State Courts in Nevada, Pennsylvania Rule Prosecutorial Misconduct Bars Retrial, Exonerating Paul Browning and Kareem Johnson

State appeal courts in Nevada and Pennsylvania have barred the retri­al of two for­mer death-row pris­on­ers as a result of pros­e­cu­to­r­i­al mis­con­duct, paving the way for their exonerations. 

On January 24, 2020, months after his release from prison, the Nevada Supreme Court affirmed the deci­sion of a Las Vegas tri­al court that had dis­missed all charges against for­mer death-row pris­on­er Paul Browning (pic­tured, left), for­mal­ly com­plet­ing his exon­er­a­tion. Then, on May 19, 2020, the Pennsylvania Supreme Court declared that the retri­al of Kareem Johnson after ​“unimag­in­able” offi­cial neg­li­gence and mis­con­duct in his case would vio­late state con­sti­tu­tion­al pro­tec­tions against being twice placed in jeop­ardy of life and lib­er­ty. Johnson’s for­mal exon­er­a­tion will be com­plete when a low­er court offi­cial­ly grants his motion to dis­miss the charges against him. 

Browning becomes the 168^th per­son exon­er­at­ed from death row, and the first in 2020. Depending upon the out­come of pend­ing court pro­ceed­ings in the case of Philadelphia death-row pris­on­er Walter Ogrod, Johnson could become the nation’s 169^th death-row exoneree. A tri­al court is sched­uled on June 5 to con­sid­er a joint motion by Ogrod and the Philadelphia District Attorney’s Conviction Integrity Unit to vacate his con­vic­tion. Prosecutors have con­ced­ed that Ogrod is ​“like­ly innocent.” 

The Exoneration of Paul Browning

Browning’s case involves all of the lead­ing caus­es of wrong­ful con­vic­tions: offi­cial mis­con­duct, per­jury or false accu­sa­tion, false foren­sic evi­dence, eye­wit­ness misiden­ti­fi­ca­tion, and inad­e­quate rep­re­sen­ta­tion. The U.S. Court of Appeals for the Ninth Circuit called his tri­al ​“a mix­ture of dis­turb­ing pros­e­cu­to­r­i­al mis­con­duct and woe­ful­ly inad­e­quate assis­tance of coun­sel.” He spent 33 years in prison before Clark County District Judge Douglas Herndon, who had ordered the charges against Browning dropped in March 2019, direct­ed cor­rec­tions offi­cials to release him on August 21, 2019 pend­ing the out­come of the state’s appeal to the Nevada Supreme Court. In January, the state supreme court, in a two-page order, affirmed Herndon’s rul­ing, final­iz­ing Browning’s exoneration. 

Browning was con­vict­ed and sen­tenced to death in 1986 for the rob­bery and mur­der of Las Vegas jew­el­er, Hugo Elsen. His tri­al attor­ney had been prac­tic­ing crim­i­nal defense for less than a year and failed to inter­view the police who respond­ed to the scene, exam­ine the evi­dence against Browning, or inves­ti­gate the crime. Browning’s appel­late attor­neys uncov­ered numer­ous prob­lems with the evi­dence in the case and argued that even a min­i­mal­ly com­pe­tent attor­ney would have revealed flaws in the prosecution’s evidence. 

In his post-con­vic­tion appeal, Browning showed that police and pros­e­cu­tors had with­held evi­dence of a bloody foot­print found at the scene that did not match Browning’s shoes or foot size, mis­rep­re­sent­ed blood evi­dence in the case, manip­u­lat­ed eye­wit­ness tes­ti­mo­ny, failed to dis­close ben­e­fits offered to a key wit­ness who may have com­mit­ted the mur­der and framed Browning, and that the stab wounds suf­fered by Elsen did not ​“coher­ent­ly coin­cide” with the knife pros­e­cu­tors claimed Browning had used to com­mit the killing. 

Prosecutors had told the jury that Elsen’s blood had been found on a tan jack­et owned by Browning. However, Elsen — who was able to describe his assailant before he died — told police the killer had worn a blue jack­et and lat­er DNA test­ing showed that of the blood on Browning’s jack­et was not Elsen’s. Elsen also said his assailant had shoul­der-length Jheri curls, which was com­plete­ly incon­sis­tent with Browning’s Afro-styled hair. Elsen’s wife failed to iden­ti­fy Browning in a line­up, but lat­er tes­ti­fied at tri­al that he was the killer. A white wit­ness who worked near the crime scene told police she had seen a man run by after the mur­der and thought it could have been Browning, but when police asked if she could be ​“more sure” about whom she had seen, she said, ​“No, I wouldn’t think so. No … They all look the same, and that’s just what I think when I see a black per­son, that they all look the same.” At tri­al, though, she unhesi­tat­ing­ly tes­ti­fied that Browning was the man she had seen. 

