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In a “stunning legal victory” reported yesterday by the Philadelphia Inquirer, Common Pleas Court Judge Benjamin Lerner ruled that the state is barred from retrying three men whose 2006 murder convictions were vacated due to prosecutorial misconduct.  Citing a rarely invoked Pennsylvania Supreme Court precedent, which holds that double jeopardy applies “when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial,” Lerner dismissed murder charges against Aquil Bond, Richard Brown, and Jawayne Brown.

The men’s convictions had been vacated in 2012 by an intermediate appellate court, which found the prosecutor, Assistant District Attorney Edward Cameron, had violated the defendants’ constitutional rights by introducing facts not in evidence.  During his closing statements, Cameron vouched for his key witness by telling the jury they should trust the man because he had helped the state to solve seven other murders.  The problem being, nothing about such cooperation or seven other murders had been properly introduced into evidence.  The defense objected twenty times, but the judge offered only curative instructions in response.  Reviewing the case, the court wrote, “We question the efficacy of these repetitive curative instructions necessitated by the [prosecution’s] serial improper questioning and argument.”

The men were granted new trials, and it was yesterday, during pre-trial hearings for these new prosecutions, that Judge Lerner granted a defense motion asking him to invoke the Pennsylvania Supreme Court’s double-jeopardy holding in Commonwealth v. Smith, and dismiss the charges outright.  In doing so, he said, “the prosecutor’s efforts . . . constituted deliberate attempts to destroy the objectivity of the jury and to prevent the jury from rendering a true verdict.”

The state, citing the brutality of the murder in question, vowed to appeal Lerner’s ruling and re-prosecute all three defendants.  One, Aquil Bond, is already on death row for an unrelated 2002 murder, and Richard Brown is serving life in prison for a different murder in 2004.

We might guess, then, that Judge Lerner felt he had an opportunity to make a point without a consequence.  But this isn’t the case with the third defendant, Jawayne Brown, who faces no other charges and would go free if Lerner’s ruling is upheld on appeal.

As Joseph Slobodzian of the Inquirer reported, “Lerner said that if judges began making exceptions to the right to a fair trial because the defendants were ‘bad people . . . then I think we’re beyond what makes this system uniquely fair and uniquely just.’”

It is indeed rare for prosecutorial misconduct to be met with such clear, unambiguous consequences, and for re-prosecution to be considered double-jeopardy.

The Open File will be following this case with great interest, and will be back soon with further thoughts on its possible implications.  Stay tuned.

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