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Mistaken DNA interpretation sends death-row case to retrial

When Kareem Johnson killed Walter Smith outside a North Philadelphia nightclub, prosecutors said, he shot him at such close range that Smith's blood splashed onto Johnson's red Air Jordan baseball cap.

Kareem Johnson was sentenced to death in 2007.
Kareem Johnson was sentenced to death in 2007.Read more

When Kareem Johnson killed Walter Smith outside a North Philadelphia nightclub, prosecutors said, he shot him at such close range that Smith's blood splashed onto Johnson's red Air Jordan baseball cap.

That cap helped convict him.

"That hat that was left at the scene in the middle of the street has Kareem Johnson's sweat on it and has Walter Smith's blood on it," Assistant District Attorney Michael Barry told jurors. "DNA is a witness. It is a silent, unflappable witness."

But he was wrong.

Prosecutors now concede that they misinterpreted the DNA evidence that helped send Johnson to death row. The blood was found on a black baseball cap that belonged to Smith - not on Johnson's red hat.

That admission has prompted a Philadelphia judge to order a new trial for Johnson and to set aside his 2007 death sentence.

Eric Montroy of the Federal Defenders Office, reviewing Johnson's conviction on appeal, discovered that prosecutors had misread a lab report on the DNA analysis. They mistakenly concluded that Smith's blood had been found on Johnson's hat when it was actually found on Smith's hat.

At trial, Johnson's lawyers, Michael Coard and Bernard Siegel, failed to catch the error and did not challenge that critical link between Johnson and the mortally wounded Smith.

So the mistaken evidence was introduced at trial, along with testimony from a jailhouse informant who said he had heard Johnson admit to the killing and recall firing the fatal shots. "Pow. Boom," he quoted Johnson as saying as he gestured pulling a trigger.

Prosecutors said Johnson killed Smith because Smith was a key witness in a murder case against a friend of Johnson's.

At trial, Coard denounced the prosecution's case and called the informant a liar. He said the evidence against Johnson amounted to nothing more than "a rat and a hat."

But prosecutors prevailed, and Johnson, already serving a life sentence for fatally shooting 10-year-old Faheem Thomas-Childs as he walked to school in 2004, was convicted of Smith's murder. Faheem's killing, which shook the city, was presented as an aggravating factor at sentencing and Johnson was sentenced to death.

The challenge to the DNA evidence in the Smith case freed Johnson from death row as he awaits retrial.

Regardless of the outcome of his new trial, Johnson, now 30, will spend the rest of his life behind bars for killing Faheem.

In ordering a retrial in April, Common Pleas Court Judge Lillian Harris Ransom said Johnson's lawyers had failed him by missing the mix-up with the DNA. She said that was ineffective assistance of counsel.

Montroy, Johnson's appellate lawyer, said in court papers that Coard and Siegel were "consistently ineffective for failing to hire an expert in DNA and for failing to request underlying documents regarding the DNA analysis."

He also faulted prosecutors, saying their presentation of the DNA evidence was a "complete fabrication" and amounted to prosecutorial misconduct.

In court filings, prosecutors called the error "an honest mistake."

Barry declined to comment.

Cameron Kline, a spokesman for the District Attorney's Office, downplayed the significance of the disputed DNA.

"This is a piece of evidence," he said, adding that DNA alone did not convict Johnson. "We believe the evidence shows that he is guilty."

Coard, Johnson's lead lawyer at trial, said in an interview this week that Siegel, who died of cancer in 2012, had been tasked with handling the DNA aspect of the case.

"I gave him absolute sole discretion on the DNA," Coard said. "He felt he knew enough to not bring on an expert."

Defense lawyer Marc Bookman, who will represent Johnson at his new trial, declined to comment.

Johnson has maintained his innocence. He declined a plea deal that would have given him a life sentence in the Smith killing.

A date for his retrial has not been set.

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