Philly judge cites prosecutorial misconduct, vacates conviction of man who spent 28 years on death row

A decade after Orlando Maisonet was accused of participating in the robbery and shooting of a North Philadelphia pizza shop owner and subsequent murder of a rumored snitch, he was featured on the nationally televised series America’s Most Wanted and picked up in Puerto Rico.

At two separate trials, prosecuted by Roger King — known for attaining more capital convictions than any other prosecutor, under the administration of “America’s deadliest DA” Lynne Abraham — Maisonet was convicted of murder and ultimately sentenced to death.

But Maisonet’s conviction for killing pizza shop owner Ignacio Slafman was later overturned and, at a retrial in 2005, Maisonet was acquitted. And, last week, Philadelphia Common Pleas Judge J. Scott O’Keefe also vacated Maisonet’s conviction in the second murder, that of witness Jorge Figueroa, citing prosecutorial misconduct and ineffective defense counsel.

That means, after 28 years on death row, Maisonet will have to be retried or released.

Maisonet’s lawyers claimed King presented false evidence, withheld relevant evidence from defense lawyers, and failed in his obligation to notify the court of possible perjured testimony.

The Philadelphia District Attorney’s Office supported Maisonet’s request to vacate his conviction, though it did not concede there was misconduct. Both sides agreed that it was prejudicial that King showed the jury a clip from America’s Most Wanted that included a dramatization of the crime, and that Maisonet’s trial lawyer was ineffective for failing to object.

However, given that the judge found misconduct in the case, Boston College law professor and prosecutorial ethics expert Michael Cassidy said there’s a need for additional scrutiny — possibly even a review of all cases handled by the same prosecutor.

“This is a part of a pattern we’re seeing of old cases, 20- or 25-year-old cases, where prosecutors weren’t as attuned to their constitutional and ethical disclosure responsibilities as they are now,” he said. “I think the DA’s offices should be conducting audits of cases that are reversed to figure out why they are reversed, what went wrong.”

Maisonet’s represents the latest in a series of convictions attained by King to be overturned:

James Dennis, who was convicted of killing a teenage girl for her earrings back in 1992, was released in 2016 after a federal judge vacated his conviction because prosecutors and police withheld evidence. William Nieves spent six years on death row for a 1992 murder before he was retried and acquitted. Another man, Frederick A. Thomas, died while waiting for a new trial after his murder conviction was overturned in 2012 based on evidence police pressured a defense witness to stay away.

Chester Hollman III, who was convicted of murdering a University of Pennsylvania student in 1993, is currently in court on appeals; key witnesses against him claim they lied under pressure from police.

King died in 2016. Lynne Abraham, the district attorney in office when all of those cases were prosecuted, did not respond to requests for comment.

Maisonet’s conviction came after he spent 10 years on the run, and a decade after two brothers, Simón and Cobo Pirela, were convicted of the same murders.

At the Pirelas’ trial for killing Slafman, a pizza shop employee named Jose Rivera said he could not identify any of the shooters. But a decade later, Rivera said Maisonet was the shooter.

Similarly, at the Pirela brothers’ trial for killing Figueroa, witness Heriberto Colón said the brothers had been the only ones to stab Figueroa. But at Maisonet’s trial, Colón said Maisonet had done so, too.

Called by King at a subsequent resentencing for Simon Pirela, in 2000, Colón reverted to his original testimony that Maisonet never stabbed Figueroa. (Both Colón and Maisonet admitted to being present, but said they were terrified of the violent Pirela brothers and believed they were the next to be killed. Maisonet said that fear is what drove him to flee to Puerto Rico.)

“King never took any steps to remedy Heriberto Colón’s perjured testimony against Mr. Maisonet," Maisonet’s lawyer, Daniel Silverman, wrote in a petition. "The Commonwealth ignored a second opportunity to correct Colón’s lies, lies which undoubtedly resulted in Mr. Maisonet’s first degree murder conviction and death sentence.”

The District Attorney’s Office, in agreeing to vacate the conviction, said Maisonet’s lawyer was ineffective for failing to track down those court transcripts.

If that information was available on the public record, the defense lawyer should have uncovered it, agreed Bennett Gershman, a Pace University law professor and expert on prosecutorial misconduct.

Even so, he said, “You could argue the prosecutor should have disclosed it. … Prosecutors often don’t do their duty, and the consequences are sometimes very serious. There are a lot of cases involving innocent people who’ve been convicted because the prosecutor didn’t disclose information. This is a serious problem — one judge called it an epidemic.”

He said such a case should have implications for King’s other convictions being challenged on appeal.

A spokesperson for the District Attorney’s Office declined to comment on any review beyond the scope of this case, and said the office had not yet decided whether it would retry Maisonet for the murder.

Maisonet’s lawyers declined to comment on their outlook for a retrial, or make available Maisonet’s family, including his mother, who still lives in Puerto Rico and is struggling to rebuild after Hurricane Maria.

“For over 28 years, Mr. Maisonet has been forced to spend 23 hours a day in a tiny cell with no human contact," Silverman said. "... We are gratified that Judge O’Keefe and the District Attorney’s Office have carefully reviewed this case and responsibly identified the injustices that were committed.”