Advocating on the Long Road to Justice

Tom Gallagher, Hannah McPhelin and John Miller, a free man.
Tom Gallagher, Hannah McPhelin and John Miller, a free man.

On July 31, 2019 Villanova Law alum Thomas Gallagher ’89, Partner and Chairman, Pepper Hamilton LLP, boarded a bus bound for Pennsylvania State Correctional Institution (SCI) Mahanoy. The 105-mile trip from Center City Philadelphia to Frackville, Pennsylvania was familiar. It was one he had taken several times over the past eight years, but this time was different. Instead of visiting inmate John Miller and discussing the frustrating details of his pro bono client’s case, today Gallagher was joined by Miller’s family –ready to welcome home a free man.

 

Life in Prison


On October 8, 1996 Anthony Mullen was shot and killed in an attempted robbery in the parking lot where he worked as an attendant near Philadelphia’s 30th Street Station. “It was a completely cold case. No eyewitness, no evidence at the crime scene, no forensics,” said Gallagher. Months passed without any leads.

In February 1997, Philadelphia police arrested David Williams on an unrelated burglary charge. In exchange for leniency, Williams told detectives that John Miller, his lifelong neighbor from their Southwest Philadelphia block, had confessed to him that he had killed Anthony Mullen in the 1996 murder. Police arrested Miller for the crime in June 1997. He was 19 years old.

Williams recanted his accusations at the preliminary hearing, saying he had a disagreement with Miller and lied to police about his murder confession. Despite this, the case moved to trial. A year later, in September 1998, without a reliable confession, eyewitness testimony or any physical evidence, Miller was tried, convicted of second-degree murder and sentenced to life in prison without the possibility of parole.
 

“A Wing and a Prayer”


Fast forward to 2009. While Miller spent years in prison, the Pennsylvania Innocence Project was founded in Philadelphia by a group of visionary lawyers in partnership with students and faculty from Villanova and Temple law schools. The Pennsylvania Innocence Project works to provide pro bono investigative and legal assistance to prisoners convicted in Pennsylvania who are actually innocent and can be proven so by DNA testing or by other newly discovered evidence.

“The Pennsylvania Innocence Project was launched on a wing and a prayer,” said Doris DelTosto Brogan, Professor of Law and Harold Reuschlein Chair, a Member of the Pennsylvania Innocence Project Board of Directors. “It got off the ground with minimal staffing with the goal of freeing people who are wrongfully incarcerated, and also preventing wrongful incarcerations in the first place.”

“We receive thousands and thousands of letters from people in prison who want us to take on their case,” said Brogan. Each case goes through a rigorous review process that starts with student volunteers, mostly law students, and proceeds through four tiers of screening and analysis to determine in each case whether the individual is factually innocent and whether their innocence can be proven.

Each semester, Villanova Law externs work at the Pennsylvania Innocence Project to sort and review the cases. “It’s a wonderful training program and a structured externship for students who are interested in learning about the criminal justice system from a different angle,” said Brogan, who also supervises the Villanova Law externs.

“Pennsylvania Innocence Project externs experience firsthand the inner workings of the criminal appeals process, and form relationships with both likeminded students and incarcerated individuals seeking assistance from the Project,” said Villanova Law student extern, John (Trip) Lenahan ’20. “And it’s not all office work—this semester, we witnessed another man’s exoneration after almost two decades of wrongful imprisonment. There wasn’t a dry eye in the courtroom.”

The externs are trained by Pennsylvania Innocence Project staff, attending a weekly seminar on wrongful convictions. They do in-depth case reviews, gather additional information, draft memos and help present cases to a review panel of staff and volunteer attorneys who decide whether they should take the case on.  

“The Villanova Law students have been great,” said Nilam Sanghvi, Legal Director for the Pennsylvania Innocence Project. “Some continue to volunteer with us after they complete their externship. It’s nice to build that relationship and have them stay abreast of the work we are doing at the Pennsylvania Innocence Project even if they go on to work in other areas of law.”

