 Andrew Swainson with attorneys Nilam Sanghvi (left) and Nathan Andrisani (right)
Officer John Kay heard gunshots and saw Paul Presley running down the street. Kay captured Pressley, who was bleeding from his left hand and had blood on his coat. Two other men, Ashley Hines and Jeffrey Green, also were quickly arrested. All three were charged with aggravated assault and other charges.
The following day, January 18, Opher died at the hospital. He never identified who shot him, saying, ”they shot me in my back.”
Detective Manuel Santiago, the lead detective on the case, interviewed numerous people who were familiar with the drug operation. One of them, Jacqueline Morsell, provided names of people who worked there, including 22-year-old Andrew Swainson, though she did not implicate him in the shooting. Morsell gave a nine-page statement that included information about three others involved in the operation, including Jeffrey Green, and two men she knew as “Dred” and “Indian.”
Morsell said that a week earlier, Opher got into an argument with Dred over not being paid. During the argument, she said, Dred threated to shoot Opher. Morsell said she saw Dred inside the house with shotguns, rifles, a 45-caliber pistol, an Uzi, and a revolver. When police showed her a 12-gauge shotgun that was found in the snow outside the house, she said she’d seen Dred cleaning it in the living room of the drug house. Morsell also said she’d seen Indian with a sawed-off shotgun. Green, according to Morsell, formerly sold drugs out of the house, but more recently was buying drugs there.
On January 22, 1988, Swainson voluntarily submitted to an interview. He gave his fingerprints and agreed to be photographed, as he had never been arrested before. He denied any involvement in the crime. He said he met Opher in September 1987 when he first moved to Philadelphia and lived with him for a couple of weeks near 57th and Spruce Streets.
Swainson said at the time of the murder, Opher and Dred were working and living in the house on Sansom Street and both were dealing drugs from there. Swainson said that on the night of the crime, he and his brother went to the house, but neither Opher nor Dred answered the door. Swainson said he then went to a club at 57th and Market Streets.
Swainson said that the following day, he thought the house had been raided by police. When he called a woman who previously had warned him “to be careful” because the house was going to get robbed, he learned that Opher had been killed. Before leaving the police station, Swainson provided his home address, the address of his mother in New York City, and his place of employment.
On February 10, 1988, the prosecution withdrew the charges against Presley, Green, and Hines. Two days later, Detective Santiago interviewed Presley, who said he had spent the evening before the shooting with a girlfriend, drinking alcohol and ingesting cocaine. He said he took a bus to the drug house to buy more drugs, arriving at about 3 a.m. Presley said he was on the porch when two men whom he had never seen before shot Opher. The only description Presley gave was that one of the men had brown skin. Santiago’s report said that Presley identified a photograph of Swainson as one of the gunmen.
On February 15, Santiago obtained an arrest warrant for Swainson. On February 19, Swainson’s sister told Santiago that Swainson traveled to Jamaica on February 11 to get married and that he would be returning. Nonetheless, the detectives declared Swainson a fugitive and obtained an unlawful flight to avoid prosecution warrant.
On March 8, 1988, Swainson called Santiago to report that he had returned from Jamaica and was at his parents’ home in the Bronx. Santiago did not tell Swainson a warrant had been issued. Instead, Santiago turned the case over to the fugitive squad and on March 9, Swainson was arrested in New York. He was charged with first-degree murder, criminal conspiracy, and possession of an instrument of a crime.
On April 14, 1988, at Swainson’s preliminary hearing, Presley testified that Swainson was not the gunman. He said he could not identify him because Swainson was “red-skinned” while the gunman was “brown-skinned” and “darker complected.” Despite the testimony, Swainson was ordered held for trial based on Presley’s photo identification.
On June 10, 1988, Presley met with a defense investigator and signed an affidavit saying that Swainson was not the gunman because the shooter was “much darker” skinned.
Nearly a year later, in February 1989, Detective Santiago interviewed Presley twice. Santiago reported that Presley said he did not identify Swainson at the preliminary hearing because he believed Swainson was responsible for Presley being assaulted while in jail. Two days before the preliminary hearing, a jail inmate named James Brown broke Presley’s jaw by hitting him with a wooden bench. Presley said his statement to the defense investigator was false and that he made it because the investigator had threatened and bribed him.
On March 9, 1989, Swainson went to trial in Philadelphia County Court of Common Pleas. The prosecution’s primary witnesses were Presley and Morsell. No physical or forensic evidence connected Swainson to the murder.
