RIGHTING THE SCALES
Innocent people have served decades in Pa. prisons. Here’s how to stop it from happening.
This is Part 6 of Losing Conviction, a series about homicide investigations in Philadelphia.
The shooting of Devon English was no murder mystery.
On Sept. 22, 2006, in plain view of several witnesses at 61st and Lansdowne Avenue in West Philadelphia, two gunmen opened fire on English and another teenager, Corey Ford. Ford survived. And three months later, after Ford and two other teens were arrested with guns, they told police they were on a mission to retaliate against one of the assailants. They even provided the shooters’ names.
That posed a quandary for detectives: They already had a different man in custody for killing English.
Instead of changing course, the investigators doggedly built their case against that man, Hassan Bennett, a 23-year-old from the neighborhood who was attending trucking school. Prosecutors sought the death penalty. Bennett was convicted and served 12 years in prison before his conviction was overturned. At retrial, he was acquitted.
The case, according to Bennett, was a product of a tainted system — but one whose ailments are readily diagnosed and largely curable, if only the will exists to treat them.
The condition, however, appears to be chronic: At least 80 people in Philadelphia have been exonerated of violent crimes since 1989 — 23 of them in just the last four years. That’s not counting the many others whose murder convictions were overturned but who agreed to plead guilty to lesser charges in order to be released, some after 10 years, 20 years, 30 years, or even 50 years in prison.
As the number of exonerations has topped 2,800 nationwide, there has been a nationwide movement to adopt reforms, said Rebecca Brown, policy director for the Innocence Project. Those measures — starting with preliminary investigations, interrogations, and witness interviews, continuing to discovery and trial procedures and then to post-conviction review — offer a road map to a system less prone to abuse and error.
“We have passed legislation in some of the most conservative states in the union on these very basic measures: how police conduct interrogations; regulating informants; eyewitness identifications,” she said, citing Texas and Oklahoma as states that have adopted model legislation.
“Pennsylvania has done none,” she added. “It shouldn’t surprise anyone that wrongful convictions can flourish in an environment that has not sought to reform or regulate its systems of justice.”
Lawmakers and advocates say the issue has just not been a priority in Harrisburg, where there is no dedicated lobby group focused on the issue.
A 328-page report by the Joint State Government Committee, released in 2011, proposed numerous reforms, from funding and training for defense lawyers to video-recording interrogations. Only two recommended measures — extending filing deadlines for raising new evidence after trial, and providing for post-conviction DNA testing — have been adopted.
The chairs of the Senate and House Judiciary Committees, Sen. Lisa Baker and Rep. Rob Kauffman, did not respond to interview requests submitted to their offices. Though half a dozen relevant bills have been introduced, none has received a hearing this year. Rules proposed to the Pennsylvania Supreme Court, such as one mandating open-file discovery, have languished for almost two years without action.
Yet, Marissa Boyers Bluestine, an assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania law school, is heartened that such proposals are even on the table. Whereas a decade ago there was a sense of collective denial she called “Pennsylvania exceptionalism,” now there’s at least a shared understanding that wrongful convictions happen.
“The question is do people think it’s enough of an issue to change the whole system? Do they view it as episodic instead of epidemic? That, I think, is the next hurdle.”
‘A human failing’
The detectives investigating Bennett were tenacious: They brought him in for questioning twice, each time keeping him for at least 18 hours by his estimate. They also had Ford, the 18-year-old gunshot victim, transported directly from the hospital to the Homicide Unit, where he spent 10 hours, much of it handcuffed to a bench, he alleged. Another suspect, 16-year-old Lamont Dade, was there eight hours without a parent or lawyer.
Both Ford and Dade signed statements implicating Bennett. Both later recanted, alleging Detective James Pitts assaulted them, striking Ford on his wounded leg and slamming Dade’s head onto the table. Each said Pitts told him that if he signed the papers, he could go home. But Pitts denied ever having struck a witness or suspect, or fabricated a statement. And Detectives Henry Glenn and Levi Morton testified that Pitts wasn’t even present for the interviews. It was left to a jury to determine the truth.
