Judge may toss case against 1 shooting defendant
Ruling due Monday, when trial is to start
One of the two men charged with carrying out a 2016 mass murder in Wilkinsburg will find out first thing Monday morning — the day the trial is set to start — whether the case against him has collapsed.
The attorney for Robert Thomas, 31, of Homewood, filed a petition Thursday asking Allegheny County Common Pleas Judge Edward J. Borkowski to throw out the charges against his client because of a lack of evidence.
Lawyer Casey White’s request came after prosecutors decided late Thursday afternoon to not use a controversial key witness. Mr. White contends that without the witness, prosecutors are left with so little evidence to try his client that the charges must be dismissed.
Judge Borkowski said during a hearing Friday that he needed the weekend to review all the relevant materials before deciding whether to throw out the charges. He said he would announce his ruling Monday.
In a case filled during the past several weeks with 11th-hour twists and turns and lastminute decisions, Monday’s pending development could trump them all.
Whatever the judge decides about Thomas, he said unequivocally that proceedings will go forward against co-defendant Cheron Shelton, 33, of Lincoln-Lemington.
Thomas and Shelton are charged with gunning down five adults and an unborn child in an ambush-style shooting on March 9, 2016, during a backyard cookout.
Police suspect that Shelton sought vengeance for the 2013 shooting death of his best friend, Calvin Doswell, in Lincoln-Lemington. Lamont Powell, who was a suspect in that homicide but was not charged, was critically injured in the Wilkinsburg shooting, and the victims who died were his relatives.
Prosecutors have said they will seek the death penalty if the men are convicted of first-degree murder.
By leaving open the possibility of dismissing the case against Thomas, Judge Borkowski lent hope to Mr. White and another defense attorney, Michael Machen, that they might get their client off without a trial.
The decision by the Allegheny County District Attorney’s Office to not present testimony from the person known as Witness No. 3 marked the third time that prosecutors were prepared to use a jailhouse informant only to reverse course.
The testimony of the unidentified informant was put in jeopardy last week when it was revealed that he had confessed to killing a 15-month-old boy in 2013 but was not charged, and that he received financial consideration and relocation help from the authorities. None of that had been disclosed until recently.
Defense lawyers went berserk at the revelations and accused the DA’s office of deliberately holding back information that the defense could use to either help clear their clients or impeach the credibility of the witness.
The lawyers characterized Witness No. 3 as a crucial part of the case against Thomas.
On Thursday, the four defense attorneys — Mr. White, Mr. Machen and Shelton’s lawyers, Wendy Williams and Randall McKinney — jointly filed a 26-page motion alleging prosecutorial misconduct and violations of rules that govern the turning over of evidence. They wrote that “it becomes apparent that there has been a pattern of egregious non-disclosure and burying of Witness No. 3’s statements from the district attorney’s office.”
In the motion, the lawyers asked for a range of possible remedies, including outright dismissal of the charges, barring the death penalty, removing Assistant District Attorney Lisa Pellegrini, removing the entirety of the Allegheny County DA’s office for “profound misconduct,” and postponement.
“We are asking for the case to be dismissed because of this prosecutorial misconduct,” Ms. Williams told the court Friday. “This district attorney’s office cannot be trusted.”
In vigorously making her pitch to Judge Borkowski, Ms. Williams portrayed the DA’s office as making nefarious decisions in connection with the Wilkinsburg case. She attacked Ms. Pellegrini’s ethics, claimed that she exhibited a pattern of misconduct and complained about a series of delays by prosecutors in turning over materials.
Evidence was still coming in to the defense late this week, including documents turned over during the hearing, and Ms. Williams was clearly frustrated.
“There’s just no way to fix this,” she said.
Deputy District Attorney Kevin Chernosky pushed back against Ms. Williams’ assault on his colleague, claiming that Ms. Williams had mischaracterized information cited in a court opinion on a separate case that Ms. Pellegrini had handled.
While Mr. White scored at least a temporary victory Friday, Ms. Williams didn’t fare so well.
After a midday break, Judge Borkowski returned to the bench and ruled against Ms. Williams’ requests. The judge acknowledged that there were “shortcomings” in the way the prosecution had handled the case, but he ruled that there was no misconduct and said nothing that would warrant dismissal of the charges or disqualification of the prosecution.
“I characterized them as shortcomings. I didn’t characterize them as violations, and I’m not finding any,” the judge said.
The hearing represented yet another series of headspinning developments in the case. The latest surprise occurred Friday morning, when the judge summoned Juror No. 18, an alternate, for questioning about a previously undisclosed medical condition. After a brief series of questions, the judge dismissed her.
The most consequential development, however, was the decision to go to trial without Witness No. 3. Mr. White said in his filing that the DA’s office had found the witness to be “not credible.”
“Thus,” Mr. White wrote, “the only evidence that will be presented against Mr. Thomas is very circumstantial at best.”
In fact, Mr. White argued in his petition, the evidence is so flimsy that it does not even meet the lowest standard to hold Thomas for trial.
“In short, the underlying crux of the Commonwealth’s case is that the defendant was at or near the scene when five individuals and an unborn child were killed,” the petition states. “To date, however, the Commonwealth has failed to produce any physical evidence or eyewitness testimony that the defendant committed the crimes charged.”
It is not clear what Witness No. 3 would have said, but the joint filing indicates that the testimony would have related to a conversation with Thomas.
The witness became a hot-button issue because of his reported confession to killing toddler Marcus White Jr. in 2013 and statements that he was either involved with or knew about other violent crimes.
Paul Jubas, a lawyer for the boy’s family, has condemned prosecutors for the lack of charges and called for District Attorney Stephen A. Zappala Jr. to step down. Mr. Jubas and the boy’s family attended Friday’s hearing, but they declined comment after.
In his petition, Mr. White addressed cellphone records that prosecutors “believe they have” showing telephone communication between Thomas and Shelton on the night of the shooting.
“The actual substance of the telephonic communication is nonexistent,” the petition says. “There are neither recordings of the conversations nor copies of the text exchanges.”
Mr. White noted that the DA’s office also believes that Thomas entered a residence in Homewood about an hour after the killings. The filing does not make clear what the relevance is to the case, but Mr. White writes that the location is about two miles from the crime scene and that there were other people going in and out of the same home at the time.
“That,” Mr. White declares, “is the summary of the Commonwealth’s case in chief.”
“To reiterate,” the petition says, “there is no direct evidence that puts Mr. Thomas at the scene of the crimes on March 9, 2016. There is no physical evidence; a cast of a ‘boot print’ found at the scene was found to not match Mr. Thomas’. There is no scientific evidence; the only DNA found at the scene excluded Mr. Thomas as a contributor, there are no eyewitnesses. Finally, there is no ‘confession.’ ”
The DA’s office said its evidence boiled down to an alleged flurry of cellphone communication between Thomas and Shelton just before and after the shootings; cellphone tracking information that prosecutors claim placed Thomas “within a mile” of the crime scene; and video that the DA’s office claims can put Thomas and Shelton at a Homewood residence where ammunition was found of the same caliber — but a different headstamp — as the ammunition used in the killings.
Mr. White would not agree with the DA’s office on the significance of any of the evidence and said, “My client adamantly denies that number was in fact his phone number.”