Doubts in Death Row Case Put to En Banc Court

     PHILADELPHIA (CN) – The en banc Third Circuit met Wednesday to a consider a judge’s finding that bad police work put James Dennis on death row.
     “This case presents exactly the kind of extreme malfunction that habeas was designed to address,” Amy Rohe, an attorney for Dennis with the Washington firm Arnold & Porter, told the judges.
     Rohe’s client was sentenced to death for a robbery-murder near a train station in Northeast Philadelphia, just around 2 p.m. on Oct. 22, 1991. One of the teens, Chedell Williams, died from a bullet through his neck.
     At 5-foot-5 and 125 pounds, Dennis was a far cry from descriptions eyewitnesses gave of the assailant. The statement one witness gave to police described the assailant as 5-foot-9 and 170 pounds.
     The defense wanted all nine eyewitnesses to participate when Dennis volunteered for a lineup, but the state presented just four of the nine, and all four had already picked Dennis out of a photo array.
     Of this quartet, three picked out Dennis. The fourth picked another suspect in the lineup. Three others shown only the photo array had also picked someone else.
     The witness who described the 5-foot-9 assailant had been among those who skipped the lineup. He didn’t see a photo array either, but prosecutors called him to testify against Dennis at trial.
     Dennis also had an alibi for the time of the murder – he had been taking a bus from his father’s home to the Abbotsford Homes project. A neighborhood acquaintance even remembered seeing him at a bus stop half a mile away from the crime scene.
     Unfortunately for Dennis, however, the alibi could not remember the time at which she took the bus. Because the welfare receipt she picked up before the bus ride had been marked in military time, 13:03, she later testified that she thought the time referred to 3:03 p.m., thus meaning she would have taken the bus with Dennis at about 4 p.m., instead of at 1:56 p.m. as he claimed.
     A federal judge cited each of these issues in overturning Dennis’ conviction, but a divided three-judge panel of the Third Circuit reversed earlier this year.
     That decision has been vacated in favor of an en banc rehearing, which featured close scrutiny of the receipt Wednesday in the James A. Byrne U.S. Courthouse.
     When the Pennsylvania Supreme Court had previously denied Dennis relief, it found that the prosecutors had not withheld receipt. It also deemed the receipt itself immaterial.
     Rohe urged the Third Circuit not to fill in the legal and logical gaps that the state court left open.
     Dennis has argued that the failure of his lawyer to obtain a copy of the welfare receipt demonstrated ineptitude, but prosecutors have parried that argument by noting that the receipt is a publicly available document.
     Judge Brooks Smith asked Rohe whether it is “reasonable to construe that the Pennsylvania Supreme Court had in mind that this evidence, i.e., the [receipt], was publicly available.”
     Precedent cited in the now-vacated opinion says there is no reasonable diligence requirement for publicly available information an unreasonable application of clearly-established federal law.
     Rohe countered: “If they wanted to say it was accessible, they would have said.”
     For Ronald Eisenberg, representing the Philadelphia County District Attorney’s Office, consideration of a welfare receipt would not have fundamentally altered the process that already found Dennis guilty by jury.
     Eisenberg also defended the court’s ability to supply its own reasoning where it was left out by state courts. “If the District Court believes the state court didn’t properly articulate reasons as to why [evidence] was not material, this court must examine arguments that could have supported the court’s holding,” he said.
     “Can you please just tell us what our job here is?” Judge Michael Fisher asked.
     “We’re all digging for that here,” said Chief Judge Theodore McKee.

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