Bennett views his case as the type of wreck bound to happen in a system devoid of guardrails.
Some protections have since been instituted by Philadelphia police: requiring investigators to inform witnesses that their participation is voluntary; adopting evidence-based protocols around eyewitness identification procedures, such as requiring an officer without knowledge of the case to administer photo arrays; requiring a supervisor’s approval for interrogations that exceed 12 hours; and mandating video-recording of interrogations.
Those are important steps, since more than 60% of DNA exonerations in homicide cases involved false confessions — and one analysis found 84% of false confessions occurred after at least six hours in custody.
But those reforms are not enshrined in state law, leaving defendants with no recourse if directives are ignored.
Some lawmakers have sought to address that. One measure, currently proposed in the state House, would make it illegal for police to lie to suspects, for instance by falsely claiming to have evidence against them. Another would establish statewide eyewitness identification rules, and would pave the way to record all interrogations by suspending the state’s wiretap law.
Bennett’s case highlights the need for recording witness interviews as well.
But Nilam Sanghvi, legal director of the Pennsylvania Innocence Project, said recording custodial interrogations would be an important first step that may be ”palatable” to a bipartisan coalition. The Pennsylvania District Attorneys Association also supports increased recording of interrogations, though its executive director, Greg Rowe, said any mandate “would need to reflect the needs and technological realities of each municipal police department.”
At the same time, policymakers should recognize that a videotaped confession is an extremely persuasive piece of evidence, said Christopher Kelly, a professor of criminal justice at St. Joseph’s University. So, he said, rules should ensure those recordings capture the entire interaction with police, and provide for video to be reviewed by an expert in false confessions.
Other important measures can’t be addressed by legislation.
For one, Kelly said, departments should shift training away from the “Reid method,” the accusatorial interrogation approach favored by American law enforcement. Kelly, who has conducted research for the federal interagency High-Value Detainee Interrogation Group, advocates a rapport-building approach, asking open-ended questions, rather than manipulation or instilling fear.
“Reid is very good at getting people to confess. It’s also very good at getting innocent people to confess. That’s the problem,” he said.
Once you rush to judgment, your mind gets set and it’s very hard to change it.”
Even more basic — and elusive — is how to address a contributing factor to most wrongful convictions: errors in thinking.
“One of the worst things that seems to precipitate a lot of other errors is rushing to judgment,” said Kim Rossmo, a Texas State University criminologist and former police officer. “Once you rush to judgment, your mind gets set and it’s very hard to change it. Confirmation bias kicks in and you’re no longer looking dispassionately at the evidence. … It’s a human failing.”
The first step to addressing that is raising awareness. The second step? That’s less obvious. In search of solutions, he’s sought funding to study the traits of the best detectives.
While Bennett was still in the Homicide Unit, he alleged in court filings, detectives tried one more tactic to get him talking. They placed him in a cell with a man who would later say Bennett had admitted to the murder. The snitch’s story provided probable cause for a warrant to search Bennett’s home for the murder weapon (though the search was fruitless).
The informant would also become the only witness who continued to accuse Bennett at trial, while denying he’d been promised any benefits. Bennett took to counting aloud the inconsistencies in his testimony, at one point tallying 22.
Jailhouse informants have become a trope in wrongful convictions — and, according to a Northwestern University analysis, were the leading contributor to cases resulting in death-row exonerations.
A prominent Philadelphia example is John Hall, who gave information in 12 homicide cases, including Walter Ogrod’s prosecution for the murder of 4-year-old Barbara Jean Horn.
Ogrod was exonerated in 2020 after decades on death row. Court filings in his case showed that even prosecutors who relied on Hall recognized his credibility issues — and struggled to piece together the extent of his history as a criminal and cooperator.
