Dwayne Brown gets a new trial

These days Dwayne Brown sits in the state prison at Huntingdon in central Pennsylvania west of Harrisburg, six years into two consecutive life sentences for his role in a Dec. 11, 2000 drug-related double murder in North Philadelphia.

But Brown, 39, will be heading back to Philadelphia in the near future – for a new trial. Last Tuesday, the state Supreme Court in a hotly divided decision vacated Brown’s conviction and sentences and ordered a new trial in what is arguably one of the most convoluted cases in recent court history.

Convoluted? Consider. The state’s highest court ruled that the trial judge did not err when she allowed the uncorroborated testimony of three purported witnesses to the killings of Anthony “Manny” Williams and Keita Lacey. All three incriminated Brown as one of two shooters when they first talked to police but recanted their statements when they testified at his 2006 trial in Philadelphia Common Pleas Court.

But the court ruled that the trial judge erred when she excluded from Brown’s trial the statements made to police by admitted shooter Jasaan Walker. Walker cleared Brown of being involved in the shootings, telling detectives that his two half-brothers joined him in assassinating Williams and Lacey. But after pleading guilty in a closed-door hearing because of threats on his life, Walker was purportedly told by prosecutors that he did not have to testify at Brown’s trial.

The problem was that Brown’s lawyer, Paul M. George, never learned of Walker’s purported assurance that he did not have to testify until after Brown was tried, convicted and sentenced.

At trial, George wanted to call Walker as a defense witness but Walker, brought into court outside the hearing of the jury, said he would invoke his Fifth Amendment right against self-incrimination if called as a witness – despite the fact that he had already pleaded guilty to his part in the killings.

The trial judge, Renee Cardwell Hughes, who has since retired, then denied George’s motion to let the jury hear Walker’s videotaped confession where he said he and his half-brothers – not Brown – killed Williams and Lacey.

Justice Debra McCloskey Todd, who wrote the majority opinion joined in by three other justices, wrote that Judge Renee Cardwell Hughes’ ruling to exclude Walker’s statements from Brown’s trial was not “harmless error.”

Todd wrote that it would be difficult to see how the prosecution “could carry its burden of demonstrating that the trial court’s exclusion of Walker’s statements in which he admitted to conspiring with two other individuals to having murdered Williams, and to having personally shot Williams, was harmless beyond a reasonable doubt.”

Todd wrote that Walker’s statement would have shown that two others – not just Brown – was involved in the shooting and would have “thus directly contradicted the Commonwealth’s theory of the case that [Brown] acted in conjunction with only one other person to shoot the victims.”

Two justices – Chief Justice Ronald D. Castille and Justice J. Michael Eakin – wrote opinions concurring with the majority in part but dissenting on the decision to grant Brown a new trial.

Castille wrote that the majority’s decision “today is a boon for this one defendant, the holding will be a bane for future defendants because the Court’s reasoning invites the [prosecution] to employ hearsay declarations of co-conspirators to inculpate defendants on trial.”

Eakin wrote in his dissent that the trial judge was best positioned to decide whether Walker’s testimony and statements should be allowed into evidence.

“The trial court pointed out that Walker’s confession was completely contradictory to the statements he made under oath during his guilty plea colloquy,” Eakin wrote. “The majority does not address the trial court’s finding or the inconsistency between the confession and the colloquy. The trial court determined this contradiction negated any indicia of reliability or trustworthiness in the prior statement.”

Eakin noted that Walker had been given “Miranda warning” about his Fifth Amendment right not to speak to police and to have a lawyer present, the justice call the Miranda warning “At best an abstract and neutral factor.”

“Miranda warnings do not make that which follows trustworthy,” Eakin added. “People lie to police all the time, warnings or no warnings, and I see no abuse of discretion in crediting statements to a court under oath rather than semi-exculpatory statements to police.”

Defense attorney George, who handled the appeal with law partner Patricia McKinney, said that he was pleased that Brown will have a new trial – this time with the jury hearing Walker’s videotaped confession.

George, however, said he was also disappointed that the state Supreme Court affirmed the prosecution’s ability to use the uncorroborated statements of the three other witnesses after they had recanted them at trial.

George said that the typical prosecutor’s response to a witness recantation is to have the homicide detective who did the interview, read the original confession to the jury. Thus, George said, the jury must decide between credibility of the nervous witness with a criminal record recanting the statement they signed, or the polished detective reading the original statement.

It's a tough hurdle for the defense to clear, George added.

By affirming this procedure, George said, the high court has made things easier for prosecutors.

As for the significance of the Supreme Court’s ruling on Jasaan Walker’s statement for other cases, George said he was unsure how often a secret guilty plea involving a potential witness might occur.

On that, defense and prosecution are in agreement.

Assistant District Attorney Susan Wilcox, who worked on the appeal for her office, said the grant of a new trial based on the suppressed videotaped statement was “pretty narrow. It’s not something that will have much impact . . . I think really just applies to this case.”