Source: The Philadelphia Inquirer


The Philadelphia District Attorney’s Office has decided not to seek the death penalty in the retrial of a North Philadelphia man whose 2007 death sentence was invalidated after discovery of a mix-up in DNA evidence.

Assistant District Attorney Andrew Notaristefano announced the decision at a hearing Tuesday for Kareem Johnson, 31, convicted of first-degree murder and sentenced to death in the 2002 shooting of Walter Smith, 39, outside a North Philadelphia bar. Smith, a barber, was a potential witness in a murder case against Johnson’s friend.

Still at issue is whether Johnson will be retried at all.

Over several days last month, Common Pleas Court Judge Benjamin Lerner held evidentiary hearings on the question of whether the DNA mix-up was so egregious that retrial is barred under the U.S. Constitution’s “double jeopardy” provision, which bars successive trials for the same conduct.

Marc Bookman, who with Gregory Pagano now represents Johnson, has said he is also investigating whether the circumstances leading to the DNA mix-up amounted to “prosecutorial misconduct.”

That allegation has been strongly denied by Notaristefano and Michael Barry, the prosecutor who handled the trial.

Both have argued that the mix-up was an honest mistake that was missed by Johnson’s trial counsel at the time. They said the District Attorney’s Office immediately agreed to a new trial when the DNA problem was discovered.

Regardless of the outcome in the Smith case, Johnson will spend the rest of his life in prison for his part in an early-morning gunfight in 2004 that shocked the city.

Johnson was sentenced to life without parole for fatally shooting 10-year-old Faheem Thomas-Childs as the boy walked to school during an exchange of gunfire with rival gang members.

Johnson was convicted in the Smith case in part because of what prosecutors said was Smith’s blood found on a red Air Jordan baseball cap belonging to Johnson. The cap was found near Johnson’s body outside Dooner’s Lounge at 29th Street and Chalmers Avenue in North Philadelphia.

But it was only last year, during Johnson’s appeal hearings under the state Post Conviction Relief Act, that defense lawyers found that the prosecutor and police witnesses had erroneously conflated DNA reports from two caps found at the scene.

Smith’s blood was not on the red cap identified as Johnson’s; that cap contained only Johnson’s DNA.

Smith’s blood was found on his own cap, one that was black in color.

Both Barry and William Trenwith, the Philadelphia police crime-scene investigator on the Johnson case, testified last month that they did not know a black hat had been recovered until last year’s hearings.

Lerner is not expected to rule before a March 3 hearing.

In the meantime, Bookman, founder of a nonprofit that counsels defense lawyers in capital cases, said Tuesday that he would work to get Johnson off death row in Graterford Prison, where he is confined to a cell 23 hours a day.