Justice: Delayed, Dismissed, Denied

With Philadelphia's court system in disarray, cases crumble as witnesses fear reprisal and thousands of fugitives remain at large.

Posted: December 13, 2009

Kareem Johnson stood over Walter Smith and executed him. He fired so close that Smith's blood splashed up onto Johnson's Air Jordan baseball cap.

He shot him as a favor to a childhood friend.

Smith was a threat because he had come forward as a witness in a murder case against Clinton Robinson.

With the witness dead, Robinson cut a sweet deal. He pleaded guilty to voluntary manslaughter and was sentenced to just 2 1/2 to five years.

"Basically, I beat it," he says now.

He and Johnson know all about beating cases in the Philadelphia courts. In just three years, Johnson, 26, and Robinson, 24, were arrested a total of nine times for gun crimes, but until the charges escalated to murder, nothing stuck.

Johnson's bloodletting came to an end only after he killed a 10-year-old boy in 2004 in one of the city's most notorious murders. As for Robinson, he's locked up on a drug charge, but expects to go free soon.

The two men's violent path from the streets into the courts and back again vividly illustrates the failure of Philadelphia's criminal justice system.

It is a system that all too often fails to punish violent criminals, fails to protect witnesses, fails to catch thousands of fugitives, fails to decide cases on their merits - fails to provide justice.

In America's most violent big city, people accused of serious crimes are escaping conviction with stunning regularity, an Inquirer investigation has found.

Philadelphia defendants walk free on all charges in nearly two-thirds of violent-crime cases. Among large urban counties, Philadelphia has the nation's lowest felony-conviction rate.

Only one in 10 people charged with gun assaults is convicted of that charge, the newspaper found.

Only two in 10 accused armed robbers are found guilty of armed robbery.

Only one in four accused rapists is found guilty of rape.

The data also show that people charged with assaults with a gun escape conviction more often than those who use fists or knives. Of people arrested for possession of illegal handguns, almost half go free.

Nationally, prosecutors in big cities win felony convictions in half of violent-crime cases, according to federal studies. In Philadelphia, prosecutors win only    20 percent.

In a comprehensive analysis of the Philadelphia criminal courts, The Inquirer traced the outcomes of 31,000 criminal court cases filed in 2006, 2007, and 2008, tracking their dispositions through early this year. The results go a long way toward explaining the violence on city streets.

For three consecutive years, Philadelphia has had the highest violent-crime rate among the nation's 10 largest cities, FBI figures show. It has the highest rate for murder, rape, robbery, and aggravated assault.

Though murder cases are an exception, Philadelphia conviction rates trail the nation's in rape, robbery, and serious assault cases.

"We have a system that is on the brink of overall collapse," said Pennsylvania Supreme Court Justice Seamus P. McCaffery, a former Philadelphia judge and a longtime critic of the courts' high dismissal rate, after reviewing The Inquirer's findings.

"These are the most horrendous crimes that can be committed - murder, rape, robbery, aggravated assault," he said, calling the conviction rates "unacceptable."

Lynne M. Abraham, a Democrat who will step down next month after 18 years as district attorney, rejected the federal findings that Philadelphia has the worst conviction rates in the nation.

She said the national figures were so "skewed" as to be unreliable. She also rejected The Inquirer's statistical analysis.

"You can't do justice by numbers," Abraham said in an interview last week.

"I gave the public my word of honor that I would be honest and honorable, that I'd call it as I see it," she said. "I'm not going to railroad anybody or put my thumb on the scale to make me look good in The Inquirer or in the public."

Based on interviews with judges, prosecutors, police, defense lawyers, criminologists, victims, and defendants, and an in-depth review of court cases, The Inquirer found that the abysmal conviction rates stem from a series of systemic failings:

Witness intimidation has become an epidemic in Philadelphia.

At least 13 witnesses or their families have been killed in the city over the last decade. Prosecutors charge more than 300 people a year with the crime of witness intimidation.

The system is overwhelmed by an exploding caseload, pressuring judges to put a premium on disposing cases, rather than insisting that victims and defendants have their day in court.

Of 10,000 defendants who walked free on their violent-crime cases in 2006 and 2007, 92 percent had their cases dropped or dismissed. Only 788 - 8 percent - were found not guilty at trial, The Inquirer's analysis shows.

