"… a tenacious courtroom fighter with an instinct for the jugular and a keen eye for incongruity."

Philadelphia Magazine

Time and Patience Run Out as Court Frees 7 in a Gang-Killing Case

PHILADELPHIA, Aug. 4— The case had all the street violence and legal contortions of a "Law and Order" episode. Cold-blooded killings. Wily defense lawyers who get crucial charges dismissed. A no-nonsense judge who penalizes the prosecution for an apparent blunder.

On television, the determined assistant district attorneys would have pirouetted from humiliation to triumph in time for the 11 o'clock news. But this is Philadelphia.

And so last week seven men who had been accused of murder, drug dealing, kidnapping and other crimes in West Philadelphia in the 1990's were ordered released after having spent six or more years in city jail.

The reason was a judge's ruling that the prosecution failed to comply with a Pennsylvania law requiring trials to start within a year of an arrest.

The decision has embarrassed the district attorney's office and dismayed advocates for crime victims. But it has elicited cheers from defense lawyers, who called it just comeuppance for an overly zealous prosecution team.

"This is not about the opinion of the cops that my client may have done something wrong, and therefore it didn't matter whether they got it right," said Dennis J. Cogan, the lawyer for James Drayton, the lead defendant and, according to prosecutors, the ringleader of one of the city's most vicious gangs from that time. "Process does matter."

The case has also awakened dark memories of the city's drug wars of the 1990's, when gang lords battled for turf, the murder rate soared and the police seemed powerless to stop the violence.

"It was just an open-air drug store, night and day," said Doris Jackson, 62, a West Philadelphia resident. "To this day I wonder, 'Lord, how did I make it through?"'

In the Drayton case, prosecutors said they thought they were on firm legal ground in postponing the trial because they were trying to reinstate racketeering charges that had been dismissed in 1998 by a lower court judge. Using the racketeering law would have allowed broader rules of evidence that could have compensated for other weaknesses in the prosecution's case, legal experts said.

But in 2002, Judge Benjamin Lerner of the Philadelphia Court of Common Pleas ruled that the prosecution had taken too long on its appeals and ordered all charges against the seven defendants dismissed.

Last month, the Pennsylvania Supreme Court declined to review Judge Lerner's decision, opening the way for the seven defendants to be released. Five have left jail; the other two remain in custody on other charges, their lawyers said.

In his 2002 ruling, Judge Lerner accused the prosecutors of "bad faith" in repeatedly appealing the racketeering decision, suggesting that they knew those appeals were futile but continued them to keep the defendants behind bars.

"The Commonwealth had no right to continue to pursue a now frivolous appeal whose sole effect was to keep these defendants in custody without a trial," Judge Lerner wrote. "The decision to do so is an example of bad faith, not due diligence."

Legal experts called the judge's rebuke extraordinary, saying he had, in effect, accused the prosecutors of unethical conduct.

"He found that these prosecutors had misrepresented facts and advanced legal positions that they had earlier disavowed," said Edward Ohlbaum, a professor of law at Temple University and a former public defender. "It doesn't get more serious than that."

Judge Lerner, a Democrat, is a former chief public defender for Philadelphia. But defense lawyers said he had a reputation as being evenhanded.

The district attorney, Lynne Abraham, also a Democrat, did not comment on the ruling, and her office declined to make lawyers available to explain their handling of the case.

But a spokeswoman for the office said the racketeering charges were essential because they provided the backbone for a complicated case involving diverse charges and numerous defendants.

"Without those charges, we did not feel the evidence was there to make a strong case against these seven drug dealers," said the spokeswoman, Cathie Abookire. "This was an obvious, organized gang. It was an enterprise. To stitch the whole case together, we needed the racketeering charges."

The police contend that Mr. Drayton, 30, was the leader of a drug gang that wiped out rivals in the Mantua section of West Philadelphia in the early 1990's and even plotted to execute a prosecutor.

In the first of three cases involving him, the police charged Mr. Drayton in 1995 with killing a rival dealer. But prosecutors withdrew the charges after a witness recanted his identification of Mr. Drayton. In 1996, while Mr. Drayton was in jail in the first case, the police filed new charges accusing him of a 1993 killing. A jury deliberated for less than hour before acquitting him on that charge.

Before that second case was finished, prosecutors brought more sweeping charges against Mr. Drayton and other members of what they called his "empire." They asserted that the gang defended a lucrative cocaine business through intimidation, kidnapping and assassination -- including the 1995 execution of a rival drug dealer and three friends while they played Nintendo in a Pallas Street row house.

This third case led to the protracted battle that ended last week when Mr. Drayton, who had been in jail for nearly nine years, was released.

Mr. Cogan called the repeated prosecutions a vendetta against his client because he had refused to testify about drug dealing in the Mantua area. He said Mr. Drayton and several of his fellow defendants have left town, fearing that the police will arrest them on new charges.

Seated in his sprawling 29th-floor office in central Philadelphia, Mr. Cogan asserted that Mr. Drayton had run a promising furniture business that was ruined by the prosecutions.

"He knows that even when you win, you can lose," Mr. Cogan said.

On the block where the four men were killed in the 1995 shootings that the police say Mr. Drayton ordered, a mural memorializes the victims with a giant heart. An acquaintance of the victims, Raymar Fisher, 28, shook his head in resignation when told that the men accused of the killings had been ordered released.

"No witness," he said. "That's how it is. You stay on the street long enough, and you die. And nobody sees it."

… a tenacious courtroom fighter with an instinct for the jugular and a keen eye for incongruity.

—Philadelphia Magazine

Unique and talented, calm
yet powerful, Dennis is the lawyer who's always thinking outside the box.

—Felicia Sarner, attorney

There are some who are good at law, others who are good at trial.
Dennis is simply the best that I've ever seen in my 35 years in court.

—Tom Bello, attorney