| On February 12, 2004, a shoot-out erupted near an elementary school in Philadelphia, Pennsylvania. After an extended gun battle, 10-year-old Faheem Thomas-Childs was fatally wounded and a school crossing guard was shot in the foot.
Two days later, police arrested 19-year-old Kareem Johnson and 19-year-old Kennell Spady. Ultimately, they were charged with first-degree murder and aggravated assault as well as firearms violations.
In 2005, while they were awaiting trial, Bryant Younger, who was under indictment on a narcotics charge, told authorities that he overheard Johnson making statements that implicated himself in the December 15, 2002 murder of 39-year-old Walter Smith.
Smith had been shot 12 times in the head, neck and shoulders outside a tavern in the Grays Ferry neighborhood of South Philadelphia. Police believed Smith was targeted because he had implicated Clinton Robinson in the murder of Margaret Thomas earlier that year. On August 31, 2002, Thomas was struck by a stray bullet fired during a dispute among some men who were gambling. One of the gamblers was Smith, who was shot in the hand. He later implicated Robinson as the gunman. With Smith dead, Robinson pled guilty to manslaughter and was sentenced to two and a half years in prison for the death of Thomas.
Shortly after Smith’s shooting, police interviewed Debbie Williams, a friend who was with Smith that night. She said that when she and Smith left the bar, there were seven to 10 people on the sidewalk. As she walked to the passenger door of Smith’s van, he walked to the driver’s side. A young black man wearing a baseball cap ran past her in front of the van. She then heard shots and ducked down. When the gunfire ended, she said she saw the same youth run away. Williams said she ran around the van and found Smith’s body. Next to him was his black baseball cap with a bullet hole in it, which she picked up. She turned it over to police at the station.
At the scene, police recovered a red Air Jordan baseball cap about nine feet from Smith.
Both caps were submitted for DNA testing. Although the caps had separate inventory numbers, only one report was made. The sweatband of the red cap was found to have DNA belonging to several people, one of them being Johnson. The blood on the black cap belonged to Smith, according to the report.
In April 2006, Johnson and Spady were convicted of murder, aggravated assault, and firearms charges in the school shooting. Both were sentenced to life in prison.
In June 2007, Johnson went to trial in Philadelphia County Court of Common Pleas on charges of first-degree murder, conspiracy, and possessing an instrument of a crime for Smith’s murder. The prosecution sought the death penalty.
Younger testified that he overheard Johnson tell Spady in the jail that if it weren’t for Johnson’s actions, Robinson would not be getting out of prison. Younger admitted that he came forward in the hope of obtaining leniency and that in fact a life sentence for dealing drugs had been cut to 10 years. “I was trying to save my ass,” he testified.
Younger said he saw Johnson re-enact the shooting after telling Spady that “he went to the bar, that he was going to pop him at the bar,” but then Smith came outside, so that’s where the shooting occurred. Younger said Johnson, who was laughing, raised his right hand and began making noises miming gunshots. When pressed during cross-examination, Younger admitted that Johnson never mentioned Smith’s name or the name of the tavern, but spontaneously offered, “He said he shot the [obscenity].”
The prosecution’s primary evidence, however, was the red cap. For reasons that would never be fully explained, the prosecution proceeded on the theory that the DNA test results were based only on the red cap. The black cap was never mentioned at the trial—not by police and not by the crime lab analyst. The prosecution did not request a report that would have reflected a list of the items tested and the results of those tests.
Laurie Wisniewski, the analyst who performed the DNA testing, testified that Smith’s blood and Johnson’s DNA were both found on “the hat” and did not mention the existence of two hats.
Police officer William Trenwith testified that when he recovered the red cap from the scene, he saw fresh blood underneath the cap’s brim. He said he had never seen a case in which blood had spattered the distance from Smith’s body to where the cap was found—indicating to him that the person who wore the cap had fired his weapon much closer to Smith than where the cap was recovered.
Johnson’s lawyers accepted the prosecution’s version as accurate and never challenged the theory that only one hat was recovered and tested, even though the prosecution had read Williams’s statement to police to the jury. In that statement, she said she had picked up Smith’s hat from the street. That statement did not prompt anyone to consider whether there were two hats.
During closing argument, the defense contended there were no eyewitnesses to the shooting, that the DNA test results linking Johnson to the hat were equivocal, and that there were DNA profiles on the sweatband other than Johnson.
The prosecution argued that based on Wisniewski’s testimony, the odds of the DNA coming from someone other than Johnson were unrealistic. The prosecutor told the jury: “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 onto 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.”
The prosecutor added: “This is the killer’s hat. The crime scene tells you that. The physical evidence tells you that…Physical evidence has no bias. Physical evidence cannot lie…It is just out there. It is there and it says what it says…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.”
