Shooting by Philadelphia officer justified, D.A.'s Office rules

The District Attorney's Office has ruled that a Philadelphia police officer was justified when he fired 11 shots at an armed suspect who fled into a house full of adults and children celebrating New Year's 2008.

Five of Officer George Marko's bullets penetrated the storm door of the house, sending about two dozen people scattering for cover. Three partygoers in the East Germantown house were hit, including a 9-year-old boy who was grazed in the back.

Two men were wounded seriously. One, 33-year-old Abebe Isaac, died a week later from infection and complications. The accused gunman, Dontate Mitchell, was hit in the elbow.

Marko said Mitchell pointed the gun at him, prompting him to fire. Prosecutors agreed with Marko's description of events.

"Given the totality of circumstances . . . Marko's actions were justified," District Attorney Seth Williams wrote to Police Commissioner Charles H. Ramsey.

Prosecutors took 2 1/2 years to render a decision, a period that spanned two administrations.

Williams has strongly criticized his predecessor, Lynne M. Abraham, for allowing police shootings to languish for years. Williams vowed to make swift decisions.

Marko was cleared of criminal charges on June 1, about six months after Williams took office. Prosecutors released a two-line statement this week to The Inquirer, confirming the decision.

"A careful review of the evidence reflected that Officer Marko lawfully responded to dangerous gunshots fired by Dontate Mitchell," the statement said.

Marko remains on desk duty until the completion of an internal investigation to determine whether he violated any police protocols.

The shooting sparked a series of lawsuits from Isaac's family and 27 people who were attending the party that night in the 5600 block of Boyer Street. The civil suits are all pending. Civil allegations require a lower threshold of proof than criminal charges.

Alan Yatvin, who represents Isaac's family along with lead attorney Howard Popper, said the process of investigating a police shooting was "open to manipulation."

Although officers give a preliminary statement to a supervisor at the scene, detectives are not allowed to interview them until they are cleared of criminal charges.

In this case, that meant detectives did not speak to Marko for 21/2 years, a span that Yatvin said was troubling.

"Two and a half years after the incident, after everyone has given their statements, the officer can come and tell his story with the benefit of all that hindsight," he said. "The bottom line, I think, is an investigation that takes this long isn't credible."

Jeffrey Allen Sigman, who represents Michael Johnson, the other person hit by gunfire that night, said keeping Marko on the department payroll "strengthens my case against the city for the officer recklessly shooting through a closed door."

The question of whether Mitchell pointed the gun at Marko would have been central to the district attorney's decision. Mitchell has maintained his innocence, and no one other than Marko saw the suspect raise the weapon.

On June 28, after he was cleared of criminal charges, Marko gave a statement to Internal Affairs with his lawyer present as part of the administrative investigation into his conduct.

Marko and his partner, Officer Joseph Kelly, were on routine patrol at the stroke of midnight when they saw a man on the corner of Boyer and Woodlawn Streets firing into the air, according to documents obtained by The Inquirer. (Celebratory gunfire to mark the New Year has been a long and dangerous tradition in some Philadelphia neighborhoods.)

Both 14th District officers said they got out of their marked car and ordered the man to drop the gun. Marko said Mitchell ran to the Boyer Street house, opened the storm door and rested it against his back.

"At that point, he reached back with his right hand with the gun and pointed it toward me," Marko said. "I couldn't see his left hand, but it was possibly opening the entry door."

Marko, running at full speed and passing between two parked cars, fired from the curb line. Mitchell opened the entry door and stepped into the house, the officer said.

Marko said he was unaware there was anyone else in the house, and he stopped firing once Mitchell disappeared inside. Mitchell quickly changed clothes and slipped out the back without being noticed.

As the officers approached the home, Isaac stumbled onto the porch while bleeding from the face and fell to his knees at the railing.

"Seeing that sight, I was upset that his injury may have been caused when I fired my gun at the male who had pointed the gun at me," Marko told Internal Affairs.

In an interview with Northwest Detectives on the night of the shooting, Kelly was asked whether the suspect had pointed the gun at him. Kelly answered, "No."

Kelly was not asked whether the suspect had pointed the gun at Marko, and he did not elaborate on the circumstances.

Two weeks later, Kelly was interviewed at Internal Affairs with his lawyer present. In that interview, he said he "lost sight of the defendant and Police Officer Marko began firing toward where the defendant had gone."

Kelly said he lost sight of Mitchell for only a few seconds, but Marko fired all 11 shots during that time. He said his view was blocked by an enclosed porch next door.

Kelly was asked why he didn't mention losing sight of the gunman during his first interview with Northwest Detectives.

"Because I believed that the issue that they were interviewing me about was why the male was arrested and not why Police Officer Marko discharged his weapon," he said.

Yatvin said a shooting that endangered so many bystanders could not be justified.

"It seems criminal, but the D.A. has decided otherwise," he said.

Mitchell was arrested at his home later on New Year's Day. All the civil plaintiffs are suing him as well for his role in sparking the shooting.

While the criminal investigation was being conducted, Marko could not discuss the case in court. That forced prosecutors to dismiss the charges against Mitchell.

Prosecutors now are considering whether to refile the charges, said Tasha Jamerson, a spokeswoman for the D.A. Mitchell's attorney, Daine Grey, said he doubted the case would be resurrected.

"Dontate [Mitchell] didn't do anything. I expect this to go away quietly," he said. "That's not the type of publicity the Philadelphia police needs right now."