During the late afternoon of April 8, 2001, two men wearing bandanas over their faces and armed with a semi-automatic assault rifle and a sawed-off shotgun, entered the Dauphin County, Pennsylvania, home of Joshua Kone, who was sitting in the living room with a friend, Antwoyn Neal.
The robbers ordered Kone to give them money from a safe. Kone denied having any cash and was forced to the basement where the man with the assault rifle struck Kone in the face. When Kone raised his arms in self-defense, he knocked the bandana off the man’s face.
The robber struck him again and the two men began to search the basement. Kone ran upstairs and got his gun from the living room to confront the robbers, but both fled out a rear door. They left behind the bandana, a hammer, their guns, and a glove.
Kone identified 21-year-old Patrick Brown, whom he had met on three or four previous occasions, as one of the two gunmen. The other gunman was not identified.
Brown was arrested and charged with burglary, criminal conspiracy, illegal possession of a firearm and robbery.
At trial in 2001, Brown was convicted based on the testimony of Kone. A test on the bandana detected DNA that was not Brown’s, but from an unknown male. The DNA of three different males—none of them Brown—was found in the glove.
On November 14, 2002, Brown was sentenced to 22 to 70 years in prison.
In 2006, while in prison, Brown got into an altercation with two correctional officers and Brown was charged with two counts of aggravated assault. During the preliminary hearing, the officers said that Brown was about to be maced and in flailing his open palms he accidentally struck one of the officers.
In August 2006, Dauphin County deputy district attorney Francis Chardo persuaded Brown to plead guilty to the incident inside the prison and told him that because of his prior conviction, he would receive a significant additional sentence otherwise.
Brown pled guilty on August 16, 2006 to aggravated assault and received a sentence of 36 to 120 months to run concurrently with the robbery conviction.
But Brown did not know that just several weeks earlier, Chardo had received a DNA report that linked the DNA on the bandana to a convicted felon who was in prison for other crimes. Chardo would later say he sent a letter to Brown about that report, but could not provide any evidence that he did.
Three years later, in the late summer of 2009—a fellow prison inmate told Brown that he heard two other inmates talking about the robbery of Kone and that one said that he committed the crime and that someone else had been convicted for it.
Brown’s attorney, Teri Himebaugh, obtained an affidavit from the inmate who heard the conversation and discovered the name of the inmate who had said he committed the crime. She then filed a post-conviction petition on Brown’s behalf and also a motion to compare the DNA of the newly identified suspect to the DNA found on the bandana.
Himebaugh discovered that Chardo had been notified on three years earlier, on June 8, 2006 that DNA on the bandana was that of the newly identified suspect, but Brown was never notified.
On June 17, 2010, Brown was granted a new trial based on a joint stipulation of the facts and the charges were dismissed. Brown remained in custody on the conviction for the prison incident.
In January 2011, Brown filed a federal civil rights lawsuit against Chardo, alleging that he induced Brown to plead guilty to the prison assault charges because he knew that the DNA tests had exonerated him. The lawsuit charges that Chardo did nothing to investigate the suspect whose DNA was on the bandana. The lawsuit was dismissed in 2013 on the ground of prosecutorial immunity.
– Maurice Possley