Mississippi, Pennsylvania Courts Grant New Trials to Wrongly Condemned Prisoners

Appeals courts in Mississippi and Pennsylvania have grant­ed new tri­als to two men who have long assert­ed their inno­cence of charges that had sent them to their states’ death rows. 

On October 26, the Mississippi Supreme Court ordered a new tri­al for Sherwood Brown (pic­tured, left), after review­ing excul­pa­to­ry results of DNA test­ing and evi­dence that Brown’s triple-mur­der con­vic­tion and death sen­tence had been obtained as a result of mis­lead­ing foren­sic tes­ti­mo­ny. On October 31, the Pennsylvania Superior Court grant­ed a third tri­al to for­mer death-row pris­on­er Daniel Dougherty (pic­tured, right), who had been wrong­ly con­vict­ed of set­ting a fire in which his two sons died, rul­ing that Philadelphia pros­e­cu­tors improp­er­ly pre­sent­ed the same ques­tion­able arson tes­ti­mo­ny in his retri­al that had caused his first con­vic­tion to be over­turned in 2013. 

Brown was sen­tenced to death in 1995 for the sex­u­al assault and mur­der of a 13-year-old girl and received life sen­tences for the mur­der of the girl’s moth­er and grand­moth­er. Prosecutors had argued that blood on Brown’s shoes came from the vic­tims, and a foren­sic bitemark expert had claimed that a bitemark on Brown’s wrist matched the girl’s bite pattern. 

In 2012, the Mississippi Supreme Court grant­ed Brown’s motion for DNA test­ing. The results showed that the blood on Brown’s shoe could not have come from any of the vic­tims because it was male DNA and a sali­va sam­ple tak­en from the vic­tim who had alleged­ly bit­ten Brown showed no evi­dence of Brown’s DNA. In their motion for a new tri­al, Brown’s lawyers, includ­ing lawyers from the Mississippi Innocence Project, argued that ​“the two pieces of phys­i­cal evi­dence that the state alleged at the 1995 tri­al, linked peti­tion­er to the crime scene — and upon which the state relied to gain a con­vic­tion and sen­tence in this mat­ter — do not in fact link the peti­tion­er to the crime scene, and are not what the state pur­port­ed them to be.” 

In an act it described as ​“extra­or­di­nary and extreme­ly rare in the con­text of a peti­tion for leave to pur­sue post-con­vic­tion col­lat­er­al relief,” the court over­turned Brown’s con­vic­tions with­out need for an evi­den­tiary hear­ing on the DNA evi­dence and returned the case to the DeSoto County Circuit Court for a new trial. 

The Pennsylvania Superior Court reversed Dougherty’s con­vic­tion for a sec­ond time, rul­ing that the tri­al court had improp­er­ly per­mit­ted pros­e­cu­tors to use the same tes­ti­mo­ny an assis­tant fire mar­shal had pre­sent­ed in Dougherty’s first tri­al in 2000, even though Dougherty’s 2000 con­vic­tion and death sen­tence had been over­turned because of his tri­al lawyer’s fail­ure to retain a fire sci­ence expert to explain the sci­en­tif­ic inva­lid­i­ty of that tes­ti­mo­ny and the lawyer’s result­ing inad­e­quate cross-exam­i­na­tion of the fire mar­shal. The court ruled that Philadelphia pros­e­cu­tors also improp­er­ly pre­sent­ed the tes­ti­mo­ny of anoth­er for­mer Philadelphia fire mar­shal that relied on and prej­u­di­cial­ly bol­stered the ini­tial ques­tion­able arson testimony. 

At the time of the retri­al, Pennsylvania Innocence Project legal direc­tor Marissa Boyers Bluestine had said the case against Dougherty ​“should nev­er have been allowed to go to tri­al.” Boyers had crit­i­cized the tes­ti­mo­ny of the pros­e­cu­tion’s experts as hav­ing ​“no sci­en­tif­ic valid­i­ty.” She said, ​“To be able to put that in front of a jury today, in 2016, was a travesty.” 

Dougherty’s jury in 2016 acquit­ted him of first-degree mur­der, deter­min­ing that he had not intend­ed to kill his chil­dren, but con­vict­ed him of arson and two counts of sec­ond-degree mur­der, which car­ries an auto­mat­ic life sen­tence in Pennsylvania. 

Dougherty’s cur­rent lawyer, David Fryman, expressed grat­i­tude ​“that the Superior Court right­ed the errors com­mit­ted by this tri­al judge.… We’re hope­ful the District Attorney’s office will final­ly put an end to the pur­suit of a case that nev­er should have been brought in the first place,” he said.

In addi­tion to its rul­ing on the arson tes­ti­mo­ny, the Superior Court also deter­mined that pros­e­cu­tor Jude Conroy’s pre­sen­ta­tion of inflam­ma­to­ry pho­tographs of the charred bod­ies of Dougherty’s chil­dren had been improp­er, as was his pre­sen­ta­tion of tes­ti­mo­ny from an ex-girl­friend that Dougherty was alleged­ly ​“nasty” and vio­lent towards women when drunk. Philadelphia pros­e­cu­tors must now decide whether to appeal the rul­ing and, if not, whether to attempt to try Dougherty a third time.