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The Philly DA’s office promised an aggressive Conviction Integrity Unit. Judges have pushed back.

"We were dealing on the one hand with an illegal sentence: Can’t we just fix that?" said Patricia Cummings. "And we got a prompt not only, ‘No,’ but also, ‘Hell no,’ and the case was dismissed.”

Patricia Cummings, head of the Philadelphia District Attorney's Conviction Integrity Unit.
Patricia Cummings, head of the Philadelphia District Attorney's Conviction Integrity Unit.Read moreJames Blocker / File Photograph

It will be a decade in April since a federal judge, after hearing evidence in the case of Terrance Lewis, ruled that he appeared to be innocent of the 1996 murder of Hulon Howard in West Philadelphia — but that for procedural reasons, his conviction and life sentence could not be overturned.

Lewis had pinned his last hopes for exoneration on the district attorney’s Conviction Integrity Unit, which investigates potential wrongful convictions and last year called his case a priority for review. But last week, Lewis told a judge he’d given up hope after the CIU investigation stalled.

“I am literally, physically sick about this decision I had to make,” Lewis said in an email. Withdrawing the petition paved the way for Lewis to be resentenced under a separate claim. But it also foreclosed the possibility of clearing his name.

Kevin Harden, who represents Lewis, said the CIU’s hesitation was in part a reaction to a Pennsylvania Supreme Court decision last October rejecting the district attorney’s attempt to overturn a death sentence secured by a prior administration on the basis of “prosecutorial discretion.”

“That informs all the work everyone is doing with regard to post-conviction issues, because the courts have an independent duty to maintain the finality of judgments," Harden said.

A year into Krasner’s tenure, his ambitious Conviction Integrity Unit — charged with both investigating problematic convictions and reversing unjust sentences — has repeatedly found its agenda stymied by a cautious judiciary.

CIU director Patricia Cummings on Monday said she believed the pushback in part reflected a lack of trust in Krasner’s administration.

“We’re getting scrutiny because of Larry Krasner being who he is, and because we have made it clear that this is a priority," she said. "Some judges think we’ve gone rogue or we’re renegades, and that we’re going to come in and undo convictions when the law doesn’t support that.”

Krasner spokesperson Ben Waxman said that under Cummings' leadership, the CIU has brought five cases to court. In two, murder convictions were thrown out. But in the other three, judges blocked attempts to overturn convictions or vacate sentences — even ones prosecutors believed were clearly illegal.

Speaking to a group at the University of Pennsylvania in November, Cummings was blunt: “We start off with what we think is very low-hanging fruit. We think, ‘This is easy.’ We were dealing on the one hand with an illegal sentence: Can’t we just fix that? And we got a prompt not only ‘no,’ but also, ‘Hell no,’ and the case was dismissed.”

She added that the message from judges seems to be: “Who are you to come in and try to undo what we’ve been doing for years?."

It’s a level of pushback national experts say is nearly unprecedented.

“Where you have a prosecutor on board to move to vacate a conviction, usually the judges are going to go along with it," said Barbara O’Brien, a professor at Michigan State University College of Law and editor of the National Registry of Exonerations. "This really is, I think, new territory.”

Still, Marissa Boyers Bluestine, executive director of the Pennsylvania Innocence Project, chalked the conflict up to an “adjustment period.”

“You have some judges who have been on that court for 20 years and … now it appears to their ears that they are being asked to do things that are improper," she said. "It’s a matter of assuring them that ‘just because we’re taking a position that is not as draconian as our predecessors' doesn’t mean we’re not following the law.’”

Unexpected hurdles

The District Attorney’s Office first created a CIU in 2014. Krasner expanded the unit almost as soon as he was sworn in, recruiting Cummings — who ran a similar unit in Dallas — tripling the staff, and extending the scope beyond simply reviewing claims of “actual innocence.”

The CIU now has seven prosecutors, two paralegals, and one special assistant. In Krasner’s first year in office, the CIU completed initial assessments of 690 cases submitted by inmates, Waxman said; 583 of those await further review. An additional 100 submitted by attorneys remain open pending investigation.

That flood of applications reflected high hopes among prisoners and the defense bar. But the office has run into unexpected challenges.

