Judge refuses to bar retrial in DNA mix-up

Calling it an "intolerable mistake" but not a prosecution attempt to subvert a fair trial, a city judge has refused to bar the retrial of a North Philadelphia man whose 2007 death sentence was invalidated because of a mix-up in DNA evidence.

Lawyers for Kareem Johnson, 31, argued Thursday that the DNA mix-up that resulted in his death sentence in the 2002 shooting of Walter Smith was so egregious that retrial should be barred under the Constitution's "double jeopardy" provision, which bars successive trials for the same conduct.

Common Pleas Court Judge Benjamin Lerner, in his final day on the bench, said the evidence error was part of a "gross series of unimaginable mistakes by experienced police officers and experienced prosecutors."

Nevertheless, Lerner continued, court precedent holds that barring a retrial is "the most extraordinary of remedies. . . . The Commonwealth and prosecution must have engaged in a pattern of intentional mistakes so severe and so sustained that the only conclusion is an attempt to subvert justice and deny the defendant a fair trial."

Johnson's lawyers, Gregory J. Pagano and Marc Bookman, director of the Atlantic Center for Capital Representation, a Philadelphia nonprofit that supports capital defense lawyers, said they would appeal Lerner's ruling to Superior Court.

Regardless of the outcome of Johnson's retrial, he will never see freedom again. He is serving life without parole for fatally shooting 10-year-old Faheem Thomas-Childs as the boy walked to his North Philadelphia school in 2004 during a gunfight that involved rival gang members.

Bookman and Pagano argued that the mistakes in investigating and prosecuting Johnson amounted to "prosecutorial misconduct." But Lerner said he found credible Assistant District Attorney Michael Barry's explanation of the error.

Assistant District Attorney Andrew Notaristefano told Lerner the mix-up was an "honest mistake" that Johnson's trial counsel also missed.

Johnson was convicted in part because of what prosecutors said was Smith's blood on Johnson's red Air Jordan baseball cap. The cap was found near Johnson's body.

Only last year, during Johnson's appeal hearings, did defense lawyers find 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. The red cap contained only Johnson's DNA in its sweat band.

Barry and William Trenwith, the police crime scene investigator on the case, testified last month that they never knew a black hat had been recovered until last year's hearings.

Though Lerner ruled that the mistake was not caused by police or prosecution misconduct, he was unsparing in describing the result: "It produced a trial that was a farce."

jslobodzian@phillynews.com

215-854-2985 @joeslobo