The Exoneration of Kareem Johnson

The Pennsylvania Supreme Court assured that Kareem Johnson (pic­tured) will be exon­er­at­ed from Pennsylvania’s death row when it ruled on May 19 that his repros­e­cu­tion would vio­late the state’s dou­ble jeopardy protections. 

Johnson was con­vict­ed and sen­tenced to death in 2007 based upon evi­dence and argu­ment false­ly inform­ing the jury that DNA evi­dence linked him to the mur­der. The pros­e­cu­tion, police, and a pros­e­cu­tion foren­sic ana­lyst told the jury that Johnson shot the vic­tim, Walter Smith, at such close range that Smith’s blood spat­tered onto a red base­ball cap Johnson was wear­ing that was recov­ered at the mur­der scene. Philadelphia homi­cide pros­e­cu­tor Michael Barry false­ly linked Johnson to the mur­der through the hat, telling jurors in his open­ing state­ment that it ​“was left at th[e] scene in the mid­dle of the street [and] has Kareem Johnson’s sweat on it and has Walter Smith’s blood on it.” 

Officer William Trenwith then tes­ti­fied that he had found the hat lay­ing 8 – 10 feet from Smith’s body. He fur­ther tes­ti­fied that, in his expe­ri­ence, he had nev­er seen blood trav­el that far from a victim’s body, after which Barry told jurors: ​“We know that he [Kareem Johnson] got in real close, with­in 2 ½ feet, close enough so that Walter Smith’s blood could splash up onto the bill of the cap he was wear­ing.” Barry argued: ​“Do you know who says the killer wore the hat? Walter Smith says the killer wore the hat. He says it with his blood.” 

In fact, there was no blood on the red hat, nor did the police prop­er­ty receipt for the hat con­tain any indi­ca­tion of blood. Smith’s blood was actu­al­ly on a sec­ond hat — a black hat he was wear­ing at the time he was shot in the head. The DNA reports for the red hat also raised ques­tions about the sweat stain attrib­uted to Johnson. The ini­tial DNA report on the sweat stain — which was sup­ple­ment­ed twice with­out expla­na­tion — did not link the hat to Johnson. 

When post-con­vic­tion coun­sel for Johnson dis­cov­ered the dis­crep­an­cies in the evi­dence, police and pros­e­cu­tors claimed to have mixed up the hats. The Philadelphia DA’s office agreed that Johnson’s con­vic­tion should be over­turned but stip­u­lat­ed to its rever­sal in April 2015 based only ​“on inef­fec­tive assis­tance of coun­sel at the guilty-inno­cence phase of tri­al.” Prosecutors insist­ed at the time of the stip­u­la­tion that Johnson ​“agree[ ] to with­draw all oth­er claims … includ­ing claims alleg­ing pros­e­cu­to­r­i­al mis­con­duct of District Attorney Michael Barry.” 

After obtain­ing addi­tion­al dis­cov­ery in prepa­ra­tion for retri­al, Johnson moved to bar his retri­al on dou­ble jeop­ardy grounds. Although the low­er courts described the prosecution’s mis­han­dling of the evi­dence in the case as ​“extreme­ly neg­li­gent, per­haps even reck­less” and called Johnson’s tri­al a ​“farce,” they allowed the retri­al to proceed. 

The Pennsylvania Supreme Court reversed, find­ing that the mis­con­duct — even if not deemed inten­tion­al — was so severe that retry­ing Johnson would vio­late his con­sti­tu­tion­al rights. ​“Under Article I, Section 10 of the Pennsylvania Constitution,” it wrote, ​“pros­e­cu­to­r­i­al over­reach­ing suf­fi­cient to invoke dou­ble jeop­ardy pro­tec­tions includes mis­con­duct which not only deprives the defen­dant of his right to a fair tri­al, but is under­tak­en reck­less­ly, that is, with a con­scious dis­re­gard for a sub­stan­tial risk that such will be the result.” The rul­ing expand­ed Pennsylvania’s dou­ble jeop­ardy pro­tec­tions to include cas­es not only of inten­tion­al mis­con­duct, but also reck­less dis­re­gard for the defendant’s right to a fair tri­al. Two jus­tices dis­sent­ed, say­ing that grant­i­ng Johnson a retri­al was a suf­fi­cient rem­e­dy for the prosecution’s actions. 

The court returned the case to the Pennsylvania Superior Court with direc­tions to enter an order grant­i­ng Johnson’s motion to bar retri­al. He would be Pennsylvania’s eighth death-row exon­er­a­tion and the fifth from Philadelphia. All five Philadelphia exon­er­a­tions have involved official misconduct.