By Nathan Gorenstein
The Philadelphia Inquirer
PHILADELPHIA — Zachary Wilson’s status may be unique among his fellow death-row inmates at Graterford Prison. It is not that he was convicted of two fatal shootings in the 1980s, one in a bar, another at a craps game.
It is that after years of litigation, both verdicts have been tossed out.
The unusual double victory, obtained in separate appeals by federal public defender Michael Wiseman, means Wilson, 54, could be freed or could remain in prison with a legal fight stretching on for years.
Philadelphia District Attorney Seth Williams appears to be opting for a fight. After ignoring a federal court order for five years, prosecutors last month moved to retry Wilson for one of the murders, a 1982 killing over a gambling dispute.
The long, complex appeals are not about whether Wilson committed either killing, but whether his trials were fair. “Whether Mr. Wilson is guilty of either or both has never been determined by a fair process,” Wiseman said, “and the Constitution requires a fair trial.”
The first decision in Wilson’s favor was made in 2005, when a federal appeals court ruled that at the time of his trial in 1984, African Americans had been excluded from the jury that found him guilty of killing David Swift in a gambling dispute on Haines Street in Germantown. The court vacated Wilson’s conviction and life sentence and gave prosecutors 180 days to retry him.
That never happened.
Still, it appeared Wilson would never get out of prison, because, after receiving the life sentence in Swift’s killing, he was tried in 1988 for a 1981 killing in a North Philadelphia bar. Because of his first murder conviction, he was sentenced to die after he was found guilty in the second case.
Ever since, he has been on death row.
Then, two months ago and after more than a decade of litigation, the federal court threw out the barroom-killing conviction and Wilson’s death sentence.
This time, the reason was that the district attorney erred by not disclosing evidence that could have discredited the prosecution witnesses.
The court again gave prosecutors 180 days to retry, but a sharply worded decision suggested that the prosecution’s evidence was so thin, and the witnesses so tainted, that a retrial would likely end in acquittal.
Suddenly, the man who had been convicted of two murders was, technically, guilty of neither. Theoretically, he would soon be released after nearly 30 years in prison.
The district attorney reacted by taking Wilson to court from Graterford Prison last month and rearresting him in the Swift murder. Because murder defendants cannot be released on bail in Pennsylvania, the move keeps Wilson behind bars.
“It doesn’t seem fair to the citizens of Philadelphia to walk away from it,” said Thomas W. Dolgenos, the district attorney’s chief of federal litigation. “He got two murder convictions for a reason.”
Legal records show that Wilson, who was raised by a single mother in Northwest Philadelphia, had a history of run-ins with the law. A 1988 court-ordered psychiatric evaluation said he “appears best described as a personality disorder with severe paranoid elements.” Documents say his mother “routinely” beat him.
“I know some people may think he’s not the nicest guy in the world,” said Joel Trigani, Wilson’s attorney at the 1988 barroom trial, who said Wilson should not be subjected to another trial.
“There is enough disservice to this guy. . . . Zach always said this he didn’t do.”
The government’s case in the barroom trial rested on the testimony of three people. Two said they had seen Wilson fatally shoot Jamie Lamb in the crowded establishment. The third said Wilson had confessed during a jailhouse conversation.
What Wilson and his attorney didn’t know during the trial was that:
One witness had a lengthy history of schizophrenia and was taken for emergency psychiatric treatment the day after his testimony.
The second had three convictions for impersonating a police officer and suffered from brain injuries that impaired his memory.
The third, Wilson’s former cell mate, had a history of receiving “interest-free loans” from a police sergeant.
“Although the shooting occurred in a relatively crowded bar, no other eyewitnesses testified and the commonwealth presented no physical evidence implicating Wilson as the shooter,” a three-judge appeals court panel found.
“We have no doubt that . . . trial counsel . . . would have used all this information to impeach the commonwealth’s witnesses,” the judges added.
Even if some of that information was a matter of public record, the prosecution was obliged to tell Wilson’s attorney, the court ruled.
Attempting to retry Wilson in the Swift killing is a high-risk legal move, defense lawyers say.
In 2006, prosecutors declared they would not appeal Wilson’s overturned conviction to the U.S. Supreme Court; until last month - five years and 123 days after the expiration of that first 180-day deadline - they still had not moved to retry him.
Wiseman is asking the federal court to permanently bar Wilson’s retrial. In a court filing he called the district attorney’s move “tactical, vexatious, and abusive.”
“The time to retry him has long ago expired,” Wiseman said in an interview.
A retrial would certainly be difficult, Dolgenos said. “It’s hard to try any case 20 years later, especially when it doesn’t rely on documents. He’ll probably have a better [chance] now” of acquittal, Dolgenos said.
Bernard L. Siegel, a former president of the Pennsylvania Association of Criminal Defense Lawyers, said the district attorney could plea-bargain a resolution to both cases that would allow Wilson to be sentenced to time served and released.
If Wilson does get out, life on the outside will likely be difficult.
“It’s challenging for anyone in prison for almost three decades to get out,” Wiseman said. “We would do our best to help him make the adjustment.”
Copyright 2010 Philadelphia Newspapers, LLC