Abraham, the city's top prosecutor, has failed to keep figures tracking how well - or poorly - her office has done in court.

Criminologists and other prosecutors say keeping such data is essential to prioritizing the work of the office's 300 prosecutors.

Defense lawyers routinely exploit the court system's chaos. They delay cases to wear down victims and witnesses, and seek spurious postponements if they know prosecution witnesses are in court and ready to go.

Judges, prosecutors, and even prominent defense lawyers acknowledge that this kind of gamesmanship is common and that the system's failings work to defendants' advantage.

The system bungles basic, but crucial, steps necessary to getting key witnesses into court. Inmates, needed at trial as witnesses or defendants, never arrive. Police are routinely booked to appear in different courtrooms at the same time, guaranteeing that cases will collapse.

Though officials are working to reduce the problem, as many as a quarter of all subpoenaed inmates in recent years have failed to show up for court on any given day, experts say.

The court's bail system is broken. Defendants skip court with impunity, further traumatizing victims who show up for hearings that never take place.

There are almost 47,000 Philadelphia fugitives on the streets. Philadelphia is tied with Essex County, N.J. - home of Newark - for the nation's highest fugitive rate. To catch them, the city court system employs just 51 officers - a caseload of more than 900 fugitives per officer.

In a sign of the system's disarray, court officials had trouble answering when The Inquirer asked how much fugitives owed taxpayers in forfeited bail. At first, they said the debt was $2 million. Then they pegged it at $382 million. Finally, they declared it was a staggering $1 billion.

After the newspaper raised questions about the bail debt 11 months ago, the courts and the city pledged to hire a firm to go after the money. That never happened.

For years, Abraham has complained about the court's failure to collect the money. Mayor Nutter, in a recent letter to her, blamed Clerk of Quarter Sessions Vivian T. Miller, saying her "inability to provide accurate records" had stalled the entire effort.

In an interview, Robin T. Jones, Miller's top aide and her daughter, acknowledged the office had no computerized records of the debts, just paper notations in each defendant's file.

Abraham's successor, Seth Williams, a Democrat and former assistant district attorney who will take office next month, said the D.A.'s failure to track case outcomes contributed to the low conviction rates. He said he was appalled by the newspaper's findings.

"We have to change this," Williams said last week. "It's not that it's just bad. It's terrible."

Of the cases that die, 82 percent collapse in Municipal Court, whose judges decide whether cases should proceed to Common Pleas Court for a full trial.

Asked about the low conviction rates, Municipal Court President Judge Marsha H. Neifield said she wanted to study the issues.

"This hasn't been presented to us before," she said. "We want to do the right thing. If we in any way can be construed as causing any problem, we want to fix it."

Asked to comment on The Inquirer's findings, D. Webster Keogh, administrative judge of Common Pleas Court, said: "I don't have a position on it."

He added: "It's not the responsibility of a court system to grade itself on convictions and non-convictions. The responsibility of a court is to fairly decide each case on the merits."

High crime rates, low conviction rates, almost 50,000 fugitives - these are the results of a court system clogged with cases and focused on clearing dockets.

Every day in Philadelphia, at the 65-courtroom Criminal Justice Center and in cramped courtrooms in police districts across the city, scores of serious cases simply crumble, then die.

"We call that a Philadelphia special," said A. Charles Peruto Jr., a veteran defense lawyer.

"Witnesses didn't show. Cops didn't show. It was the usual.

"I've won shootings because the witness was waiting in line to get on the elevator," he said.

Shots at a dice game

Clinton Robinson shot Walter Smith the first time.

But it was Kareem Johnson who killed him four months later.

Smith was wounded in 2002 when shots were fired at a dice game. His mistake was to try to walk away with his winnings.

That summer Smith, 38, and Robinson, then just 17, had gathered with a dozen others for the game at 23d and Somerset in North Philadelphia.

The winner that evening was Smith, a neighborhood barber with a wife and children. As he pocketed his cash and began to leave, two men fired.

Smith was shot in a hand. Margaret Thomas, 53, was just passing by and walked into the path of a stray bullet. A churchgoing grandmother lay dead on the sidewalk, and three children lost their mother.

Smith survived. And he was willing to talk.

