PHILADELPHIA (CN) - After a federal judge found that "improper police work" put a man on death row for decades, the 3rd Circuit met Wednesday to pick apart the inconsistencies.
U.S. District Judge Anita Brody's 2013 ruling that ordered Pennsylvania to either free or retry James Dennis on murder described a comedy of errors by police, prosecutors and defense counsel.
Dennis, a slight, 5-foot-5 man who weighed 125 pounds, was a far cry from descriptions eyewitnesses gave of a man who fatally shot a high school student in the neck after trying to rob her and a classmate near a train station, just around 2 p.m. on Oct. 22, 1991.
The statement one witness gave to police described the assailant as 5'9 and 170 pounds.
This individual, one of nine eyewitnesses, testified against Dennis, even though he was never shown either a photo array or a lineup.
Dennis' trial attorney had requested that all eyewitnesses participate when his client 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, one picked another suspect from the lineup. Three others shown the photo array had also picked someone else.
Dennis' attorney Stuart Lev highlighted these issues in urging a three-judge appellate panel to affirm at a hearing Wednesday.
"There is no corroboration for any of the identifications," Lev said. "Broad daylight -you would think their descriptions would be accurately matching Mr. Dennis."
Dennis 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, and 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 her 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.
Regardless of the time issue, the location of that bus, a half mile from the scene of the crime, proved interesting to the appellate panel.
"What's the likelihood that if he was on that bus, he would walk an additional half mile?" Judge Michael Fisher asked. "That doesn't make sense."
Another inconsistency that the judges considered was testimony from police about clothing they seized on the day they arrested Dennis.
Though the state supposedly lost the clothes before trial, a detective claimed that the items "fit the description of [those] worn by the perpetrator."
An incredulous Lev pointed out to the court that the real perpetrator's clothes would likely have been stained.
"Shoot someone at close range in the neck, chances are there's going to be blood on his clothes," Lev said.
Judge Brooks Smith agreed. "Chances are," he said.
Smith also emphasized how police withheld a statement given by a Montgomery County Jail inmate who claimed to have spoken to two men with detailed knowledge of the murder, including the victim's boyfriend's name and the site of the murder.
"The Philadelphia police took this guy out of jail and drove him around and showed him places," Smith said of the inmate. "So there was an investigation, and the cops just decided, in their view, it wasn't enough. They didn't think it warranted further attention on their part."
Philadelphia District Attorney Thomas Dolgenos said that the issue of the investigators' competence was never raised during trial by Dennis's defense.
Brody ruled that the failure of the DA to provide exculpatory evidence, and the failure of Dennis' lawyer to obtain it himself, was significant enough that the evidence would have changed the outcome of Dennis's trial.
Lev argued that the case against Dennis was even weaker than the 1995 Supreme Court case in Kyles v. Whitley, which set an affirmative duty for prosecutors to produce such exonerating evidence.
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