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In a ruling that one expert said “opens a gigantic hole” in the law for prosecutors seeking to boost the credibility of turncoat witnesses, the Pennsylvania Supreme Court has affirmed, 4-3, the conviction and death sentence of a man involved in the 1998 killing of a Philadelphia lawyer and his paralegal. Commonwealth v. Miller, No. 292 CAP. Two dissenting justices argued that the prosecution had improperly vouched for the turncoat, in violation of established precedent, while a third asserted that defense counsel failed to put his client’s mental state properly into question during the trial’s penalty phase. Although he was not the shooter, a Philadelphia jury three years ago found Kenneth Miller to be guilty of two counts of first-degree murder in the deaths of attorney Charles Love and paralegal Brian Barry. According to the court, Love had won $15,000 in a civil case for Miller’s uncle, but could not disburse the funds because the uncle was in arrears on court-ordered support obligations. The uncle, together with Miller and two others, agreed to force Love to write a $10,000 check at gunpoint and then kill him. Gunman Herbert Blakeney entered into a plea agreement and testified against Miller at his trial. Leading Blakeney through his testimony, no less than four times the prosecution framed questions around the notion that the gunman was offering “truthful” testimony in exchange for being spared the death penalty. In its 1983 case Commonwealth v. Tann, Pennsylvania’s highest court had reversed a murder conviction where the prosecution had elicited testimony from two lawyers that their clients had agreed to testify truthfully as part of their plea bargains. At that time the court said that the tactic of emphasizing that a witness is giving up his Fifth Amendment rights and is taking the stand to tell the truth “tends to spotlight the accused if he fails to do the same thing and clearly invites an improper prejudicial inference from the jury.” Reaching the issue again in a 1990 case, Commonwealth v. Bricker, the high court reversed another conviction where prosecutors let jurors take into deliberations documents stating that testifying co-conspirators agreed to “provide complete and truthful information.” But in Miller’s case the majority drew the conclusion that the prosecutor’s use of the word “truthful” in direct examination of Blakeney was “merely an articulation of the parameters of his plea agreement.” Dissenting, Justice Russell M. Nigro said, “In my mind, this line of questioning went far beyond merely disclosing the existence and parameters of the plea agreement and instead vouched for Blakeney’s credibility and in doing so, impermissibly bestowed upon Blakeney the governmental halo of ‘being on the right side.’” Chief Justice Stephen A. Zappala agreed. But Justice Thomas G. Saylor took a different tack, questioning why, given Miller’s history of mental illness, his counsel failed to call a psychiatrist as an expert witness. Miller’s court-appointed appellate counsel, Joseph J. Marinaro, said he was surprised that his client had not come away with at least a new hearing on the death penalty. Calls to the Philadelphia district attorney’s office seeking comment were not returned before deadline. Addressing the ruling’s potential impact Temple University criminal law professor Eddie Ohlbaum likened it to “a gigantic hole through which a prosecutor may enthusiastically crawl.” He added that if he were a district attorney, he would encourage his prosecutors to take advantage of the decision. University of Pittsburgh law professor Welsh S. White echoed Ohlbaum and said the reasoning behind the court’s distinction was “very thin.”

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