misconduct occurred in the form of prosecutors acting recklessly with respect to seeking the admission of the false evidence. This is an important case which sharpens the teeth of PA’s Double Jeopardy Clause and which provides some accountability for prosecutors who introduce evidence at trial that turns out to be false.

The Facts of Johnson 

In Johnson, the victim, Walter Smith, told the police that a man named Clinton Robinson had killed a woman named Margaret Thomas. Later that year, Smith was shot and killed outside of a Philadelphia bar. Based on the ballistics evidence, police believed that there were multiple shooters. Police also found a red baseball cap near Smith’s body.

Debbie Williams, a friend of Smith’s, went to the police station and made a statement to Philadelphia police. She claimed that as they left the bar, there were numerous people outside on the sidewalk or in the street. A man who was wearing a red article of clothing pushed past her towards Smith. She heard shots, so she ducked, and she did not see the shooting. She then saw people run away. After the gunshots, she saw the person who had been wearing the red hat run past her, as well. She went to Smith’s body and picked up his baseball hat, which had a hole in it. The police arrived soon thereafter and took her to the station. She gave the hat to the police.

The case was not solved until 2005. In 2005, a jailhouse informant named Bryant Younger, who was under indictment in a federal drug case, told police that he heard the defendant, who was also in custody, make statements implicating himself in Smith’s murder. The police obtained the defendant’s DNA and compared it to DNA recovered from the red hat. They found that there was a match. 

The Commonwealth then somehow got confused and failed to realize that there were two hats – a red hat which was found in the street, and a black hat which Smith had been wearing. The black hat had been tested and in fact had Smith’s blood and DNA on it, and the red hat had the defendant’s DNA on it. But somehow the Commonwealth believed that there was one hat with both men’s DNA on it. The Commonwealth arrested the defendant and charged him with first-degree murder, conspiracy, and possessing an instrument of crime. The case went to trial, and at trial, the Commonwealth’s crucial piece of evidence was the red hat with the DNA on it.  

However, due to the Commonwealth’s apparent confusion, the prosecutor argued that the shooter, who was wearing the red hat, must have gotten in close to Smith and shot him, leading both to his own DNA being on the red hat as well as Smith’s blood. This was wrong because Smith’s blood was not actually on the red hat; it was on the black hat.

Nonetheless, the DNA analyst also testified that Smith’s blood and the defendant’s DNA were both found on “the hat.” The defendant’s attorney somehow never challenged the underlying premise that there were two hats. He argued that the DNA may not have been reliable and that no one actually saw the defendant commit the shooting. The prosecution emphasized that the decedent’s blood was on the same hat as the defendant’s DNA in closing argument. The jury convicted, and the court sentenced the defendant to death. 

The Post-Conviction Relief Act Litigation 

The defendant eventually filed a PCRA Petition after his attorneys uncovered the fact that there had been two hats and the decedent’s blood was only on the black hat. The Commonwealth agreed that the defendant should receive a new trial and also agreed not to seek the death penalty. The court granted a new trial. 

Discovery Motions and Double Jeopardy Motions

The defendant then began filing discovery motions based on the finding of the two hats. The motion eventually evolved into a motion to dismiss on double jeopardy grounds due to prosecutorial misconduct in introducing false evidence – the false evidence being that there was only one hat. This led to various evidentiary hearings at which the prosecutors and detectives involved in the original trial had to testify. It quickly became clear to the court that the Commonwealth had not intentionally misstated the evidence but had gotten confused and believed that there was only one hat. Some police officers, however, had also exaggerated the evidence if not completely misstated it. 

Following the evidentiary hearing, the defendant moved to dismiss the case. One officer had exaggerated the extent to which he saw blood stains on the red hat, and the other detectives and prosecutors believed that there was only one hat despite the fact that the Commonwealth clearly had two hats in its possession with separate property receipt numbers. He argued that regardless of whether the mistake was intentional or reckless, he had to spend nine years on death row, and the case should therefore be dismissed. The Commonwealth agreed that mistakes were made, but it argued that the mistakes had not been intentional, so it should be permitted to retry the defendant. 

The trial court denied the motion to dismiss on double jeopardy grounds. It found that the Commonwealth had acted recklessly, not intentionally, and because the Commonwealth had not acted in bad faith, the double jeopardy clause did not apply. It did, however, permit the defendant to appeal prior to the re-trial by finding that such an appeal would not be frivolous.  The Superior Court affirmed, and the defendant appealed further to the Pennsylvania Supreme Court. The Supreme Court accepted the case and reversed the conviction.

The Supreme Court’s Ruling

The Court barred the prosecution of the defendant and dismissed the charges against him.

First, it accepted the trial court’s findings that prosecutors had not acted intentionally but had acted either recklessly or with gross negligence. They had not conspired to deprive the defendant of a fair trial, but they had made so many inexplicable mistakes that the mistakes rose to a level of more than just ordinary negligence.

Second, the Court found that the Pennsylvania Constitution provides greater protections than the United States Constitution. Federal appellate courts have found that the United States Constitution requires intentional misconduct in order for the double jeopardy clause to apply and bar a retrial. But the Supreme Court found that Pennsylvania’s Constitution bars a retrial where the first conviction was vacated as a result of prosecutorial misconduct that occurred recklessly.