Several states have responded with measures to establish databases of jailhouse informants and the benefits they received. It’s a step any DA’s office could adopt independently but one that advocates say would be even more potent if undertaken on a statewide level, as Connecticut has done. (In Pennsylvania, it could be established by the governor, Pennsylvania Innocence Project executive director Nan Feyler said. Her organization has raised the idea, but Gov. Tom Wolf has not acted on it.)
Others, such as Illinois, have begun to require pretrial hearings on the credibility and admissibility of informants. And some states, including California, order judges to instruct juries on the unreliability of such informants. Pennsylvania’s Supreme Court could choose to adopt such rules.
The promise of open-file discovery
Bennett was convicted of first-degree murder in 2008. It took an additional seven years before he found out that Ford was arrested with a gun three months after English was killed — and learned that Ford’s friends had told police whom they were hunting and why.
The name of that alternative suspect and the details of the revenge plot were among several pieces of evidence that Bennett says should have been disclosed. In his view, it all supported Ford’s recantation of his statement against Bennett. “They used it to find Corey [Ford] guilty, but they didn’t provide me with it,” Bennett said. “They are ignoring Ford when you already had the evidence that what he was telling was the truth.”
Police and prosecutors failing to disclose significant evidence has been a factor in almost every exoneration in Philadelphia in the last four years, an analysis by the District Attorney’s Conviction Integrity Unit found.
That’s why Bluestine believes reforming the discovery process, during which evidence is turned over, might be the most important step to prevent wrongful convictions.
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“As a single-bullet measure, open-file discovery has the ability to eliminate issues that have led to 23 out of 26 exonerations in Philadelphia alone,” she said. Under current rules, prosecutors only have to turn over evidence that is both exculpatory and material to the outcome of a case. “Only by eliminating that aspect can you eliminate the possibility that anything exculpatory is withheld.”
In Brown’s view, that disclosure should also include police disciplinary records — including all citizen complaints, whether sustained or not. (In Philadelphia, only 14% of such allegations are sustained by Internal Affairs.) Pitts, one of the detectives who handled Bennett’s case and who has since been placed on desk duty, has been the subject of 11 citizen complaints and five internal investigations.
At least half a dozen states have already adopted open-file discovery policies. A Pennsylvania Supreme Court committee proposed similar discovery rules two years ago, but the court has not acted on that proposal.
Last October, DA Larry Krasner instituted his own open-file policy — a first for Philadelphia. “The biggest difference is that everything should be turned over, regardless of whether a prosecutor may think it’s relevant,” said Michael Garmisa, interim supervisor of the DA’s Conviction Integrity Unit.
Right now, he acknowledged, the rollout is not complete, in part because it requires a new, cloud-based management system to accommodate the vast amount of evidence. Another hurdle: coordinating that work with the Police Department, which has pushed back on the DA’s disclosure requests in the past.
‘The reality’ of post-conviction review
From a state prison cell, Bennett began working on his case anew. The odds, in many ways, were stacked against him.
Pennsylvania has a strict one-year deadline for bringing new evidence into court. And even meeting the deadline is no guarantee: If the court finds the evidence could have been obtained sooner, the petitioner is “time barred.”
Bennett said that system is deeply flawed, failing to account for the grueling psychological and logistical realities of prison.
“Your first two or three years, you’re clogged up, just digesting that [life] sentence,” he said. “It’s hard to focus on anything — let alone learn something that has other languages incorporated into it.”
Added to that are the limits of law library access: just five hours a week in his experience. Bennett found an unconventional workaround: He’d argue with a correctional officer and get himself sent to the restricted housing unit. “In the hole,” he said, “whatever I ordered from the law library, they’re going to copy everything I need and bring it back to me. They would let me hold those documents for the whole week.”
“Your first two or three years, you’re clogged up, just digesting that [life] sentence. It’s hard to focus on anything.”
