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Mark Whitaker

Other Philadelphia Exonerations
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At about 7 pm. on January 26, 1999, three men walked into the Happy Days bar, a strip club in the Fishtown section of Philadelphia, Pennsylvania and ordered drinks. Witnesses would later say they appeared to be casing the club.

At the same time, Donna Mestichelli was ending her shift as a barmaid. She was totaling up the day’s receipts with 35-year-old Mario Lim Jr., who was taking over bartending duties.

After the bartenders put the cash in a bag on a shelf under the bar, one of the three men left briefly and then came back in through a different door holding a handgun. He ordered two customers to lie on the floor. Meanwhile, the two men who were sitting at the bar drew guns. One walked behind the bar and smashed Lim in the face with the butt of his gun. He then aimed the gun at Lim’s temple and fatally shot him. The other man pointed his gun at Mestichelli and fired twice. Her brother, 42-year-old Thomas Zingani, who was a customer in the bar, stepped into the line of fire and was wounded in his right side, leaving him paralyzed.

The men grabbed the bag, which contained about $300, and fled.

On June 22, 2000, 28-year-old Abdul Stewart and 48-year-old Stephen Shakuur were charged with the crimes after they were identified in photographic lineups by Mestichelli, Zingani, and Mestichelli’s boyfriend, Thomas Cenevivia, who was in the bar at the time of the crime. The witnesses said Stewart was the man who shot Lim and that Shakuur wounded Zingani.

Stewart confessed to the crime and said the third man was named “Mark.” In April 2002, Cenevivia, who by then was in custody in Florida for an unrelated offense, was brought to Philadelphia to testify against Shakuur. Detectives put together a photographic lineup consisting of men named Mark who lived near the Happy Days bar. Cenevivia picked the photograph of Mark Whitaker as the third man involved in the crime. Whitaker, who was then 32 years old, was arrested on April 10, 2002 and charged with second-degree murder, aggravated assault, conspiracy, and possession of an instrument of a crime.

On June 27, 2002, Shakuur pled guilty to aggravated assault and was sentenced to 10 to 20 years in prison.

In January 2003, Whitaker’s attorney, Kenneth Mirsky, filed a motion seeking to bar the prosecution from introducing Stewart’s confession because it would violate Whitaker’s Sixth Amendment right to cross-examination since Stewart was not going to testify.

The judge denied the motion, but ordered Whitaker’s name to be redacted and replaced with “the other guy.”

In October 2003, Stewart and Whitaker went to trial together in the Philadelphia County Court of Common Pleas.

Cenevivia testified and identified Whitaker as the man who left the bar and came back in through a different door with a gun drawn. He admitted that he had given four prior statements to police and in none did he say there were three robbers.

Cenevivia also testified that while in the lockup, he heard Shakuur and Whitaker having a conversation during which Whitaker allegedly told Shakuur not to identify him as being involved in the crime.

Cenevivia testified that Whitaker repeatedly told Shakuur, “You got to tell them I didn't know anything about this.” Cenevivia said that Shakuur said, “I didn't want to bring you in on this,” and that Whitaker replied, “You got to say I didn't know anything about it.”

Mestichelli testified and identified Stewart as the man who shot Lim. Although she had failed to identify Whitaker in a photograph array prior to trial, she now said she recognized him as the third robber. She admitted that she was not paying any attention to the third male after the shots were fired. Zingani testified about how he got shot. He was unable to identify either Stewart or Whitaker.

Detective John McDermott read Stewart’s redacted confession to the jury. The prosecution also played a videotape of the Stewart confession, which also was edited so that Whitaker’s name was not heard.

The redacted statement said:

“I ran out the bar on the Girard Avenue door and me and (Shakuur) walked over to the car. It was parked on Front Street. The other guy was in the car. When I came out the bar, I saw him leaving the bar from the Front Street door. The other guy got in the car and drove…We went to my aunt's house…When we got there we split the money up. Wasn't that much money; only between $200 and $300. The three of us split the money.

During closing argument, the prosecutor used Stewart’s confession to argue that Whitaker shared in the proceeds of the robbery. He told the jury, “Shakuur, Stewart, Whitaker, stayed for the very end, all ran together and split it up three ways. It was part of the plan.”

“Mark Whitaker participated in this and stayed from beginning to end and left with these men and shared in the proceeds and he wants to reap the rewards but he doesn't want to be held accountable and responsible for the bad that happened inside the bar that night,” the prosecutor declared.

On October 29, 2003, the jury convicted Stewart and Whitaker of first-degree murder, aggravated assault, armed robbery, conspiracy, and possession of an instrument of a crime. Both were sentenced to life in prison without parole.

Whitaker’s appeals lawyer, Norris Gelman, argued that the prosecution had violated Whitaker’s right to a fair trial. “By informing the jury that (Whitaker) was ‘the other guy,’” Gelman argued, “the redaction was overridden and the jury knew that Stewart was referring to (Whitaker) at all times.”

On June 30, 2005, the Superior Court of Pennsylvania denied the appeal.

In 2005, Whitaker, acting without a lawyer filed a petition under the Pennsylvania Post-Conviction Relief Act seeking a new trial. He argued that his trial lawyer had had provided an inadequate legal defense by failing to object to the prosecution’s closing argument. The petition was denied in March 2009 and the Superior Court upheld the denial.

In 2014, Whitaker, still acting without a lawyer, filed a federal petition for a writ of habeas corpus seeking to overturn his convictions. The petition again contended that his trial attorney had provided an inadequate legal defense by failing to object to the prosecution’s closing argument. The petition was denied in August 2015.

Whitaker, who had been appointed counsel, appealed. In January 2018, the Third Circuit U.S. Court of Appeals ruled that the prosecutor had violated Whitaker’s right to a fair trial when he “identified Whitaker as ‘the other guy’ in Stewart’s confession during closing argument.” The appeals court ordered a hearing to obtain testimony from Whitaker’s trial attorney, Kenneth Mirsky, about his apparent failure to object to the prosecutor’s argument.

During an evidentiary hearing, Mirsky said he could not remember making such an objection, admitted that no objection could be found in the trial record, and that he had no strategic reason for not making such an objection.

During cross-examination by the prosecution, Mirsky admitted that it might have been possible that he objected after the argument was over and outside the presence of the jury. On April 3, 2018, lawyers from the Philadelphia County District Attorney’s Office filed, for the first time, pages from the trial transcript that had previously been reported missing. Apparently, the court reporter, concerned about the missing pages, went back to her files once more and found a disc containing the missing pages. Included in these were several objections Mirsky made after the closing arguments were concluded, including an objection and a request for a mistrial because of the connection to Whitaker as “the other guy.”

As a result, an amended federal petition for a writ of habeas corpus was filed in May 2018. The petition claimed that the trial court had committed reversible error by denying the motion for a mistrial.

In June 2018, the prosecution agreed to an order vacating Whitaker’s convictions and grant him a new trial.

Whitaker, again represented by Mirsky, went to trial a second time in April 2019. The prosecution called Stewart, who told the jury Whitaker was not involved in the crime and that police gave him the name “Mark.”

On May 3, 2019, the jury acquitted Whitaker and he was released after more than 17 years in custody.

– Maurice Possley

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Posting Date: 6/12/2019
State:Pennsylvania
County:Philadelphia
Most Serious Crime:Murder
Additional Convictions:Robbery, Assault, Illegal Use of a Weapon, Conspiracy
Reported Crime Date:1999
Convicted:2003
Exonerated:2019
Sentence:Life without parole
Race:Black
Sex:Male
Age at the date of reported crime:29
Contributing Factors:Mistaken Witness ID, Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No