“The externs run into a lot of roadblocks,” added Brogan. “These are the things they will come across as real lawyers. The case isn’t presented to them in a nice package like it is in a law school simulation course. They have to figure out how to get the answers and information they need. It forces them to dig deeper.”
 

No Clear Path to Relief


In 2011, Gallagher, who serves on the Pennsylvania Innocence Project’s Board of Directors, was looking to take on a pro bono client with the Project. John Miller had applied for help, and his case had recently passed the review process, but only by the slimmest of margins.

 

“I sat down with him and talked to him about his own confession to the murder. It was unbelievable. He said he felt guilty and couldn’t live with himself anymore. He knew Miller’s family; he knew his mother.”


At this point, Miller had been in prison for 14 years and had filed more than 10 appeals in state and federal court, as well as with the U.S. Supreme Court. All appeals and post-conviction petitions were denied, including a 2003 proceeding during which Miller presented a letter that Williams had written to Miller’s mother. In it, Williams confessed that Miller had nothing to do with the murder. During the hearing, Williams once again recanted his statement accusing Miller of the crime and admitted that he was actually the one who murdered Mullen. However, while being questioned, Williams purposely misidentified Mullen. The prosecution threatened Williams with the death penalty during cross-examination and the judge ultimately found him not to be credible, which ultimately led to yet another denial for Miller.

“I reviewed the case and I was furious,” said Gallagher. “I could not believe, then or now, that any prosecutor would take that weak evidence and put it before a jury. Williams recanted his statement not once, but twice. He then confessed that he committed the crime. The only thing more remarkable than that was that a jury convicted John Miller. Shocking to me!”

Gallagher assembled a team of pro bono attorneys from Pepper Hamilton and they got to work. “There was no clear path to relief at the time, but I couldn’t believe he was sitting in jail based on that evidence.” Gallagher, a father of six with a demanding position at Pepper Hamilton, oversaw the case for more than eight years. “I find the time to do pro bono work because, it’s an important part of our profession,” he said.
 

John Miller with his family.
John Miller with his family.

Brady Violations


Gallagher hired retired FBI agents to help his team look for new evidence. They questioned the original witnesses and found others who might be able to help, including some who admitted they were coerced and retracted their initial statements.

Gallagher also traveled to SCI Forest in Marienville, Pennsylvania, south of Erie, to interview Williams where he was incarcerated for another crime. “I wanted to look him in the eye,” said Gallagher. “I sat down with him and talked to him about his own confession to the murder. It was unbelievable. He said he felt guilty and couldn’t live with himself anymore. He knew Miller’s family; he knew his mother.”

Ultimately, the break they were looking for came when they found Jack Williams (unrelated to David Williams).  As it turned out, at the time when David Williams was arrested for burglary in 1997 and falsely implicated Miller in the murder of Anthony Mullen, he also lied to police about another murder confession, this one from Jack Williams—all to obtain favorable treatment in his own pending criminal cases. “Who in the world gets arrested and has not one, but two murder confessions in their pocket?” questioned Gallagher.

Miller and his defense team at the time were never told about the other murder confession. Withholding this information was a Brady violation, a term that comes from the 1963 U.S. Supreme Court case Brady v. Maryland, in which the Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant violates due process.

“We had no idea Jack Williams even existed,” exclaimed Gallagher. “They were constitutionally obligated to produce it, but they didn’t. His lawyer at trial could have impeached the witness. Knowing this information could have resulted in a different outcome.”
 

Released or Retried


Gallagher and his team presented the Brady violation argument in state court for years, without any progress. It was denied numerous times on the government’s argument that the information could have been found if the defense had exercised due diligence. “It was frustrating over the years to submit the argument with all this information and get denied on procedural defenses,” said Gallagher. “That strategy worked for the government all the way through, until it didn’t,” said Gallagher.

“Our Brady violation argument finally got a federal magistrate judge’s attention, and on June 12, 2019, we received a report and recommendation that ruled in favor of Miller. The judge was persuaded that this could have resulted differently.”