On June 25, 2007, the jury convicted Johnson of first-degree murder, conspiracy, and possession of an instrument of a crime. He was sentenced to death. His conviction and sentence were upheld on appeal in 2009.
In 2011, during a post-conviction investigation by the Philadelphia Federal Defender Capital Habeas Unit, the defense filed an open-records request. The police crime lab reported that two hats—one black and one red, each with different inventory numbers—had been analyzed. Smith’s blood was found only on his hat—not on the red hat that contained Johnson’s DNA. As a result, in 2015, the prosecution agreed that Johnson’s convictions should be vacated and that he should have a new trial. Subsequently, the prosecution withdrew its notice of intent to seek the death penalty.
Attorney Marc Bookman from The Atlantic Center for Capital Representation then took over the case and sought to bar a retrial, arguing that the presentation of the evidence in such a distorted fashion was sufficient to bar a retrial under the double jeopardy principle.
During a hearing that spanned several days in 2015 and 2016, numerous witnesses testified. The trial prosecutor, Assistant District Attorney Michael Barry, asserted that he had made several significant errors. “I should have realized the property receipts were different,” he testified. “That’s absolutely, 100 percent my fault and I should have caught that.”
Officer Trenwith, who processed the crime scene and testified at the trial that he personally saw fresh drops of blood on the red cap, conceded that he never mentioned that fact in his report and never photographed the hat in a way that would have shown the fresh blood.
“When I testified, I was going on the assumption, which I shouldn’t have done, that there was in fact blood on it,” Trenwith said. “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.”
The defense showed that the prosecution at trial never questioned why a single hat would have two separate inventory numbers or investigated whether the existence of two inventory numbers meant there were two caps.
During argument on the motion after the hearing, Judge Benjamin Lerner, who did not preside over Johnson’s trial, said it was “unfathomable to me to believe that what Officer Trenwith saw on the hat were, quote, fresh drops of blood. It’s unfathomable not only because it’s not referred to on the [report] he made out, it’s unfathomable because here is an experienced crime scene investigator who’s taking pictures, which include pictures of the hat—at every point where there’s a picture of the hat taken, the hat is in the position it was on the street—brim down. If you’re a first-year investigator and you have seen fresh drops of blood on the hat, you’re going to at least in one picture flip the hat over and make sure there’s a picture of that.”
Bookman argued that the errors committed by the police, crime lab and prosecution, whether an intentional subversion of the truth-seeking process or recklessness, were such that the prosecution should be barred from seeking a retrial.
In March 2016, Judge Lerner denied the motion to bar a retrial, agreeing with the prosecution that while substantial errors had been made, none was made in bad faith and none was intentional. Because he found no intentional misconduct, the law did not allow him to grant the motion, Judge Lerner said.
The judge said that “to turn this gross series of almost unimaginable mistakes by experienced police officers and an experienced prosecutor into the kind of bad faith
intentional misconduct that would permit a judge to bar further prosecution I would have to disbelieve completely all of [Assistant District Attorney Michael] Barry’s testimony about what he did, what he didn’t do, why he did what he did, why he didn’t do
what he didn’t do.
During his ruling, Judge Lerner personally addressed Officer Trenwith. “I am 100 percent certain, sir that you did not see, when you first looked at that cap, what you really or reasonably thought were, quote, fresh drops of blood, unquote, because I know your work,” he said. “And I know that there would have been a lot more evidence with regard to that cap and a lot more detail in the property receipt if you actually thought at the time that that’s what you had seen.”
The judge, however, said he was certain that it was “extremely possible” that “no one, not Officer Trenwith, certainly not Assistant District Attorney Barry, understood there were two separate hats. The judge said the trial was a “farce” and contained a “gross series of almost unimaginable mistakes by experienced police officers and an experienced prosecutor,” but that what happened was not the kind of bad faith intentional misconduct that required barring further prosecution.
The defense appealed and in June 2018, the Pennsylvania Superior Court upheld the trial court ruling. The defense appealed again and on May 15, 2020, the Pennsylvania Supreme Court reversed the lower court ruling and barred a retrial.
The court held that prosecutorial “overreaching” sufficient to invoke double jeopardy protection includes “misconduct which not only deprives the defendant of his right to a fair trial, but is undertaken recklessly, that is, with conscious disregard for a substantial risk that such will be the result.” The ruling was a significant expansion of Pennsylvania law relating to double jeopardy issues.
With that case dismissed, Johnson remained in prison serving a life sentence for the school shooting. A post-conviction motion challenging the evidence in that case was pending.
– Maurice Possley
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