Mark Whitaker, 49, has no car, no job, no home of his own, and lately he’s had anxiety attacks. But he was smiling the other day as he sat at his mother’s living room table in North Philadelphia, savoring something he hasn’t had for 17 years — freedom.
On May 6, a Philadelphia Common Pleas Court jury acquitted him of taking part in a 1999 robbery turned murder inside a Fishtown strip club.
Whitaker had been tried once before, in 2003, and found guilty even though no physical evidence linked him to the crime scene, and even though the main eyewitness against him picked his photo from a lineup 3½ years after the slaying. That witness, facing robbery charges, changed a key element of his story from what he had told detectives on the fatal night.
Whitaker, who always maintained his innocence and never stopped investigating the crime that sent him to prison for life without parole, persuaded a federal judge last June to throw out his conviction and grant him a new trial because the trial prosecutor had improperly referred to a police statement from a codefendant whom Whitaker was never allowed to question.
Before this month’s retrial, Whitaker rejected a plea deal offered by the District Attorney’s Office, which would have allowed him to go free but remain on probation for 17 years and be a convicted murderer for life, his lawyer said. His mother, Virginia Whitaker, 78, said she regrets initially telling him to take the deal. “I mentioned it, but then I was so embarrassed, I took it back,” she said. “I said, ‘I’m going to stand with him in the fight.’”
“There are no words to describe the relief that I felt, to go into that again and not take none of the deals that were offered to me,” Whitaker said. “To finally have justice done is amazing.”
Whitaker’s jury returned its verdict the same afternoon that another jury in the same building acquitted Hassan Bennett, who represented himself in his fourth trial for a 2006 murder. The two men join a growing nationwide community of former prisoners convicted of slayings who’ve been freed after successfully challenging their convictions, often with newly found evidence.
Since 1989, according to the National Registry of Exonerations, more than 934 people in the United States have been exonerated of murder, including 30 from Philadelphia. Whitaker’s case has not yet been listed.
Such reversals are becoming more common due to the proliferation of nonprofit innocence organizations often run by law schools and conviction integrity units set up by local prosecutors, including Philadelphia District Attorney Larry Krasner, according to registry editor Barbara O’Brien, a law professor at Michigan State University.
“If you think about how many convictions there are every year, it’s extremely unusual to be exonerated once you’re convicted, which isn’t necessarily a bad thing if the conviction is proper,” she said.
“The concerning question is: How many innocent people have been convicted, and what portion of them are being exonerated? We have absolutely no way to know, because the only time we know if someone has been wrongly convicted is if they are exonerated.”
The road to exoneration is difficult, she noted, because it’s often hard for convicts to find lawyers who believe in them and who will take their cases, while lost and destroyed evidence dashes the chances for freedom for others. “There’s a lot of luck involved in getting exonerated, which shouldn’t be the case,” she said.
Kenneth Mirsky, Whitaker’s lawyer in both trials, said this is the first time in his 45-year career that he has won an exoneration in a murder trial. “This is a very unusual situation,” he said. “It was a good outcome to be released after all this time. He’s not a young man anymore, but he still has a number of years ahead of him to get his life back together.”
The Jan. 26, 1999, armed robbery and slaying that upended Whitaker’s life took place inside the Happy Days Bar, a strip club at Front Street and Girard Avenue in Fishtown that’s long gone. Whitaker said he’d never been in the place and knew nothing of the crime that left bartender Mario Lim, 36, dead of a gunshot wound to the head, and customer Thomas Zingani, 42, shot in the back and chest and paralyzed.
But somehow, 3½ years later, in April 2002, Whitaker was whisked to an interrogation room with bloodstained walls at Police Headquarters, he recalled. Thomas Ceneviva, a bar customer who was dating a bartender who was Zingani’s sister, had chosen Whitaker’s picture from a lineup as the third suspect responsible for the bloodletting. In four previous statements, Ceneviva said there were only two robbers, and he never identified Whitaker, whose photo was in police files due to prior arrests.
Whitaker said he recalled a detective asking where he had been at 7 p.m. Jan. 26, 1999. “I said, ‘You’re kidding? You got to be kidding.’ He said that I was involved in a robbery and murder, and they had fingerprints of me all over the place,” said Whitaker, who later learned that the detective was lying about the fingerprints.
“I knew right then and there that this was going to be bad. I knew I had never been in the Happy Days Bar, period, at any time, for any reason.”
Whitaker has enjoyed reconnecting with friends and family, including his daughter, Cache, 28. But he hasn’t done much celebrating. He spent Memorial Day at his mother’s home, where he’s been living since his release.
He has not started job-hunting, he said. “I have anxiety attacks. My heart starts racing, and it feels like I’m boxed in. Other than that, I’m just not ready to be out and take a chance on going too far. I try to stay close,” said Whitaker, who at the time of his arrest had a job moving patients around Penn Presbyterian Medical Center.
Whitaker said he still finds it hard to believe that he was sent to prison for a crime he did not commit and that he is finally free. “I was working,” he said. “I lost my job, my family, I lost everything. You just came in and snatched my life. You kidnapped me. So I’m always a little bit in fear. I’m glad that nowadays they have cameras and phones to be able to track down things.”
The Rev. David Smith, interim pastor of Wayland Temple Baptist Church at 25th Street and Cecil B. Moore Avenue, recalled inviting Whitaker to participate in a mentoring program for ex-inmates and asking him to text his mailing address.
“And he was like, ‘I wasn’t around with this texting thing.’ Right there, that says exactly what we need. We have to help people who have been out of standard culture to acclimate,” Smith said.
Whitaker’s greatest resentment is reserved for Ceneviva, a career criminal with 21 arrests in Florida and in Montgomery and Bucks Counties and Philadelphia, who testified against him in both trials. He was facing two DUI charges when he testified at this month’s trial. The prosecution’s case rested heavily on Ceneviva’s testimony, and this time the jury did not believe him.