The Commonwealth then had 14 days to object, and they concluded within that time they were not going to object. The Conviction Integrity Unit at the Philadelphia District Attorney’s Office reviewed the case and looked at the homicide file, ultimately deciding not to appeal or retry the case. “There’s no way they could retry him because they could barely try him in the first place. There’s no evidence,” Gallagher said.

On July 1, a U.S. District Judge then adopted the recommendation and ordered that Miller be released or retried within 180 days. The motion then returned to the state courts and, on July 31, a Philadelphia Court of Common Pleas Judge dropped all charges and ordered his immediate release from prison.

That day, John Miller boarded the bus rented by Gallagher and returned home to Philadelphia with his family and the legal team who worked for eight years to help exonerate him. “It was phenomenal and so emotional,” said Gallagher. After spending 22 years in prison, more than half his life, for a crime he didn’t commit, his battle was over.
 

“Tom is a great example to students of how you can play the game fair and square, with honesty and integrity and still be at the top of the top,” said Brogan. “I love to be able to tell students that you can do this.”

 

Today Miller is doing well. “He’s having struggles that you would expect, like finding work and navigating day-to-day life—it’s so different,” said Sanghvi. “He’s a very steady person, so he’s taking it one step at a time.”

Miller is still involved with the Pennsylvania Innocence Project, taking advantage of reentry services and participating in a bi-monthly exoneree support group with a social worker that is facilitated by another exoneree. He was recently awarded the Hero of Justice Award at the Pennsylvania Innocence Project’s 10th Anniversary Celebration in Philadelphia.
 

“One of the Finest Lawyers You Will Find”


Gallagher was possibly the perfect attorney to be paired with John Miller’s case “Tom is a real joy to work with,” said Sanghvi. “He’s a total team player and has a real talent at identifying the right lawyers to bring onto the team who have different skillsets. Tom’s ability to do that was really critical. He took the load off the Project and our limited resources.”

A former prosecutor in the criminal division of the U.S. Attorney’s Office in the Eastern District of Pennsylvania, Gallagher now represents clients in white collar criminal matters, corporate investigations and complex civil litigation. He has led the investigation and prosecution of numerous complex, multi-defendant white collar criminal matters in a number of industries, including health care, insurance, financial services and defense. He represents entities facing government investigations particularly focused in the health care industry, as well as businesses and individuals facing investigation by federal and state law enforcement authorities, government regulatory agencies and congressional committees

“Tom is one of the finest lawyers you will find, there is no one better,” said Brogan. “You would not want to be on the opposite side of the table from him—he will win every time. He is an extraordinary litigator. He is smart, well prepared, strategic, works really hard and he is genuinely a good person. He is at the top of his firm and at the top of the game.”

Prior to joining a private law firm, Gallagher served 13 years of active duty in the U.S Navy where he spent six years as a trial lawyer and staff judge advocate and, before that, served as a line officer on a destroyer. He retired as a Captain in the U.S. Naval Reserve, Judge Advocate General’s Corps.

While at Villanova Law, Gallagher excelled in the classroom and was the Villanova Law Review editor-in-chief. As an alum, he taught trial advocacy for six years and was a founding member of Villanova Law’s chapter of the American Inn of Court. He is currently a member of Villanova Law’s Board of Consultors.

Since Miller’s release from prison, Gallagher has received more than 20 letters from inmates who are in similar situations. Gallagher is reviewing the letters and is in the process of taking on another case with the Pennsylvania Innocence Project. “The day of the exoneration he was asking what case he would be put on next,” said Sanghvi. “He’s ready to jump back in.”

“Tom is a great example to students of how you can play the game fair and square, with honesty and integrity and still be at the top of the top,” said Brogan. “I love to be able to tell students that you can do this.”

 

Pennsylvania Innocence Project


Founded in 2009

17 Pennsylvanians exonerated in 10 years

Another 4 have been freed (either on bail or on parole), but are still fighting to prove their innocence

Received over 6,000 letters from prisoners seeking help