Andrew Swainson and his fiancée, Maxine Loban, reunite upon Andrew’s release.
On June 12, 2020, Andrew Swainson walked out of prison in Dallas, Pennsylvania, as a free man after more than 32 years of proclaiming his innocence. He was reunited with his fiancée Maxine Loban and members of his family and legal team, including Nate Andrisani, a partner at Morgan, Lewis & Bockius, LLP, and Nilam Sanghvi, Legal Director at the Pennsylvania Innocence Project. Everyone wore masks due to the COVID-19 pandemic, but the masks could not hide the joy on their faces. Swainson’s and his legal team’s smiling eyes shone because the day they collectively fought so hard for had finally arrived. The group popped champagne in a parking lot and toasted to the freedom finally awarded to Swainson. Members of Swainson’s family and extended legal team excitedly greeted Mr. Swainson over videoconference, celebrating through technology that did not exist in 1988, when he was arrested for a murder he did not commit.
Andrew Swainson (center) celebrates with his fiancée, family, members of his legal team, and others upon his release.
Andrew Swainson was Wrongfully Convicted for the Shooting of Stanley Opher
On January 17, 1988, Stanley Opher was shot around 3:40 a.m. on the dimly lit front porch of a known drug house in Philadelphia. He died the next day. The only eyewitness to the shooting was Paul Presley—a man who claimed he was at the house to purchase more drugs after a long night of admittedly getting high on cocaine and drinking alcohol. Philadelphia’s 18th Police District was just over a block away from the shooting, and officers responded immediately. Police arrested Presley after seeing him running from the front of the house, covered in blood, and then hiding in a nearby neighbor’s bushes. They arrested two other men who were seen running out the front door of the drug house as the police arrived. Presley and the other two men were charged with Opher’s shooting.
Swainson and Opher were friends. Swainson gave a voluntary statement to Philadelphia Homicide Detective Manuel Santiago describing his relationship with Opher and his whereabouts on the day of the shooting. Several weeks later, after prosecutors had inexplicably dropped all the charges against Presley and the other two men, Santiago interviewed Presley about his knowledge of the shooting. Presley indicated that two gunmen had attacked Opher. Presley said that he had never seen either gunman before encountering them at about 3:40 a.m. on the dimly lit porch of the drug house. Santiago never asked Presley for any physical description of either gunman. The only description that Presley provided during the interview was that the shooter was a “brown skin dude.” Based on this information alone, the detective asked whether Presley would be able to recognize the shooter and showed him a series of photographs from which Presley allegedly identified Swainson. Philadelphia police never showed Presley any other photographs in an effort to identify the second alleged gunman.
Based on Presley’s identification, Santiago obtained a warrant and had Swainson arrested at his parents’ home in New York in March 1988, after Swainson returned from a planned trip to Jamaica. Presley’s story then changed. At the preliminary hearing and in an affidavit executed before trial, Presley testified that Swainson was not the shooter and that he could not identify Swainson as being at the crime scene because his skin tone was different than that of the person he saw the night of the murder. At trial, however, Presley changed his story again, and identified Swainson as the shooter. Presley, who had been arrested numerous times, including for armed robbery, and who was wanted in New Jersey as a result of probation/parole violations, testified unequivocally that he did not have any leniency agreement in place with the prosecutors in exchange for his testimony.
During the trial, the prosecution also presented disingenuous evidence of flight. For example, the detectives referred to Swainson as a “fugitive” in their testimony, and made references to his purported flight from the country to avoid prosecution. The trial judge instructed the jury—at the prosecution’s request—that evidence of flight could be used to show consciousness of guilt. After two days of deliberation, the jury convicted Swainson of first-degree murder and related charges on March 21, 1989. Swainson was sentenced to life in prison, which in Pennsylvania equates to being sentenced to die in prison.
The Pennsylvania Innocence Project Partnered with Attorneys in Private Practice to Fight for Swainson’s Freedom
Swainson maintained his innocence since he was arrested. Following his conviction, Swainson filed several appeals and petitions for post-conviction relief in Pennsylvania state court, as well as petitions for habeas corpus in federal court. The Pennsylvania Innocence Project began working on the investigation in Swainson’s case in 2009. Through a referral from the Pennsylvania Innocence Project, a team of attorneys from Morgan Lewis became involved in 2013. Morgan Lewis partnered with the Pennsylvania Innocence Project and Swainson’s existing attorney, Craig Cooley (who began working on this case while at the Innocence Project), to represent Swainson in his continued fight for justice.
