City judge's reversal stunned prosecutor

Two days before Christmas, then-Common Pleas Court Judge Joyce W. Eubanks had to decide the fate of a home health-care worker charged with looting jewelry from an arthritic woman he had been sent to assist in her Society Hill condo.

Sitting without a jury, the judge found the man guilty of stealing about $14,000 in jewelry in an impulse robbery.

Less than a week later, Eubanks changed her mind.

She vacated her verdict and pronounced Louis L. Robinson not guilty.

In brief remarks from the bench to a flabbergasted prosecutor, Eubanks said she had failed the first time around to give enough weight to the 15 character witnesses who had stood up on behalf of the accused man, though none of them testified.

Among those witnesses: former Philadelphia Police Commissioner Sylvester M. Johnson.

What Eubanks did was extremely unusual, and, according to a 50-year-old state Appellate Court ruling, contrary to the law: "The hearing judge has no right, after a finding of guilty, to change his mind . . . and enter a finding of not guilty."

An Inquirer review of about 150,000 resolved criminal cases filed in Philadelphia between 2006 and 2008 found that this was the only time a judge acquitted a defendant after first finding the accused guilty.

In an interview, Eubanks defended her reversal, saying she could undo her verdict in the "interest of justice."

"My moral commitment is to do justice," she said. "And sometimes you take the difficult road, and you don't stand with everybody. I tell my children, 'Take a difficult road because you do it on principle.' "

Eubanks said she had known that a man named Sylvester Johnson was among the character witnesses, and had even jotted down the name, but hadn't realized he was Commissioner Sylvester Johnson.

"I've seen him on television. I've seen him in person," said Eubanks, a lawyer with the Defender Association for 22 years. But, she said, "I did not look at the character witnesses. None of them came forward in the courtroom."

Johnson said he had known Robinson for about five years as a family friend and fellow Muslim.

Robinson has "never been in trouble in his entire life," held two degrees, and was a registered nurse, Johnson said. "For him to go around and do something like that was totally out of character."

Susan Chernin, 67, a retired therapist for the City of Philadelphia who was the victim of the heist, said she was livid and baffled by how her case had played out.

"I worked in public service all my life. I care very much about that," she said. "Even though I am on a walker and have trouble moving, I went to every hearing. I did everything right. And this is how the justice system treated me."

The Philadelphia District Attorney's Office has appealed Eubanks' decision.

"A judge does not have the legal power to change a verdict after the fact," said Tasha Jamerson, spokeswoman for District Attorney Seth Williams.

When Eubanks heard the case, she had only a few days left on the bench, having lost in the November election. Gov. Rendell had appointed her in 2008 to fill a vacancy. Party leaders blamed her defeat on her ballot position - she was last, at 37th.

But her days as a judge may not be over. U.S. Rep. Bob Brady, chairman of the city Democratic Party, said he intended to ask the governor to reappoint her.

"We're going to try, absolutely," Brady said. "She's a good judge, has been approved by the Bar Association, and she's done a great job."

Eubanks and Johnson share a political connection. Both were allies of the late Carol Campbell, a city councilwoman and Democratic ward leader.

Eubanks was a legal counsel to the councilwoman. Campbell backed Johnson's appointment as police commissioner.

In a well-publicized episode, when Campbell was charged with campaign-finance violations in 2001, Johnson saw to it that she underwent pretrial processing in private, at Brady's ward office, rather than in a police building.

Johnson, who retired in 2008 and lives in Delaware, said in an interview that he barely knew Eubanks. "The judge owes me no favor," he said.

Until a reporter called, Johnson said, he hadn't known that the judge had reversed herself.

"This is the first I ever heard of it," he said.

Chernin, a diminutive and resolute woman who lives in an elegant condo with two cats, began a long battle with progressive arthritis at 37.

These days, retired five years, she gets about with the help of a cane, a walker, and a scooter. Her body is a patchwork of replaced parts: two new hips and a new right shoulder.

It was the shoulder surgery that set the stage for the theft, Chernin believes.

On Aug. 31, 2008, she had just returned home to recuperate. At her hospital's suggestion, she contacted Home Health Corp. of America in Valley Forge, since bought by Amedisys, to hire a home health-care worker.

To assess her needs, the agency sent Robinson.

He arrived at the condo about 9 a.m. that Sunday. Chernin asked him to move furniture in and out of her bedroom. He did so, out of Chernin's line of vision. She was essentially immobile, sitting on the sofa in the living room, she said.

Having moved the furniture and completed his interview, Robinson, then 43, left after about an hour.

"I thought he was very nice," Chernin testified.

Shortly after that, another home health-care worker arrived. The woman stayed only about 20 minutes in the living room and never left her sight, Chernin said.

Some time later, Chernin said, she went into her bedroom and burst into tears. Her bureau had been rifled, and jewelry boxes had been tossed about, she said.

Missing were gold rings, earrings, pins, bracelets, and more. Some of the most precious missing jewelry items had been gifts from her late mother, she said.

Chernin called police. She also contacted a friend in the building, Eva Bentley.

"She was crying, and she was out of her mind," Bentley, 75, said in an interview. "She told me what happened. She was very, very upset, which is understandable."

The jewelry had been untouched that morning before Robinson entered the room, Chernin said. Only the nurse could have taken it, she said.

Chernin's sister Celia Rosenzweig provided some corroboration. In an interview, Rosenzweig said she had helped her sister into bed the night before Robinson arrived. No boxes were scattered about the bed then, Rosenzweig said.

After listening to Chernin's account, detectives arrested Robinson on charges of theft and receiving stolen property.

On Dec. 23, Robinson and Chernin arrived at the Criminal Justice Center for the trial.

