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Pennsylvania Supreme Court Announces Reckless Prosecutorial Misconduct Constitutes Overreaching Sufficient to Trigger Double Jeopardy Protections

In 2002, Walter Smith told police that Clinton Robinson killed Margaret Thomas. Later that same year, Smith was shot 12 times and killed outside a bar in Philadelphia. Moments after Smith was shot, his companion, Debbie Williams, went to him and picked up his black baseball cap that was lying in the street with a bullet hole in it. After the police arrived, they took Williams to the police station to give a statement. At the station, Williams gave the black baseball cap to Detective Burns and told him that Smith had been wearing it when he was shot.

The cap was assigned property receipt number 2425291. (A property receipt is a typed report that contains information about the item, including a description and the results of any forensic analysis. The property receipt number functions as a computer database key to enable prosecutors and police to view this information.)

Testing of the black cap at the crime lab revealed the presence of Smith’s blood under the brim. A red baseball cap was also found lying in the street 9 feet from Smith’s body. Officer William Trenwith photographed the red cap at the scene and recovered it as evidence. The red cap was assigned property receipt number 9001070.

The case remained unsolved until Bryant Younger, a jailhouse informant seeking leniency on his drug convictions, told police in 2005 that he overheard Kareem Johnson state that he (Johnson) had killed Smith to prevent him from testifying against Robinson. Police obtained a DNA sample from Johnson and submitted it along with the red cap for testing. The testing revealed that Johnson was one of the contributors of DNA found in the red cap’s sweatband. Johnson was charged with capital murder.

Because the prosecutor did not request the criminalistics report from the crime lab that details the different evidence submitted for testing and the results of those tests, the Commonwealth proceeded to trial on the assumption that there was only one baseball cap – the red one –  containing both Smith’s blood and Johnson’s DNA.

In his opening statement, the prosecutor said that Johnson “got in real close” to shoot Smith at point-blank range because “the hat that was left at the scene in the middle of the street has Kareem Johnson’s sweat on it and has Walter Smith’s blood on it.” Then Trenwith testified that when he recovered the red cap from the scene he saw drops of fresh blood underneath the cap’s brim.

Lori Wisniewski, the forensic scientist who had performed the DNA testing, also testified for the Commonwealth, stating that Smith’s blood and Johnson’s DNA were both found on “the hat.” And in closing argument the prosecutor said: “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.... [And] DNA evidence ... says, hey, this is Kareem Johnson’s sweat on the sweatband, he is the major contributor, the very hat that has Walter Smith’s blood on the brim.”

The jury convicted Johnson, and he was sentenced to death. His judgment was affirmed on appeal.

Pursuant to an open-records request filed in conjunction with a petition under the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, a forensics report was generated in 2011 that showed a red hat and a black hat were analyzed and that Smith’s blood was found only on the black hat. The Commonwealth then agreed that Johnson was entitled to a new trial, and the court entered an order to that effect.

Johnson then filed a supplemental discovery motion seeking to develop evidence to support a motion to bar retrial based on double-jeopardy principles and prosecutorial overreach. The common pleas court held a hearing on the motion that spanned several days. The prosecutor admitted that he made mistakes but denied they were intentional or that he intentionally sought to deprive Johnson of a fair trial. He admitted that two differing property receipt numbers should have prompted him to investigate and that he should have obtained a criminalistics report before bringing a capital case. Trenwith stated that he had testified to seeing blood on the red cap because he was “going on the assumption” the blood was there based on the forensic scientist’s testimony at the preliminary hearing.

Based on the testimony at the hearing, Johnson moved to bar retrial. In ruling on the motion, the judge said “it is unfathomable to me to believe that what Officer Trenwith saw on the hat were, quote, ‘fresh drops of blood.’” The judge based his statement on the fact that Trenwith had made no notes or documentation of observing blood on the red cap and on the fact that Trenwith – an experienced crime-scene investigator – took no photographs of the underside of the cap, which he most certainly would have done if he had observed blood on the cap’s underside. The judge also said it was “more than negligence” that the Commonwealth took a capital case to trial “without even awaiting a full criminalistics DNA analysis.”

But the judge credited the prosecutor’s testimony and concluded that “this gross series of almost unimaginable mistakes by experienced police officers and an experienced prosecutor” wasn’t intentional. Finding that Johnson’s trial had been a “farce,” but that the prosecutor hadn’t acted in bad faith, the judge denied the motion to bar retrial. Johnson took an interlocutory appeal of the denial, and the Superior Court affirmed. The Pennsylvania Supreme Court then granted Johnson discretionary review.

The Court observed that “[b]efore September 1992, Pennsylvania’s double jeopardy protections had been viewed as coextensive with those of the Fifth Amendment in light of ‘identical textual and policy considerations.’” Commonwealth v. Simons, 522 A.2d 537 (Pa. 1987). The Double Jeopardy Clause “protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense.” United States v. Dinitz, 424 U.S. 600 (1976). The Clause protects a defendant’s interest in having his fate decided by his first jury. Id.

Prior to the U.S. Supreme Court’s decision in Oregon v. Kennedy, 456 U.S. 667 (1982), prosecutorial overreaching – misconduct intended to provoke a defense motion for mistrial or actions otherwise taken in bad faith to deprive the defendant of a fair trial – triggered double-jeopardy protections and barred a subsequent trial. Lee v. United States, 432 U.S. 23 (1977). But in Kennedy, the U.S. Supreme Court ruled that the “overreaching test” was unworkable and further ruled that the Fifth Amendment bars retrial only when the government’s actions were “intended to goad the defendant into moving for a mistrial.”

The Pennsylvania Supreme Court subsequently concluded that the double jeopardy clause of the Pennsylvania Constitution applies broader protections than the Fifth Amendment, holding that Pennsylvania’s Constitution “prohibits retrial of a defendant 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.” Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). Because of the interest that the public has in a reasonable expectation that those charged with crimes will be prosecuted, barring retrial is an extreme sanction that must be limited to only those cases where the actions of the Commonwealth were particularly egregious. Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001).

The Court recognized that many other jurisdictions have departed from strict adherence to the Kennedy rule, instead defining overreach as when the prosecutor’s prejudicial misconduct was done with either knowledge of or indifference to a significant risk of mistrial or reversal on appeal. (See opinion for collection of cases from various states.) These other jurisdictions have essentially reasoned that such conduct by the prosecutor contravenes one of the main objectives of double jeopardy protections, viz., a defendant should not have to choose between (1) having his fate decided by his first jury notwithstanding that the proceedings were infected with serious errors or (2) enduring a new proceeding from the beginning with the expense, anxiety, and disruption and with the government in a better position to marshal evidence and anticipate defense strategy. The test should focus on the effect of the prosecutor’s misconduct regardless of intent. State v. McClaugherty, 188 P.3d 1234 (N.M. 2008).

The Pennsylvania Supreme Court concluded that “[u]nder Article I, Section 10 of the Pennsylvania Constitution, 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.”

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