The purpose of the double jeopardy clause is not only to penalize prosecutorial error, but also to protect citizens from the embarrassment, expense, and ordeal of a second trial for the same offense. It should also prevent compelling them to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent they may be found guilty.

When the government engages in improper actions sufficiently damaging to undercut the fairness of a trial, it does not matter much to the defendant whether the prosecution did it on purpose. Therefore, the double jeopardy clause applies to bar retrial both when the prosecution acts intentionally as well as recklessly. Because the prosecution here clearly acted recklessly, the Commonwealth could not re-try the defendant, and the Court dismissed the case. 

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PA Superior Court: Prosecutors May Introduce Evidence that Defendant and Recanting Eyewitness Were Incarcerated Together

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, holding that the trial court properly permitted the Commonwealth to introduce evidence that the defendant and an eyewitness who later recanted were incarcerated in the same prison before trial together in order to suggest that the eyewitness recanted out of fear of the defendant. The Superior Court allowed this testimony despite the fact that the there was no concrete evidence to show that the defendant and the eyewitness had communicated while they were incarcerated together or that the defendant had pressured the witness in any way.

The facts of Commonwealth v. Thomas

Philadelphia Prosecutors charged the defendant in Thomas with first degree murder, carrying a firearm without a license (VUFA Sec. 6106), and possessing an instrument of crime. The jury found him guilty, and the trial court immediately sentenced him to the mandatory life in prison without parole on the murder charge as well as an aggregate 4.5 to 12 years of incarceration on the other charges.

The evidence at trial showed that the defendant, the decedent, and a group of other men were playing dice in Philadelphia. At some point during the game, the men concluded that the decedent was cheating. One player angrily walked away from the game, but the defendant told him that he was going to handle it. Witnesses testified that later, while the decedent was bending over to roll the dice, the defendant pulled a gun and shot at him from behind, causing the decedent to fall to the ground. The defendant then shot him two more times in the face. Two of the witnesses who testified that the defendant committed the murder were a man named K.F. and a man named E.M. Philadelphia Police responded to the scene and transported the decedent to the hospital, where he was pronounced dead.

Although K.F. gave a statement to police indicating that the defendant committed the murder, K.F. later recanted that statement and wrote a letter claiming that it was not the defendant who actually committed the murder. In response, prosecutors introduced evidence at trial that K.F. and the defendant were incarcerated at the same jail two months prior to trial. The defense attorney objected on the basis that telling the jury that the defendant was incarcerated would suggest to the jury that the defendant was a criminal, but the trial court overruled the objection and allowed the prosecution to introduce the evidence despite this potential for unfair prejudice against the defendant.  

The Superior Court Appeal

After the jury convicted the defendant, he appealed to the Pennsylvania Supreme Court. As one of the main issues, he claimed that the trial court erred in admitting the evidence that he and K.F. were incarcerated in the same prison at some point prior to the trial and K.F.’s recantation. K.F. had previously claimed in a video-taped statement that he watched the defendant shoot and kill the decedent. However, K.F. was subsequently arrested on unrelated charges of his own. Within one month of his arrest and incarceration in the same jail as the defendant, K.F. wrote a letter recanting his video-taped statement. Therefore, the Commonwealth argued that the incarceration in the same jail was relevant to show both the defendant’s consciousness of his own guilt and to explain why K.F. recanted his prior statement.

On appeal, the Superior Court agreed. It recognized that the courts have long recognized that any attempt by a defendant to interfere with a witness’s testimony is admissible to show a defendant’s consciousness of guilt. Additionally, the Commonwealth may cross-examine a witness in an attempt to show that there are reasons, such as fear or intimidation, why a witness may have changed his or her story. Therefore, the Commonwealth’s cross-examination of K.F. was relevant to show both the defendant’s potential consciousness of guilt and why K.F. may have changed his statement.

At the same time, the court recognized that there could be some prejudicial effect to informing the jury that the defendant was incarcerated prior to trial. However, the court found that the trial judge sufficiently eliminated the risk of unfair prejudice to the defendant by providing a cautionary instruction. In the instruction, the trial judge informed the jury that the jury should not consider the defendant to be a bad person or a person of bad character merely because he had been arrested and incarcerated pending trial. The judge made it clear to the jury that the only reason the defendant was in jail was because he was awaiting trial for this case, not because he was serving a sentence on some other case. The judge further instructed the jury not to draw any conclusions whatsoever from the mere fact that the defendant was in jail pending trial. Therefore, the Superior Court found that the trial court properly allowed the prosecution to ask these questions. It found the defendant’s other issues waived and upheld the conviction.

The court’s opinion, of course, completely ignored the fact that it was the Commonwealth’s fault that the defendant and the witness were held in the same jail. Philadelphia has at least four county prisons in which a defendant can be held while awaiting trial, and the jails have procedures by which inmates can be held separately from each other so that they do not have contact with each other. Prosecutors have the ability to house inmates in different counties or states when necessary and routinely do so. Here, the case suggests that the Commonwealth did nothing to inform the prison that the two inmates should be housed in different facilities. The Commonwealth also appears to have introduced no evidence that the two inmates actually came into contact with each other while incarcerated or that the defendant did anything to make the witness change his story. Nonetheless, the Superior Court seems to have ignored these basic facts in finding in favor of the Commonwealth.

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