The Legal Team Discovered Mr. Presley’s Undisclosed Alias in 2014
In October 2008, Swainson’s investigators located and contacted Paul Presley, who recanted his trial testimony. Presley admitted that the open felony drug charges against him were dropped in exchange for his testimony against Swainson. However, the investigators were not able to identify or locate any evidence of the open drug case in Philadelphia against Presley at the time he testified in 1989.
In 2014, the Morgan Lewis team discovered a computer docket sheet in a case captioned Commonwealth v. Kareem Miller, CP-51-CR-1024751-1988. They also discovered that the court computer was now listing “Kareem Miller” as an alias for Paul Presley. Upon searching for available court records of the prosecution of Commonwealth v. Kareem Miller, counsel realized that they may have identified the case Presley referred to in 2008, when he disavowed his trial testimony. Further investigation by Morgan Lewis revealed that Presley had been arrested by Philadelphia police in the same neighborhood as the shooting and charged with felony drug dealing charges in the summer of 1988—on the very same date that a Philadelphia court had ordered him to be extradited to New Jersey to face his open charges. Philadelphia police arrested and charged Presley under the fictitious name “Kareem Miller,” and Presley remained incarcerated in a Philadelphia prison under that name for more than seven months leading up to Swainson’s trial. During Presley’s secret incarceration, the prosecution secured his assistance and cooperation as a witness at Swainson’s trial. Presley testified falsely at trial as the prosecutor’s star witness, and only eyewitness to the shooting. Conveniently, Philadelphia prosecutors quickly dropped all the charges against Presley in the case in which he was charged as “Kareem Miller” after he testified falsely at Swainson’s trial.
After discovering Presley’s mysterious arrest and prosecution as “Kareem Miller,” Swainson’s legal team moved quickly to include it in his August 2014 petition for post-conviction relief, which sought, among other things, access to the district attorney’s files for Commonwealth v. Andrew Swainson and Commonwealth v. Kareem Miller, as well as the Philadelphia Police Department’s homicide investigation file regarding Opher’s murder. Throughout the years of briefing on Swainson’s petition—and even in a 2017 hearing—Philadelphia prosecutors continued to argue that there was no proof that Presley was the person secretly arrested, charged, incarcerated, and discharged under the fictitious name Kareem Miller. Presley died before Swainson’s attorneys discovered the case Commonwealth v. Kareem Miller, and could not confirm that he was indeed arrested, charged, and imprisoned under a fake name until he testified falsely at trial to convict Swainson.
The Pennsylvania Innocence Project Obtained the Opher Homicide File
While the petition was pending, the Pennsylvania Innocence Project gained access to a portion of the Opher homicide file through civil discovery in Anthony Wright’s civil suit against the city of Philadelphia. Wright had also been wrongly convicted of murder and incarcerated for 25 years as a result of an investigation involving Detective Santiago. The partial Opher homicide file contained additional undisclosed, exculpatory evidence critical to Swainson’s case, including:
- The identity of the assailant—“Kevin Pearson”—who is identified in the police paperwork as the man who fired the shotgun that killed Opher and injured the Commonwealth’s star eyewitness at the scene of the murder.
- The existence of alternative suspects—most importantly Allen Proctor—who was arrested by police for murder the day after police interviewed a witness who identified Proctor as an armed criminal who had been robbing drug houses in the same fashion as what led to the shooting of Opher. Proctor was later killed during one of his robbery attempts when the intended victim shot him.
Swainson amended his petition in 2017 to include this information, and the Pennsylvania Innocence Project moved from consulting on his case to officially representing him along with the rest of his legal team.
Philadelphia’s Conviction Integrity Unit Agreed to Review the Case
That same year, civil rights attorney and former public defender Larry Krasner was elected Philadelphia district attorney. Krasner expanded the DA’s Office’s Conviction Integrity Unit (CIU) to investigate potential wrongful convictions. Morgan Lewis and the Pennsylvania Innocence Project submitted Swainson’s case to the CIU for review on February 23, 2018, and the CIU agreed to conduct its own investigation. Working with the CIU, Swainson’s legal team finally obtained access to the complete Opher homicide file as well as to the prosecutor’s trial file.
The prosecutor’s trial file confirmed what Swainson’s legal team had long argued and suspected—that the man arrested for drug dealing in the same neighborhood as the murder and incarcerated under the name Kareem Miller was Paul Presley. Sadly, Swainson and his legal team also learned that notwithstanding numerous prior denials by prosecutors handling Swainson’s PCRA case, the Commonwealth had information readily available in both the homicide file and the prosecutor’s trial file that confirmed that Presley was indeed the man charged and jailed under this fictitious name. Indeed, the prosecutor’s trial file contained evidence that Detective Santiago had arranged for Presley (under the name Kareem Miller) to be transported from prison to the DA’s office for meetings with him and prosecutors in preparation for Presley’s false testimony at Swainson’s trial.
