In an unusual sealed opinion, a federal judge has dismissed a Baltimore wrongful conviction lawsuit in a decision that seems to hinge on claims that the plaintiff used false evidence to win his freedom.
Details of the opinion will not be available until later this month, when the document is set to be unsealed following a redaction period.
But in her one-page order, U.S. District Judge Ellen Hollander agreed to dismiss the lawsuit as a sanction against the plaintiff, Jerome L. Johnson, and pointed to a motion in which defense lawyers claimed that Johnson fabricated evidence as he sought to overturn his conviction.
The decision is another victory for the law firm that represents Baltimore police officers in wrongful conviction lawsuits on behalf of the city, Nathan & Kamionski LLP. The Chicago firm is known for its aggressive approach to winning these cases.
In the latest case, Nathan & Kamionski claimed that Johnson obtained two false affidavits in order to win his freedom. Johnson was convicted of first-degree murder in 1989 based largely on the testimony of a teenage eyewitness who said Johnson handed a gun to another man, Alvin Hill, who used it to fatally shoot the victim.
Hill claimed in his affidavit that it was another man, not Johnson, who handed him the gun used in the murder. That man, Paul Burton, also signed an affidavit claiming that he handed the gun to Hill. It later became clear that the affidavits were false — Burton was in state prison at the time of the shooting and could not have been present or handed Hill the gun.
To the city’s lawyers, these affidavits represented fabricated evidence that Johnson used to fraudulently win his freedom in 2018, after spending 30 years in prison.
“Plaintiff built a lawsuit based on false affidavits that were relied on to procure Plaintiff’s release,” Shneur Nathan and Avi Kamionski wrote in a motion for sanctions filed late last year. “In fraudulently gaining his release, Plaintiff re-victimized (the victim) and his family when he sprung out of prison before serving his full sentence.”
Johnson’s lawyers, however, argued that the affidavits were not the reason Johnson’s conviction was overturned, and that Johnson did not know the affidavits were untrue when he procured them. The affidavit from Burton, which one of Johnson’s previous lawyers obtained in 1997, had been proven false years earlier and was known to be unreliable when prosecutors re-investigated Johnson’s case in 2018.
The Baltimore State’s Attorney’s Office ultimately supported vacating Johnson’s conviction after the re-investigation. The office’s Conviction Integrity Unit concluded that the primary eyewitness had changed her story repeatedly and that another witness said Johnson was not present at the shooting.
The CIU also found two alibi witnesses who said that Johnson was across the street when the shooting took place. Two of Johnson’s co-defendants, one of whom was also convicted, told the CIU that Johnson did not participate in the killing.
The re-investigation did use Hill’s affidavit, but only to the extent that Hill said Johnson was not present at the shooting, Johnson’s lawyers wrote in court papers. Prosecutors in the CIU concluded that Johnson’s trial likely would have ended differently if all of the new evidence had been available to jurors.
Nathan & Kamionski also claimed in their motion for sanctions that Johnson tried to influence witnesses, including a second eyewitness to the shooting. It is not clear which claims were the basis for Hollander’s decision to throw out the case because her opinion is sealed.
Hollander did not give a reason for sealing the opinion.
The strategy of claiming evidence was fabricated has worked for Nathan & Kamionski before in other Baltimore cases.
Last year, a federal judge tossed a lawsuit brought by Tony DeWitt after the firm alleged that he had forged a police memo and tried to bribe witnesses to win his freedom in a 2002 murder case.
U.S. District Judge Deborah Chasanow ordered DeWitt to pay the city’s attorney’s fees in a scathing ruling: “In one fell swoop Plaintiff’s actions undermined the public confidence in the integrity of law enforcement and the competence of state and federal courts,” she wrote.
Part of Nathan & Kamionski’s success in the DeWitt case came from listening to recorded prison phone calls. The lawyers have formed a company called Pointed Discovery that offers “expedited prison call review services” to help clients build cases.
Another wrongful conviction case settled for $125,000 in 2020 after the firm accused the exoneree, Garreth Parks, of fabricating a police officer’s notes to create exculpatory evidence. Park’s lawyers disputed that the document was a fraud.
DeWitt’s and Parks’ cases did not go through the Conviction Integrity Unit, which Baltimore State’s Attorney Marilyn Mosby launched in 2015 to review claims of actual innocence.
Johnson’s case stands out because it did receive a review from the Conviction Integrity Unit. Johnson also received a $2.3 million payment through Maryland’s Board of Public Works in 2019 as compensation for the time he spent incarcerated.
Kobie Flowers, one of the lawyers representing Johnson, declined to comment on the dismissal because Hollander’s opinion is sealed.
James Bentley, a spokesperson for Baltimore Mayor Brandon Scott, said the city is “aware of the decision and will reserve any comments for the appropriate judicial forum.”