In an audiotape made by lawyers from the Defender Association shortly after the shooting, Smith said Clinton Robinson shot him. Questioned by public defender Daniel Stevenson, Smith vividly recalled the chaos of the gunfire.

"See," Smith said in a tape obtained by The Inquirer, "I was shot before he asked for the money. . . . I would have gave it to him before he shot me. I was hit. . . . I was scared."

He remembered the fallen Thomas. "We both got down," he said, "and she just never got back up."

Smith's voice on that tape would soon be a voice from the grave. In December 2002, as Smith stepped out of a North Philadelphia bar into the winter chill, two gunmen ambushed him. They shot him a dozen times.

Smith died. And, with him, the murder case against the dice-game shooters.

"That's what happens when a witness gets killed," said Assistant District Attorney Michael Barry, a top homicide prosecutor.

For years, Smith's murder went unsolved. Police had only a sketchy account from a witness, a few 9mm bullet casings - and the Air Jordan cap found near Smith's body.

While Smith had been unequivocal that Robinson shot him at the dice game, his statement would never be heard by a judge or jury. His words were inadmissible in court because he had not testified at a preliminary hearing, where a defense lawyer could have cross-examined him.

Smith's wife, Rhonda, declined to comment on her loss.

"This is not just a story for us," she said. "This is our lives, and me and my children are trying to move forward with our lives. We just want to heal."

Absent a key witness, prosecutors offered Robinson the 21/2- to five-year deal, reducing the charge to voluntary manslaughter in the death of Margaret Thomas. He also pleaded guilty to aggravated assault in wounding Walter Smith.

Thomas' family was devastated.

"That was not justice," said Lavenia Thomas, the victim's sister.

Prosecutors don't claim that it was.

"The offer had absolutely nothing to do with the murder of Margaret Thomas or how bad a person Clinton Robinson was," Barry said. "We couldn't win the case."

As for Robinson, he now disavows his guilty plea.

"I admit it, I was gambling," he said in a jailhouse interview, "but I didn't pull no trigger."

Behind the numbers

In nearly two decades as the city's top prosecutor, Abraham has won praise and criticism for her focus on homicide cases.

Her work paid off.

The Inquirer analysis shows that prosecutors won a conviction in more than eight out of every 10 murder cases in 2006 and 2007. The paper focused on those years to allow time for cases to resolve.

Philadelphia homicide prosecutors do much better than their counterparts across the nation.

The national murder conviction rate was 71 percent, according to the latest federal study. In Philadelphia, it was 82 percent.

But there's a striking difference between how well city prosecutors do in murder cases and in other violent crimes.

Philadelphia prosecutors won a conviction of some sort - often only on misdemeanor charges - on just a third of robbery and aggravated-assault cases. Nationally, prosecutors won 69 percent of robbery cases and 56 percent of serious assault cases.

In rape cases, The Inquirer found, 24 percent of defendants were found guilty of rape. An additional 34 percent were convicted of lesser charges.

That adds up to a 58 percent conviction rate, slightly less than the national norm.

Year after year, Philadelphia has been in the bottom rungs for felony-conviction rates in the United States, according to federal studies. In the latest study, a sampling based on 2004 statistics released last year, Philadelphia had the lowest conviction rate of all court systems surveyed.

To make matters worse, the city's conviction rate has deteriorated over time. In 1996, city prosecutors won a conviction in 52 percent of their cases. By 2004, that rate had fallen to 40 percent - though the national picture was virtually unchanged.

The federal analysis counted a case as a "win" for prosecutors whenever a defendant was convicted on any charge, no matter how minor. This can mask how meager prosecutors' victories can be.

The Inquirer's analysis drilled deeper. Significantly, it found that only 19 percent of defendants charged with robbery and firearms offenses ended up convicted of both.

Consider: Every year, about 4,500 people report being robbed at gunpoint in Philadelphia, yet only about 200 people are convicted of that crime. That's 4 percent.

Even veteran defense lawyers were stunned by the numbers.

Samuel C. Stretton, an experienced trial lawyer, said the armed-robbery outcomes were particularly troubling.

"That's outrageous," he said. "What a tragedy for victims and citizens if that many cases are being thrown out of court."

Police Commissioner Charles H. Ramsey said he found the low conviction rates "very unfortunate."