The complete homicide file also contained documents showing that Philadelphia police were aware that Swainson left for Jamaica and was scheduled to return before they ever obtained an arrest warrant. It also showed that Swainson contacted Santiago when he returned from Jamaica, but was never advised of the active warrant out for his arrest. Despite this evidence, the police treated Swainson as a fugitive, which the prosecution capitalized on at trial to argue falsely that Swainson attempted to avoid prosecution and by doing so demonstrated consciousness of his guilt.
With these facts in hand, Swainson’s legal team filed another amendment to his petition in November 2019. After a thorough investigation and review by ADAs Patricia Cummings and Andrew Wellbrock of the CIU, in February 2020, the Commonwealth stipulated to facts established by Swainson’s legal team and conceded that he was entitled to relief based on the clear violations of his right to due process under both the Pennsylvania and United States Constitutions. Both parties requested that the court vacate Swainson’s sentence and order a new trial. Now all that was needed was the court’s agreement. The parties informed the court that no witnesses would be presented at any hearing; rather, in their view, the matter could be resolved without an evidentiary hearing. The court scheduled a hearing for April 24, 2020.
COVID-19 Cannot Stop Justice
With the scheduling of the hearing, all of the individuals who had been working to secure Swainson’s freedom hoped that justice was on the horizon. Then the COVID-19 pandemic shut down the country. The First Judicial District in Philadelphia County declared a judicial emergency, and then extended it, closing the courts until May 29, 2020. The parties could not risk Swainson contracting COVID-19 in prison when even the prosecution conceded that the evidence proved he was wrongfully incarcerated, so the parties jointly petitioned the PCRA court to ensure that Swainson’s case could be heard via video, despite court closure. After several emergency motions requesting to use the advanced communication technology available to the parties, Swainson was given a virtual hearing date in June.
On June 12, 2020, amid a global pandemic and a nationwide outcry for racial equality, Swainson’s legal team, family, friends, and supporters logged in to Judge Shelly Robins New’s virtual courtroom. Swainson was also present by videoconference from prison. Both parties presented the exculpatory evidence found in the homicide file and trial file and asked the court to vacate the wrongful conviction. Swainson’s counsel, Nate Andrisani, focused on the fundamental unfairness of the trial, the numerous constitutional violations, and Swainson’s long-proclaimed assertions of innocence. ADA Andrew Wellbrock joined in the request for relief, apologized to Swainson, members of the victim’s family and society, and explained to the court how pressure to clear homicide cases combined with a lack of resources resulted in an incomplete investigation that ultimately led to Swainson’s wrongful conviction. Citing the new compelling evidence that undermined any confidence in the conviction obtained by prosecutors more than 31 years earlier, the Philadelphia District Attorney’s Office asked the court to grant Swainson a new trial. It then went one step further and informed the court that no evidence supported a good-faith prosecution, so it intended to drop all charges against Swainson.
As the virtual crowd looked on, Judge Robins New issued her ruling. The court granted Swainson a new trial based on the violation of his due process rights. While the virtual crowd was muted, the joy expressed by the group was palpable as they could be seen smiling, celebrating, and cheering on-screen. Although it was not the familiar or traditional way of having his day in court, Swainson’s hearing demonstrated that when all parties are committed to fighting for what is right, justice is possible, despite external challenges that threaten to interfere with freedom. Because Swainson’s attorneys, the Pennsylvania Innocence Project, and the DA’s CIU all shared the same goal of achieving justice, Swainson was able to finally regain his freedom.
About the Pennsylvania Innocence Project
The Pennsylvania Innocence Project works to exonerate those convicted of crimes they did not commit and to prevent innocent people from being convicted. Since its founding just over 10 years ago, The Pennsylvania Innocence Project has secured or helped to secure the exoneration of 19 men and women and has secured the freedom of four others who continue to press their legal claims for complete exoneration. To learn more about and support The Pennsylvania Innocence Project, visit painnocence.org.
About the Authors
Nathan J. Andrisani is a partner with Morgan Lewis & Bockius LLP in Philadelphia, and Jacqueline Gorbey is a former associate with Morgan Lewis who now is a litigation and investigations attorney with Endo Pharmaceuticals. Both were members of the legal team representing Andrew Swainson.