In one instance, the CIU supported a claim by Stacey Culbert that his 20- to 40-year prison sentence for third-degree murder was illegal because the crime took place in 1994, when the maximum sentence was 20 years.

The law changed in 1995 to allow for longer prison terms; Culbert was not sentenced until 1998. The CIU agreed with Culbert’s appellate attorney, Alan Tauber, that applying the new law retroactively was illegal.But last October, Common Pleas Court Judge Genece Brinkley dismissed Culbert’s petition as untimely.

For the same reason, Brinkley also rejected a CIU petition to vacate the first-degree murder conviction of Salvatore Chimenti.

Chimenti, after he was convicted in 1984, told prosecutors that his lawyer had gotten witnesses to commit perjury. The District Attorney’s Office at the time offered Chimenti a deal, according to court documents: If the allegations could be proved, prosecutors would allow him to plead guilty to a lower charge.

The office ultimately corroborated the perjury claims, the filing says — but did not honor its agreement with Chimenti. CIU staffer Andrew Wellbrock wrote in a court filing that Chimenti has served “more than a decade in prison beyond what his maximum sentence of incarceration should have been.”

In a third case, the CIU agreed with appellate attorneys for Jamal Wright, who had argued his trial attorney failed to interview a key witness. They said Wright’s first-degree murder conviction should be vacated so he can be allowed to plead guilty to third-degree murder with a sentence of to 17 to 34 years.

Wright’s codefendant had been granted a nearly identical deal in 2017, and a federal judge in May ordered the state court to impose the agreement in Wright’s case. But Common Pleas Judge Kathryn Streeter Lewis said she could not act until the federal court made “a determination on the merits” of Wright’s case.

That matter remains pending in federal court. In the other two cases, the District Attorney’s Office has appealed.

Cummings' CIU did manage last year to vacate two murder convictions. Waxman said the unit assisted with the effort to vacate Dontia Patterson’s conviction in May, which the District Attorney’s Office said had been secured via “egregious” misconduct by former prosecutors.

In December, Common Pleas Court Judge Steven Geroff threw out Jamaal Simmons’s third-degree murder conviction. Prosecutors did not explain their reasoning in backing the dismissal, but the initial case was investigated by disgraced former Detective Philip Nordo.

Unresolved questions

Teri Himebaugh, a defense lawyer, said she met with the CIU last August to discuss what she believed was a pattern of misconduct by homicide detectives.

“They’ve at least given us the hope that there will be a … thorough review," she said. "Prior to that, I would’ve laughed if someone told us to go to the DA’s Office.”

Himebaugh said she hasn’t heard if there’s been progress, and the office has declined to say whether it is conducting any systemic probes.

Meanwhile, some lawyers who have decades-old cases in the CIU’s queue complain of the office’s opacity.

Susan Burt-Collins, who has urged the CIU to take up the case of Naeem Jones for more than a year, has grown frustrated.

“The innocence cases, they’re just sitting there,” she said.

Jones was convicted of shooting 29-year-old Stephen Bartley in 2006 outside a South Philadelphia bar. Though there were several eyewitnesses, not one testified against Jones.

The only evidence against him came from statements to former Detective Ronald Dove, who pleaded guilty in 2017 to evidence-tampering and lying to authorities in helping his girlfriend evade murder charges.

One man who testified at trial claimed Dove had coerced him into giving a statement.And a witness, Charles Waters, said Dove offered to toss out Waters’ criminal charges in a different matter if Waters signed a statement implicating Jones. When Waters refused, he claimed Dove told him, “I’ma get somebody else to sign it.”

Dove said he did not recall the case but called Waters' account “ridiculous.”

Jones' most recent petition was dismissed. But Burt-Collins believes that if the CIU were to investigate, police and district attorney files on Dove could yield exculpatory evidence.

Waxman said prosecutors have spoken with Burt-Collins “repeatedly.” And although Cummings did not respond to specific complaints, she said that much of last year was spent managing an existing case backlog and laying groundwork.

“I hope, at the end of year two, we will be able to update the statistics, and show we’ve been in court on a lot more cases,” she said.