"For the system to work, people have to believe that the system will move swiftly - justly, but swiftly - and that there will be consequences. . . . It's a damn shame when you stop and think about it."

Gunfire on a playground

When Clinton Robinson was 15, police charged him with pointing a TEC-9 assault pistol at a man carrying takeout from a Chinese restaurant. He took the man's cell phone and a pack of Newport cigarettes that had a scrawled note inside, police said. He left the food.

Police quickly caught him with the cell phone - and the cigarette pack with the note. The victim identified him at the scene, but his cooperation ended there.

"He never came to court," Robinson said. "Nobody came three times, and they threw it out."

The next time Robinson stood before a judge, it was on charges of shooting a man in the leg. The case unraveled after the police officer who witnessed the shooting was arrested on charges of framing another suspect.

If he'd been found guilty, Robinson might not have been at the dice game the next year. He might not have killed Margaret Thomas and wounded Walter Smith. And 11-year-old Tony Ross might not have been shot in the neck and arm as he played basketball on a crowded playground.

The boy was hit when a gunfight broke out at a park in North Philadelphia - four days after the deadly dice game.

Police said a man fired at Robinson to avenge the shooting of Smith. Robinson returned fire, they said, injuring Ross and a 22-year-old man.

Robinson was arrested, but his court case dragged on for more than three years. It was delayed again and again, even once when all the lawyers and witnesses were ready to go - but officials couldn't manage to bring Robinson from prison to the courtroom.

Prosecutors call that "the bring-down problem."

When a defendant - or, just as often, a witness - has to be brought from prison to court, the chances for a system breakdown are rife. It takes communication among many players - prosecutors, judges, and jailers - to get inmates from cells into courtrooms. Until recent changes, such "bring-downs" failed a quarter of the time, officials said.

In the end, all charges against Robinson were dropped. Prosecutors abandoned the playground shooting case after the trials of two codefendants ended in acquittals. Witness testimony was conflicting, and physical evidence didn't match the testimony.

Tony Ross' mother, Jermaine Lewis, said her family was baffled by that outcome.

"How could somebody be on a basketball court and have a gun and pull the trigger and nobody get in trouble for it?" she asked.

As the case wound its way through the courts, she and her son repeatedly traveled to the Criminal Justice Center, fruitlessly.

"It was a lot of waiting and sitting around," said Lewis, a cafeteria employee at a North Philadelphia high school. "It was hard because I work, and I was taking off from work."

When the case faded away, no one called to tell her it was over.

"It was like - nothing," she said. "We never got no more phone calls, and nothing was ever said."

In the recent interview, Robinson said he was blameless in each case.

He was at the dice game, he said, but didn't shoot. He was at the playground, but had no gun. He didn't stick up anyone outside the Chinese restaurant.

As for shooting a man in the leg, he didn't do that either.

"They had me for 10 months for that, and he never came to court," Robinson said. "No one came to court, and I was still sitting. They were just railroading me."

The delay game

As he made his way in and out of court, Robinson, like many defendants, benefited from a little-known rule. Among judges, prosecutors, and defense lawyers, it's called the "three-strikes" rule.

It's not a local version of the well-known national "three-strikes" laws that crack down on repeat offenders.

Rather, it's a Municipal Court practice that restricts Philadelphia prosecutors. It gives prosecutors three tries to conduct a preliminary hearing - or face dismissal of a case.

This doomed prosecutions of Robinson in two gun cases.

This simple provision, formally Rule 555 in the court's criminal-procedures rule book, is devastating in its impact.

According to prosecutors - and even some defense lawyers - Philadelphia's defense bar routinely exploits the rule with deliberate delays, to string together enough failed hearings to get cases tossed.

"Delay is the prosecutor's worst enemy," said Deputy District Attorney John P. Delaney Jr. "Our cases do not get better with age. They get worse."

As trials loom, prosecutors say, some defense lawyers will call their clients to see if witnesses are in the courtroom. If they are, the lawyers ask for a delay.

While such defense postponements don't count as "strikes" against prosecutors, the defense bet is that witnesses won't show the next time.

In this game of cat and mouse, veteran prosecutor Albert J. Toczydlowski said, "I would sequester my victims in another courtroom" - surfacing them only after the defense lawyer had committed to a hearing.