The state Supreme Court has taken some steps to increase post-conviction access. In 2020, the court discarded its long-standing presumption that information already in the public record is accessible to petitioners. Its decisions have helped pave the way to review cases based on discredited forensic science, such as around arson investigations and shaken-baby syndrome, the Pennsylvania Innocence Project’s Sanghvi said.
“I think what we’re seeing from the Supreme Court now is a much better understanding of the reality of the criminal justice process in Pennsylvania,” she added.
However, the court has so far not adopted rules proposed by both the Joint State Government Committee and the American Bar Association requiring prosecutors to promptly disclose any exculpatory evidence that surfaces after trial.
And the most consequential post-conviction reforms so far have occurred at the local level, through the establishment of DA’s conviction integrity units. Philadelphia’s CIU has backed more than two dozen exonerations (though Bennett’s case was not among them).
At least two other counties and the Pennsylvania attorney general have announced their own conviction integrity units. However, none of those has completed an exoneration, according to the University of Michigan’s National Registry of Exonerations.
The district attorneys of Philadelphia’s collar counties — Kevin R. Steele in Montgomery County, Deb Ryan in Chester County, Jack Stollsteimer in Delaware County, and Matt Weintraub in Bucks County — did not grant interviews or respond to questions about whether they supported open-file discovery, or whether they had taken other measures to investigate possible wrongful convictions.
Instead, they provided a joint statement saying, “We focus our resources on the front end of prosecutions, making sure that the right person is charged for the crime in order to prevent wrongful convictions.”
The statement said the offices “all strongly support the work of the Attorney General’s Conviction Integrity Unit. Since the unit’s inception last year, many offices have referred cases. In the cases our offices have referred, to date, no grounds for overturning the cases have been found.”
A spokesperson for Attorney General Josh Shapiro said his statewide CIU, which is staffed by two attorneys, had received only one referral from a DA since the unit was announced in February 2020.
“Our office doesn’t have jurisdiction for these cases and referrals are required to continue the review,” the spokesperson noted.
‘I was dragged along’
In 2017, after Bennett argued his defense lawyer had been ineffective for failing to obtain and present exculpatory evidence, his conviction was overturned. In 2019, he went on trial yet again — for the fourth time, counting two mistrials along the way. Dissatisfied with his court-appointed lawyer, he represented himself.
He wore his prison uniform in court. He opened with the Sesame Street song “One of These Things (Is Not Like the Others).” What did he, at the time of the crime a 23-year-old man in trucking school, have to do with a beef among teenagers?
After 81 minutes of deliberation, the jury returned an acquittal — and Bennett was released after 12 years in prison.
Though 37 states have passed laws providing for compensation to exonerees, Pennsylvania has not. (There’s a bill proposing to change that in Harrisburg, but even its prime sponsor, Rep. Chris Rabb of Philadelphia, acknowledges it is unlikely to pass in the current climate.)
For now, Bennett is working for the Defender Association of Philadelphia as a bail navigator — and suing the city for malicious prosecution.
Looking back, he can see how systemic failures drove this outcome.
One is the decades-old problem of inadequate defense, compounded by the fact that Pennsylvania remains the only state providing no funding to public defenders. In Bennett’s view, he had ample defense evidence — he was on the phone at the time of the murder, and had phone records and alibi witnesses to show that — but it was never presented.
Another is the system’s failure to discipline prosecutors who are found to have withheld evidence or committed other misconduct. None of the Philadelphia assistant district attorneys who handled cases resulting in exonerations since 2018 has been the subject of public disciplinary action by the Pennsylvania Supreme Court’s Disciplinary Board. They’re also entitled to absolute immunity from civil litigation.
Yet another is the opaque police internal affairs system that rarely rules against officers and, even when it does, keeps those findings secret.
“Each step of the way, I felt I was dragged along through the system,” Bennett said.
Now, in his work with the public defender, he tries to educate his clients on how to navigate that system, protect themselves, and contribute to their own defense.
“No one provided me any information,” he said. “That leads to wrongful convictions.”