Presley testified that he was “certain” Swainson was the gunman and said he had “no problem” selecting his photograph. Presley said that at the time of the preliminary he feared for his life because of the attack that broke his jaw.
Presley said that he was in jail because he had been arrested on a misdemeanor drug possession charge.
The prosecutor, assistant district attorney Judith Rubino, asked Presley if he had “any kind of deal, any kind of any arrangements made to you in exchange for your testifying in this case?” Presley said he had not.
During cross-examination, Presley admitted that Brown told prison officials that he attacked Presley because Presley had stolen Brown’s shoes.
Morsell’s testimony differed significantly from her initial statement. She told the jury that Swainson had a reputation for being “pistol happy” and that he was nicknamed “Blood” because he bragged about killing people.
She said she had seen Swainson cleaning the sawed-off shotgun that was used to kill Opher. There was no mention of Dred or that Dred had threatened Opher. Morsell said that Swainson and some of his associates were worried that Opher was going to quit working at the drug house and that he might become an informant. She also testified that Swainson had called her and said that the murder had gone as had been planned.
Detective Santiago testified that Swainson was a fugitive, so he had turned over the arrest duties to the Fugitive Squad. Detective Michael Cohen, a member of that squad, testified that he obtained the unlawful flight warrant while Swainson was in Jamaica.
During closing argument, Rubino argued that Swainson murdered Opher because he was angry that Opher was going to leave the drug operation. Rubino emphasized that Presley had no incentive to testify and that Swainson had fled to avoid arrest—demonstrating a consciousness of guilt.
On March 21, 1989, the jury convicted Swainson of first-degree murder, criminal conspiracy, and possession of an instrument of a crime. He was sentenced to life in prison without parole.
The Pennsylvania Superior Court upheld the convictions and sentence in 1990. In 1991, the Pennsylvania Supreme Court denied a petition to appeal.
Swainson filed a state petition for relief from his convictions in January 1993. He also filed a federal petition for a writ of habeas corpus in February 1993. In March 1993, his state petition was dismissed because the federal habeas case was pending. In July 1993, the federal habeas case was dismissed. In August 1993, he refiled his state petition for relief, which was dismissed in 1997.
In December 1999, Swainson refiled his federal habeas petition. It was dismissed in 2002. In April 2004, Swainson sought DNA testing, but that was denied in March 2006.
In 2007, Presley, during an interview in a New Jersey prison with a defense investigator, said his testimony was false. In 2008, he provided a sworn statement saying that his trial testimony that he picked Swainson’s photograph out of a photographic array was false—he had been shown several photos of just Swainson. He said that Rubino, the prosecutor, told him that Swainson was wanted for several murders and that Presley had to identify Swainson. He said that he knew “in his heart” that Swainson was not involved because the shooter was a dark-skinned African American while Swainson was a light-skinned Jamaican.
Presley said that the defense investigator had not bribed or threatened him to recant prior to trial. He said that Rubino told him to testify falsely that was what happened to provide an explanation for the pre-trial recantation. Presley also said that Rubino had promised to drop his pending criminal charges and help him find a job.
At about the same time, James Brown, the inmate whose attack on Presley was said to be orchestrated by Swainson to keep Presley from testifying, came forward. Brown said he attacked Presley because Presley was flirting with a female guard that Brown liked and because Presley had stolen Brown’s had stolen Brown’s Valium.
Based on this new evidence, Swainson filed a second petition for relief in December 2008. However, that petition was denied without a hearing.
In 2014, Nathan Andrisani, one of Swainson’s pro bono attorneys from the law firm of Morgan, Lewis & Bockius LLP, discovered that prior to Swainson’s trial, the prosecution had charged Presley with felony drug charges under the name of Kareem Miller. The charges had been filed to keep Presley in Philadelphia because he was wanted in New Jersey for a parole violation. Immediately after Swainson’s conviction, the prosecution had dismissed the drug charges and Presley was released on bail for the parole violation.
In July 2014, Morsell recanted her trial testimony, saying none of it was true. She said that after the murder, she and her son lived with Opher’s mother, Tina Davis, and other Opher family members. She said that Davis forced her to falsely testify or she and her son would be kicked out of the house and left homeless. She said that at time, she was physically abused by other Opher family members and was forced to engage in prostitution.
In August 2015, Swainson filed a third petition for relief citing Morsell’s recantation and the evidence of the prosecution’s undisclosed case against Presley under the name of Kareem Miller. For the next few years, the prosecution said the claim that Presley had been charged as Miller was “pure speculation.”