To be sure, many defense lawyers say they don't play games to win.

They say the low conviction rates simply mean that judges are doing their jobs by winnowing out weak cases. "They're weeding out the total nonsense," said lawyer Ronald Greenblatt.

President Judge Neifield said she found little merit in prosecutors' complaints about the three-strikes rule.

"I think they've probably said this for as long as I remember," she said.

But some defense lawyers agree that the courtroom gridlock can work in their client's favor.

"What the lawyers really are playing for is the witness won't show up and the judge will say, 'Dismissed. Lack of prosecution,' " said Dennis J. Cogan, a leading member of the defense bar and a former homicide prosecutor.

Another veteran defense lawyer said he and his firm's associates would go a step further and sometimes cook up reasons to delay.

"It's a scummy way to win," the lawyer said, asking not to be named because he did not want to be publicly associated with these tactics. "Does my office engage in that? Yes.

"If all their witnesses are there and there's no way to win except to postpone, we postpone. It's a battle."

Heavy artillery

As a camera rolled, Kareem Johnson reached into the waistband of his baggy jeans to show off his gun: an Intratec AB-10 assault pistol.

"This is how we rock this thing," he said, displaying the weapon. "It can go down at any given time, you know what I mean?"

"Heavy artillery. . . . This is how we ride."

Johnson's bravado was captured in a documentary DVD called Hood2Hood, which promised to take viewers on a "journey into the crimiest hoods in America."

His cameo, filmed in North Philadelphia on his 19th birthday, offered a glimpse of a man fascinated with firearms - and adept, court records show, at shaking off gun-possession charges.

In January 2002 - nearly a year before Johnson killed Walter Smith - police arrested him with a .38-caliber revolver after an anonymous caller dialed 911 to report seeing a man on the street with a gun.

In court, Johnson's lawyer quickly established that the 911 caller had provided only the barest description of the gunman and that the gun hadn't been visible when police approached. A judge tossed out the case.

In a series of rulings, the Pennsylvania Supreme Court has imposed tough rules on police in conducting searches, standards more restrictive than those of the U.S. Supreme Court.

Among other limits, the state's high court has barred searches in which guns were found on suspects after anonymous calls to police. In one such case, the court said evidence "must be independent of the telephone tip itself."

In a recent interview, Ronald Eisenberg, the head of the appellate unit of the District Attorney's Office, said the police officer who seized that gun from Johnson had done the right thing - "for his safety and the safety of the community."

In January 2003, police say, Johnson jumped from a car and robbed a 17-year-old walking to school. With a gun pointed to his chest, the teenager emptied his pockets and tossed his money - $3 - to the ground.

Johnson scooped it up and ran, police said. Though he got away, police recovered the car, a newly stolen Alamo rental. From inside, technicians lifted a fingerprint. It was a match for Johnson.

But Johnson's attorney dismissed the fingerprint evidence.

"The only evidence in this case is, at one time my client was in the car," lawyer Cindene Pezzell said in court. "The car is a rental car, and by its nature, there's dozens of people in the car."

Eisenberg said it was absurd to view the vehicle as just "a rental car."

"It's the car used in the robbery," he said.

The prosecution easily met its burden at that stage, and the case should have been held for trial, Eisenberg argued. At trial, he said, prosecutors would have obtained rental records in an effort to rebut any suggestion that Johnson had somehow rented that car before.

The judge sided with the defense. She threw out the case.

In October 2003, Johnson was caught with another gun when police pulled him over for reckless driving.

He gave police a false name and had no identification or car insurance. In a search, police found a .40-caliber magazine clip stashed in the underwear of a woman in the car. Then police retrieved a .40-caliber Glock handgun from under Johnson's seat.

A judge suppressed the gun as evidence. She ruled that police should have first sought a search warrant.

No gun, no case. Prosecutors had no choice but to drop the charges.

The D.A.'s Office appealed to Commonwealth Court, but lost. The state Supreme Court refused to hear the appeal.

Johnson's next arrest came less than a week later. Once again, police took a gun from him.

Five days after the car stop, police raided a house in North Philadelphia after an informant bought crack there. When police rushed inside, they said, they saw Johnson throw down a loaded TEC-9 pistol.

Elsewhere in the house, police seized crack and marijuana in packets, more handguns, and two bulletproof vests.

