Sixteen years ago, Johnny Berry received a handwritten letter that had crisscrossed Pennsylvania, from the Albion state prison to Berry’s father’s house in Philadelphia and back up the country roads of Montgomery County to Graterford Prison, where Berry unfolded it in his cell and wondered if his luck had changed at last.
A man named Tauheed Lloyd, who as part of a plea deal had named Berry as his accomplice in the 1994 murder of 73-year-old Leonard Jones, wrote in the letter that he took it all back.
“My reason for creating a story … was my way of ‘seeking revenge’ … for giving my name to the district attorney,” Lloyd wrote. “Also, I seen an opportunity to receive a lesser sentence.”
It was one of many moments when it looked like Berry might not spend the rest of his life in prison after all.
Yet he is still there.
Whether Berry might have one last chance to be exonerated depends in large part on whether Philadelphia’s new district attorney, Larry Krasner, holds true to his promise to build a different type of Conviction Review Unit to examine innocence claims. Last year, the unit received 129 applications; of those, seven are under investigation, 93 were declined or rejected, and just two were exonerated. The rest are awaiting review.
Berry, a juvenile lifer, was up for resentencing last fall when Common Pleas Court Judge Barbara McDermott asked the District Attorney’s Office to consider investigating his innocence claim.
But at a status hearing Wednesday, the office still did not have a response. “I don’t know what the new process is,” Assistant District Attorney Chesley Lightsey said. And if the case is reviewed, Lightsey said, “I don’t know how long it will take whatever the new regime in that unit will be.”
Berry has had 24 years of hopes raised, then dashed.
Growing up in West Philadelphia, he lived with his father — who worked repairing car radios and televisions — a stay-at-home mother, and four younger siblings. He dropped out of West Philadelphia High School after the 10th grade. “I was asked to read in front of the classroom,” he said in a recent interview, “and I couldn’t really read, so I left.”
Instead, he started hanging with drug dealers who ran a ring centered at 46th Street and Lancaster Avenue.
“I wanted the money, the camaraderie,” he said. “They treated me like family.”
He sold, by his own account, a great deal of crack. As turf wars heated, he obtained guns. Once, he was arrested with an assault weapon, a MAC-11, and sent to a juvenile hall.
Then, in 1994, he got word police had kicked in his mother’s door, looking for him in connection with a robbery.
“I knew I didn’t do it, so I turned myself in,” he said. “I sold drugs. It was pretty lucrative. I didn’t need to rob anyone.”
The case was straightforward. Two young black men had spotted an elderly man and a younger woman sitting in a van. One trapped the woman in the van by holding the passenger door shut. The other went to the driver’s side and pointed a gun at the man, yelling at him to get out, and then shot him. Both teens fled.
The woman, Michelle Brooks, described both teens to police. The one who held her door shut was short like Berry and had a chipped front tooth. Police brought her a photo array, and she picked out Berry.
He was arrested a week or so later. He couldn’t offer an alibi. He’s not sure where he was that night. “I didn’t have anything constructive going on,” he said.
But at a preliminary hearing Aug. 31, 1994, came Berry’s first break — well, his first almost-break. After seeing him in court, Brooks testified he was the wrong man. The case was dismissed.
Then, in September, police picked him up again and booked him for the same crime.
While Berry was in juvenile detention, though, he got a key piece of information about his case. It felt like another lucky break at the time.
A kid he met there said another young man — Lloyd, who was also detained on an unrelated robbery charge — had bragged he was one of Jones’ robbers. Berry begged the kid to go to court on his behalf. He also went straight to Lloyd and asked him to set the record straight; an altercation followed.
So, months later, when Lloyd was found in possession of the gun that used to shoot Jones and charged with the murder, he implicated Berry as the shooter. In return for a promise to testify, Lloyd got a sentence of 15½ to 37 years instead of life in prison.
Brooks was called again as a witness in Berry’s trial, but her testimony was confused and contradictory. She said at various points that he was the shooter, that he was the accomplice, and that he wasn’t there at all.
Then Lloyd took the stand and pointed a steadfast finger at Berry.
When the foreman said “guilty,” Berry was stunned.
“I couldn’t believe it,” he said. “It felt like a nightmare.”
In prison, he dedicated himself to fighting the case. He hired investigators, and sent them to plead with Lloyd. Lloyd always declined to speak.
Then John Rush, a former prison chaplain who headed a Lancaster-based Christian prison ministry, Justice and Mercy, took an interest even though Berry had become a devout Muslim in prison. He visited Berry and liked his positive outlook.
“Even though he claimed to be falsely accused,” Rush said, “he didn’t seem to hold much bitterness.”
Rush reached out to Lloyd, who at first resisted, but in October 2002 sent the letter to Berry’s father recanting his testimony.
In it, he included an admonishment to Berry. “It would of came sooner if you would of kept it funky.” He added: “I don’t want you to get the impression that I’m coming clean out of some feelings of remorse for you, now that ain’t the case at all.”
It took two more years, and several visits from Justice and Mercy advocates. But eventually, Lloyd agreed to testify. Rush recalls watching Lloyd appear in court via video conference from prison in 2007, stating that Berry was innocent.
Then, the judge cut the testimony short. He told Lloyd to take 30 days to consider the consequences.
After that, Lloyd was appointed with a lawyer. The judge retired. And by the time the case returned to court a year later, Lloyd had decided to invoke his Fifth Amendment right.
Rush had hoped the district attorney might offer him immunity to testify. Instead, the prosecutor on the case confirmed in court that if Lloyd’s testimony changed, prosecutors would pursue perjury charges against him. And, she added, “Mr. Lloyd is also subjecting himself to a possible retrial on the charge of murder in the second degree for this crime.”
Without Lloyd’s testimony, Berry’s petition was dismissed. He was out of options.
Then, hope flickered to life again with a series of Supreme Court decisions finding automatic life without parole sentences for juveniles to be unconstitutional and forcing states like Pennsylvania with large numbers of juvenile lifers to revise such sentences retroactively.
For the families of victims like Jones, the resentencings have been excruciating. Jones’ wife, age 90, testified as much at Berry’s hearing, as did his son and one of his daughters.
“Mr. Berry has never apologized for his actions, nor has he ever taken responsibility. I’m not here for revenge, just fairness,” Jones’ daughter Shirley Jones Hopkins said before asking the judge to resentence Berry to at least 35 years to life.
Berry was hoping for mercy. In most such cases, a mitigator assembles a packet describing the inmate’s prison record and the personal history that preceded the crime. Jean Bickmire, Berry’s mitigator, couldn’t help including his side of the story.
“The court wants to hear that he’s sorry and remorseful before he can be released, so it’s problematic to keep saying you’re innocent,” Bickmire conceded. “But there was no way to really downplay it, because that’s the whole crux of his case.”
So far, a handful of juvenile lifers who had claimed they were innocent have been resentenced and paroled. At least one other, Terrance Lewis, is arguing both for a new sentence and exoneration simultaneously.
Going into his resentencing, Berry didn’t imagine he’d get a chance to clear his name. “Judge, I did not participate in that robbery,” he said in court. Then he added, “I understand that, really, the question of innocence is really not of concern today.”
McDermott interrupted him: “It’s always of concern to this court.” She said she at least wanted to know the facts.
If Berry is innocent, he could be released. If not, she said in October, his revised sentence would likely be 30 years to life.