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January 25, 2021

Capital Murder Charges Dismissed for Three Pennsylvania Prisoners

Philadelphia DA Larry Krasner, and Conviction Integrity Unit Assistant DAs exit the courtroom after Walter Ogrod's petition for relief was granted.

Philadelphia DA Larry Krasner, and Conviction Integrity Unit Assistant DAs exit the courtroom after Walter Ogrod's petition for relief was granted.

Image Courtesy of the Philadelphia District Attorney's Office

Over the course of the year, three Pennsylvania prisoners have had their capital murder convictions overturned. In each case, prosecutors did not, or could not, seek retrial. Walter Ogrod was exonerated in June after 30 years on death row. The exoneration followed a review by the Philadelphia District Attorney Conviction Integrity Unit, which found that the conviction was based on false testimony from jailhouse informants, unreliable scientific evidence, and Mr. Ogrod’s confession following over eight hours of interrogation. DNA testing using new methods in January 2020 provided additional proof of the lack of physical evidence connecting Mr. Ogrod to the crime. The district attorney’s office moved the state court to drop all charges.

Two other death-sentenced prisoners also had their charges dismissed after courts found prosecutorial misconduct had both tainted their convictions and barred retrials under state law. Kareem Johnson was convicted and sentenced to death in 2007, for a shooting death that had taken place two years prior when he was 18 years old. The police investigation included two pieces of evidence: a red baseball cap with DNA from Kareem and other individuals, recovered near the crime scene outside a bar, and a black baseball cap that the victim’s friend turned over to police after retrieving it from next to the victim’s body directly following the shooting. The black hat had blood on it that was found to contain the victim’s DNA. At trial, the Commonwealth’s primary evidence was the red hat, which multiple law enforcement witnesses testified contained both Kareem’s DNA and the victim’s blood. The separate DNA profile found on each hat was thus conflated into one inculpatory piece of evidence; the existence of the second hat was never mentioned or disclosed. It was not until a 2011 records request by federal habeas counsel that the police crime lab report analyzing the two different hats was uncovered. In 2015, the prosecution agreed that the conviction should be vacated, though based only on trial counsel’s ineffective assistance.

A hearing on whether the prosecutorial misconduct should preclude retrial followed. Though he deemed the trial a “farce” characterized by a “gross series of almost unimaginable mistakes by experienced police officers and an experienced prosecutor,” Philadelphia County Court of Common Pleas Judge Benjamin Lerner found that the failures did not rise to the level of the bad-faith intentional misconduct needed to bar retrial. Prior to 2020, the controlling Pennsylvania law on the matter was Commonwealth v. Smith, which in 1992 had expanded the interpretation of the Pennsylvania Constitution’s double jeopardy clause to prohibit retrial “not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.”

However, in May 2020 the Pennsylvania Supreme Court reversed the lower court ruling and set a landmark new standard, holding in Commonwealth v. Kareem Johnson that “prosecutorial overreaching sufficient to invoke double jeopardy protections includes misconduct which not only deprives the defendant of his right to a fair trial, but is undertaken recklessly, that is, with a conscious disregard for a substantial risk that such will be the result.” The court found that this recklessness standard had been satisfied by the Commonwealth’s conduct in Kareem’s case, and remanded with instructions to bar retrial. Kareem, who remains incarcerated on an unrelated non-capital conviction, is the sixth Pennsylvania death row exoneree from Philadelphia. All six exonerations have involved official misconduct.

After 23 years in prison, another Pennsylvania prisoner—Roderick Johnson—also saw his conviction vacated due to prosecutorial misconduct and the charges dismissed on double jeopardy grounds. On October 29, 2020, Berks County Court of Common Pleas Judge Eleni Geishauser ruled that Roderick’s original convictions were unconstitutional and that a retrial was prohibited. He was subsequently released.

Roderick was convicted of capital murder and sentenced to death in 1997 for the shooting deaths of two cousins the year before. As he sought post-conviction relief in the state courts, he also pursued relief from an unrelated homicide conviction for which he had been sentenced to life imprisonment in 1998. In federal habeas proceedings, the U.S. District Court for the Eastern District of Pennsylvania ordered the Commonwealth to disclose any evidence bearing on its relationship with repeat witness George Robles. The Commonwealth produced five previously undisclosed police reports that detailed a history of Mr. Robles acting as a police informant in exchange for avoiding drug-related charges.

In 2010, Roderick amended his pending capital post-conviction state petition to allege that Berks County District Attorney Mark C. Baldwin, the elected top prosecutor who handled the trial, violated Brady v. Maryland by withholding these police reports that could have been used by trial counsel to impeach Mr. Robles, who had served as the main Commonwealth witness. In 2013, Berks County Judge Scott D. Keller overturned the conviction and granted Roderick a new trial due to this prosecutorial misconduct. Affirming Judge Keller’s decision in 2017, the Pennsylvania Supreme Court called the misconduct “egregious” and the withheld documents “textbook impeachment evidence,” recounting Mr. Robles’ central role in the Commonwealth’s case. The Eastern District of Pennsylvania court also granted federal habeas relief in the non-capital case, as Mr. Robles’ testimony had featured heavily in obtaining that conviction as well.

I'm grateful that I'm home. I'm grateful that I'm still alive and I'm grateful for this opportunity to tell my story and hopefully make a difference and help some.

Roderick Johnson

In 2019, Roderick filed a motion to dismiss the charges in both cases, arguing that any retrial was barred according to the prohibition against double jeopardy. Judge Geishauser, to whom both cases were assigned following Judge Keller’s retirement, found the misconduct was comparable to the deliberate action at issue in Commonwealth v. Smith and “far exceeded” the recklessness standard recently set by Commonwealth v. Kareem Johnson. Judge Geishauser found “no doubt” as to whether former District Attorney Baldwin made a conscious and intentional choice not to disclose the reports. In addition, the judge stated that Mr. Baldwin’s position as district attorney insulated him from censure, whereas a witness would have been charged with obstruction of justice and a defense attorney would have faced professional consequences if they had acted similarly. “We reiterate the American Bar Association’s standard that prosecutors have a duty to seek justice and not merely convict . . . Justice was not served here,” Judge Geishauser wrote.

Roderick’s pro bono co-counsel, Steptoe & Johnson attorney Patrick F. Linehan, stated in response to the ruling, “This a great day for Roddy and his family. Justice here was way overdue, and we are elated about Judge Geishauser’s decision.” Upon his release, Roderick  said, “I'm grateful that I'm home. I'm grateful that I'm still alive and I'm grateful for this opportunity to tell my story and hopefully make a difference and help some.”

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After Nearly 30 Years on Death Row, All Charges Against Walter Ogrod are Dismissed

In June 2020, Pennsylvania death row prisoner Walter Ogrod had all charges against him dropped. Mr. Ogrod served nearly 30 years on death row for a murder he claimed not to have committed and despite no evidence linking him to the crime. Mr. Ogrod was freed after a Philadelphia Conviction Integrity Unity reviewed his case and uncovered unreliable evidence, prosecutorial misconduct, and due process violations.