An initial hearing failed when the prosecution couldn't get a police witness into court.

Necessary police officer not subpoenaed, the official case record notes.

Johnson was free on bail.

He never showed for his next hearing, and the judge issued a bench warrant for his arrest. He was just one among thousands of fugitives in Philadelphia neighborhoods.

By the time police finally caught up with him, he had killed again.

'Pow. Boom.'

Three and a half weeks after he became a fugitive, Kareem Johnson fired the bullet that killed 10-year-old Faheem Thomas-Childs as he was walking to school.

Faheem was caught in the cross fire between two groups of men on Feb. 11, 2004, that left frightened children scrambling for cover and a crossing guard shot in the foot.

In all, more than 50 shots rang out that morning outside Thomas M. Peirce Elementary, the same school Johnson and Robinson had attended years earlier.

Johnson was caught a few days later in a bedroom of a North Philadelphia apartment. Police searched the place and found a .45-caliber pistol under a mattress. Ballistics tests linked the gun to a bullet fragment recovered from Faheem's head.

The third grader's shooting shook the city. More than 2,500 people attended Faheem's funeral, and 8,000 took part in the March to Save the Children a few weeks later.

After a trial marked by a parade of frightened witnesses - six people took the stand to disavow their statements to detectives - a judge found Johnson guilty of murder.

On April 28, 2006, Johnson was sentenced to life in prison.

In court that day, he was angry and unrepentant.

"You don't give a f- about my life," he yelled at Faheem's family, "and I don't give a f- about his life. . . . F- him."

A month later, as Johnson sat in state prison, the murder of Walter Smith finally caught up with him.

A man who had heard Johnson bragging about the shooting days after Smith's death found himself facing federal drug charges.

In a bid for leniency, the informant told investigators that years earlier he had heard Johnson admit the killing and say he'd wanted to "pop him right there in the bar," but decided to wait until Smith stepped outside.

Johnson gestured pulling a trigger. "Pow. Boom," he said.

The informant also told investigators he had overheard a jailhouse conversation in which Johnson told Robinson: "If it wasn't for me, your ass wouldn't be going home."

But the kicker was this: The informant said Johnson had worried aloud that he might have left his red baseball cap at the murder scene.

He was right to be worried.

Police had long ago established that the hat recovered at the scene was stained with Smith's blood. Now, new tests matched sweat from the band of the hat with Johnson's DNA.

At Johnson's second murder trial, his lawyer, Michael Coard, called the informant a liar and told jurors that the entire case amounted to nothing more than "a rat and a hat."

Barry, the homicide prosecutor, praised Smith in his closing remarks.

"It is an extraordinary person who steps up and does the right thing like Walter Smith," he told the jury. "And look what happened to him - on the ground, shot in the head, left there with the garbage."

The jury found Johnson guilty. The judge sentenced him to death.

Partial justice

For Smith's family, the verdict brought an incomplete measure of justice.

While Smith's mother found some solace in Johnson's fate, she lamented the short prison sentence handed Robinson in the dice-game shooting.

"What about the time for killing the lady?" asked Mary Smith. "Those shooters are out of prison already."

Although prosecutors told the jury that Johnson killed Smith to help his friend, Robinson was never charged in connection with Smith's murder.

He said he had nothing to do with it.

"They say he did this for me, which is totally false," Robinson said. "They say he did it for me, but they never charged me."

Robinson served the full five years in prison after pleading guilty in the dice-game case and was released on probation last fall.

He was locked up again in March when he was picked up on a drug charge.

Narcotics officers said they watched him sell crack out of a house in North Philadelphia. When police staged a raid, they said, they grabbed Robinson as he counted drug money at a table.

Police seized 63 packets of crack from a jacket in the house and took a loaded .357 Magnum from another man there.

Again, Robinson said he was innocent, simply in the wrong place at the wrong time. "I got caught in the middle of a raid," he said.

He expects to beat the case.

Soon, he said, "I'll be home."

Contact staff writer Craig McCoy

at 215-854-4821 or cmccoy@phillynews.com.

Contact staff writer Nancy Phillips

at 215-854-2254 or nphillips@phillynews.com.

Contributing to this article were Inquirer staff writers Mark Fazlollah, Emilie Lounsberry, and John Sullivan.

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