In June 2017, Swainson’s legal team, which now included attorney Craig Cooley and Nilan Sanghvi of the Pennsylvania Innocence Project, got a portion of the prosecution’s homicide file in the case from lawyers representing Anthony Wright. In 1993, Wright had been wrongly convicted of murder, rape, and robbery and sentenced to life in prison without parole. His conviction was based on a false confession obtained by Detective Santiago and two other detectives, Martin Devlin and Frank Jastrzembski. Wright was granted a new trial after DNA testing of the rape kit from the victim revealed the DNA profile of a Philadelphia drug dealer who had since died.
Wright was acquitted in August 2016 following a retrial that revealed how the detectives had falsely claimed that the victim’s clothing was found in Wright’s room. Wright then filed a federal civil rights lawsuit against the Philadelphia police department. The lawsuit claimed that the prosecutor at the retrial, Bridget Kirn, allowed Santiago and Jastrzembski, who by then had retired, to testify falsely about their knowledge of the DNA testing.
The Swainson homicide file contained documents never before disclosed by the prosecution, including:
--Detectives had the name of alternative suspects, including one who had been charged with murdering a drug dealer and who would later be murdered himself by a drug dealer;
--Jeffrey Green and Ashley Hines, who were initially charged with Presley in the attack on Opher, both failed polygraph examinations when they denied knowledge of the murder;
--Evidence that Opher was shot in a robbery attempt; and
--The existence of other witnesses, including one who was with Opher until 1:30 a.m. on the morning of the murder, and another who heard shots, saw two men holding shotguns, and heard someone yell, “Let’s get out of here.”
In February 2018, Swainson’s lawyers asked the Philadelphia District Attorney’s Conviction Integrity Unit to review Swainson’s case. The entire homicide file was ultimately turned over to Swainson’s lawyers. The files revealed conclusively—and the prosecution conceded—that Presley was charged under the fictitious name of Kareem Miller. The entire file essentially confirmed the claims that Swainson had been making during the nearly 30 years since he was convicted.
In November 2019, Swainson’s lawyers filed yet another amended petition for relief. This petition was based on all of the newly disclosed evidence, as well as the evidence that had developed over the years, such as the recantations. Presley died in 2009 and Morsell refused to speak to the prosecution. The files showed that detectives knew that Swainson had gone to Jamaica without any knowledge of a warrant and that he was never a fugitive as the prosecution argued at trial.
On February 20, 2020, Swainson’s lawyers and Andrew Wellbrock, an assistant district attorney in the Conviction Integrity Unit, filed an agreed statement of facts outlining the evidence that was not disclosed to Swainson prior to his trial. In addition, a joint motion was filed requesting that Swainson’s convictions be vacated. The motion said that the prosecution had failed to disclose evidence, allowed witnesses (including detectives) to testify falsely, presented false evidence, and made false arguments to the jury.
On June 12, 2020, Common Pleas Court Judge Shelley Robins-New vacated the convictions and Swainson was released. On June 18, 2020, the charges were dismissed.
In addition to Swainson and Wright, four other murder convictions tied to Santiago or Devlin have been vacated following reviews by the Conviction Integrity Unit.
In October 2019, Willie Veasy was exonerated of a 1992 murder in Philadelphia. He had been convicted in part because of a false confession obtained by Devlin and fellow detective Paul Worrell. In June 2020, Walter Ogrod
was exonerated and released from Pennsylvania's death row. He had been convicted in Philadelphia of the murder of a four-year-old based on a false confession obtained by detectives Devlin and Worrell.
In August 2021, Santiago, Devlin and Jastrzembski were charged with perjury and other crimes for their conduct in the investigation and prosecution of Wright. Philadelphia County District Attorney Larry Krasner said Santiago and Devlin had coerced what was a clearly false confession from Wright. He said Santiago and Devlin used “unlawful tactics in order to coerce Wright” into signing the confession. Krasner said they prevented him from reading what he had signed, had made false promises that he could go home if he signed the document and made violent threats toward him.
Krasner said Jastrzembski lied under oath about finding the bloody clothing that linked Wright to the crime while searching his room. Krasner said the clothes were actually found at the victim’s house.
In June 2022, Swainson filed a federal civil rights lawsuit against Santiago and other police officers seeking compensation for his wrongful conviction.
– Maurice Possley
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