Presiding was Eubanks, 60, who had long set her sights on becoming a judge. Her 2009 bid to stay on the bench was her third unsuccessful run for a judgeship since 2005.

After Rendell appointed her, an Inquirer review of court records shows, Eubanks was markedly more lenient than other judges in Common Pleas Court.

While defendants in Common Pleas Court overall are convicted three-quarters of the time, Eubanks found them guilty only about half the time, the Inquirer analysis shows. That was based on a review of the most serious crimes: murder, rape, robbery, and assault.

Robinson's case unfolded much like many of the 2,000 or so theft cases filed every year in Philadelphia courts.

The investigation was nothing out of CSI. Police didn't fingerprint the jewelry boxes or the bureau. Nor did they recover any of the stolen items.

The case was strictly circumstantial, a classic "she said, he said" whodunit.

In her testimony, Chernin gave her account of how Robinson had been the only person out of her sight during the time the valuables disappeared.

When Robinson took the stand, he described a visit with Chernin that was unremarkable and professional. He was never asked whether he had stolen the jewelry.

Next, Robinson's lawyer, Qawi Abdul-Rahman, presented his 15 character witnesses, including relatives.

None took the stand, and there are no written statements from them in the court file. Johnson said he had not submitted anything in writing.

Instead, Abdul-Rahman identified each witness and had him or her stand. "They know Mr. Robinson from the neighborhood, and they know him to be a peaceful, law-abiding person," the lawyer said, according to a trial transcript.

Johnson was the last introduced.

In his closing argument, the defense lawyer argued that it "doesn't make sense" that Robinson would stage such a slapdash robbery, leaving empty jewelry boxes strewed about.

He pointed out, accurately, that a judge or jury can acquit on the strength of character testimony alone.

Assistant District Attorney Kathleen Shields countered: "The only person who ever went into that bedroom after Ms. Chernin that morning was the defendant."

Without explaining her reasoning, Eubanks convicted Robinson of third-degree felony theft. She acquitted him on the charge of receiving stolen property.

Eubanks sentenced Robinson to 18 months of probation. The only matter left was restitution.

The judge set a hearing on that for six days later, Dec. 29.

The restitution hearing turned into something else entirely. Eubanks got right to the point.

"The court on Dec. 23 failed to give due consideration to the weight of character evidence, and because the court failed to do that, in the interests of justice the court is setting aside the sentence, resting judgment, and entering a verdict of not guilty," she said.

Assistant District Attorney Ebony Wortham immediately protested.

"Your honor's procedure and decision today is outside the bounds of the law, and I will submit to your honor that the conviction should be reinstated and that the case should continue as it is supposed to, which is to have the status-of-restitution hearing," Wortham said.

"OK," replied the judge. "Thank you."

Trial over.

Eubanks later entered her acquittal into the record with a written order.

Actually, she filed two written orders, and signed both.

In one, the judge said had reversed herself in response to a motion from Robinson's lawyer. The other makes no mention of a defense pleading.

In the interview, Eubanks said she had reversed herself on her own. "There was no defense motion," she said.

As for her order citing such a motion, "that probably was a mistake," she said.

In their appeal, prosecutors intend to argue that the reversal was barred by legal precedent.

Appellate courts in Pennsylvania have ruled for years that judges have no more authority to set aside their own verdicts than they do to reverse jury outcomes.

Once a judge convicts or acquits, "the trial court is limited to rectifying trial errors, and cannot make a redetermination of credibility and weight of the evidence," a three-judge panel of state Superior Court ruled in 1995.

Dennis J. Cogan, an experienced Philadelphia defense lawyer, agreed with prosecutors. Citing case law, he said Eubanks had "clearly exceeded her authority."

Robinson did not return a telephone message left with his wife at their home in Newark, Del. His lawyer declined to comment.

Though Robinson was not sentenced to jail time in the initial verdict, a felony conviction could have damaged his career. For a nurse, a criminal conviction can mean penalties ranging from a reprimand to license revocation.

As it is, Robinson may already face licensing problems. In a license-renewal application filed with Pennsylvania last year, he answered "no" when asked whether he faced any pending criminal charges.

At the time, he was awaiting trial in Philadelphia.

Charlie Young, a spokesman for the Pennsylvania Secretary of State's Office, said providing a false answer on a license-renewal form was serious and could trigger penalties.

Though Young said he could not comment on whether the agency was investigating Robinson, he said that in general, "any time we receive information, we make appropriate inquiries."

In a story filled with twists, this saga has one more odd turn, another nasty one for Susan Chernin.

On Jan. 3, someone entered her condo while she slept, crept into her bedroom, and took a credit card, $400, and what was left of her jewelry, she said. The items taken were worth $5,000, she said.

Police said her story was credible. They said someone had fraudulently used her credit card to buy gas on the day of the robbery. Chernin does not own a car.

What's more, the condo security-system video shows an intruder riding the elevator up to Chernin's floor and then fleeing the building by running out a fire door.

The man in the video is not Robinson, police said. Detectives said they had a suspect, a career thief in Center City. They said the latest crime was just another bad break for Chernin unrelated to the earlier theft.

Chernin doesn't buy that.

In court Dec. 23, she testified that she routinely left her front door unlocked. That way, friends could enter freely, sparing her the slow and painful process of rising to let them in. The building has front-desk security and locked ground-floor doors.

Chernin's theory is that someone in court that day decided she was an easy mark.

"I do believe I was targeted," she said. "It's too much of a coincidence."

Now her hallway door is locked. Despite her experience so far in court, Chernin said she would go back to testify if police made an arrest in the second robbery.