Many months ago we were approached by Kamil McFadden about a pending PCRA. He had filed it himself and then gotten some help from a Court appointed attorney. The claim has been sitting in limbo for years, notably since before the current Philadelphia District Attorney’s “open file” policy went into effect. As a reminder, the “open file” policy is a unique concession to many Pennsylvanians who are challenging their convictions. When such a person, commonly referred to as the Petitioner, has an attorney, that attorney will have a full opportunity to review the DA file and the police investigation file.
The “open file” policy is a sensible tactic for a District Attorney seeking to promote transparency and accountability. The DA’s office lacks the manpower to look into every case where misconduct is alleged. By having an “open file” policy, the DA can outsource the workload to Petitioners’ attorneys and still get the oversight needed to undo wrongful convictions. It doesn’t always work, but for post-conviction lawyers in Philadelphia, the open file policy gives us a tremendous leg up.
McFadden’s post conviction case, filed before the open file policy came into effect, was based on affidavits from jailhouse informants saying that they recently heard another convicted person confess to the killing of Asmar Davis. McFadden was convicted of killing Davis in 2004, but has always maintained his innocence. Testimony from jailhouse witnesses is viewed with great skepticism by the Court, so no one was terribly excited about McFadden’s chances of success. Even considering the weaker nature of this newly-discovered evidence, we decided to move forward with the case. Our hope was to find something more valuable when we conducted our file review.
And that’s exactly what happened. The three jailhouse witnesses said that the actual perpetrator who was bragging about Asmar Davis was an inmate with a unique name, which is being omitted here because everyone is innocent until proven guilty. When we reviewed the police investigation file, we found the same person with the same unique name was being investigated by the police in connection with the killing of Asmar Davis. What Kamil McFadden learned after spending years and years in prison, the Philadelphia Police knew all along. Information about any alternative suspect is required to be passed to the Defendant (Kamil McFadden) BEFORE his 2004 trial. Clearly, that did not happen in this case. Thanks in part to the current District Attorney, the information is finally coming out, and hopefully it will be enough to free an innocent man.
