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John In

Other Philadelphia County Exonerations
At 5 a.m. on March 7, 2007, three men entered the home of Vuthary Yun in Philadelphia, Pennsylvania. Yun was up early doing the dishes. His four children, Dina Khem, Christina Khem, Angela Khem, and Keith Khem, were also home.

Two of the men went upstairs to a bedroom occupied by Christina Khem, held her at gunpoint, and asked her about money and jewelry. The third man took Yun from the kitchen, which was on the main floor, to the basement and tied him up. Dina Khem had been sleeping in her bedroom in the basement. She heard the commotion and called 911.

The police arrived within a few minutes. They knocked, received no answer and entered through the front door, which was slightly ajar. Keith Khem, who was 11 years old, was in one of the rooms on the main floor. An officer called out “Did anyone call the police?” From upstairs, a male voice responded, “Nobody called the police.” One of the officers thought that was odd; the voice sounded like that of a Black man, but the boy on the main floor was of Asian descent. An officer again asked about a call made to the police. Again, the voice from upstairs said no call had been made. The officer then said the call had come from the basement.

One of the men then released Christina Khem, and she ran downstairs and told the officers that the men had guns. An officer went upstairs and saw a man leaving through a bedroom window. The police chased the man through the backyard and alley and caught Jerry Jean about a block away, near a white Nissan Altima. Another man, Dyshon Marable, was found more than an hour later, hiding under clothes inside an upstairs closet.

As the police ran upstairs, the third man continued to hold Dina Khem and her father at gunpoint in the basement. When Dina tried to talk to her father in Cambodian, the gunman told her to shut up. She returned to her bedroom. While police continued their pursuit of Jean, the man in the basement left, and he ran past Christina Khem as he went out of the house through the front vestibule. A few minutes later, police arrested 23-year-old John In, who was not far from where police arrested Jean.

In and Jean were placed in the back of a police wagon, and officers brought Christina and Dina Khem over to the car. Christina identified Jean but did not make an identification of In. Dina, who was 19 years old, made an identification of In but not Jean.

Police collected several pieces of evidence. In the Altima, police found a gun, a box of rubber gloves, and three traffic tickets issued to Jean. They also found the fingertips of a latex glove in Jean’s hoodie. In canvassing the neighborhood and the house, police found three additional scraps of latex gloves. One was near the alley, where Jean had scaled a fence. The second was on the road about a block from the house. The third was in the home’s vestibule.

DNA testing was performed on these items. Jean was reported to be a contributor to the glove from the alley and possibly the scrap from the street. He was excluded as a contributor to the other items. In was excluded as a contributor to any of the items.

Before the testing, Marable had pled guilty to robbery and other charges on December 3, 2007, and his DNA was not tested. Jean pled guilty to robbery and related charges on March 11, 2008.

In went to trial in the Philadelphia Court of Common Pleas in September 2008, charged with robbery, burglary, conspiracy and several weapons offenses. He was represented by Richard Giuliani.

The state’s theory was that three men – In, Jean, and Marable – committed the home invasion, and that In was the man in the basement.

At trial, Dina Khem identified In as the man who held her and her father at gunpoint in the basement. She testified that she was able to look at In for at least two minutes and then make an identification when In and Jean were in the back of the police wagon. She testified that In’s nose was a distinguishing feature. “It’s real, real sharp,” she testified.

Speaking through an interpreter, Yun testified about the robbery. He said that he did not know how the men got into his house and that while he couldn’t identify the men, they were of varying heights and that the tallest man was the one who took him to the basement. In is 5 feet 9 inches tall, and Jean is 6 feet 4 inches.

Officer Roger Birch testified that he first saw In kneeling behind the Altima at about the same time another officer saw Jean nearby. Birch testified that In got into the car through the passenger-side door and began driving east. Birch testified he followed In for about a block before the Altima crashed into a house, most likely to avoid a police cruiser coming toward the car. Birch testified that In got out of the Altima and ran, and Birch got out of his cruiser and chased him on foot.

Birch’s testimony was contradicted in several key areas. In a report created hours after the robbery, Birch wrote that he first saw In sitting inside the Altima, rather than kneeling nearby. In an interview with detectives on March 20, 2007, Birch gave a third account, testifying that he initially saw “An Asian man running northbound on Sixth Street.” Birch testified he had no idea how that statement got introduced into the report.

Officer Peter Seabron testified that Birch did not drive east in pursuit of the Altima. He said that he drove up on the Altima after it crashed. Birch’s cruiser wasn’t there. In addition, Birch told a dispatcher that his car was still two blocks west, near Yun’s home.

Ben Levin, a forensic technician with the Philadelphia Police Department testified about the DNA evidence obtained from the gun and the latex gloves. He said that In was excluded as a contributor to all the items. Regarding the piece of latex glove found in the vestibule, Levin testified: “Jerry Jean and John In are excluded as contributors of the DNA detected in the sample. No further conclusions can be made at this time regarding any additional contributors of the DNA detected in this sample.”

Neither Lauren Baraldi, the assistant district attorney who prosecuted the case, nor Giuliani asked Levin about whether Marable’s DNA was tested against the evidence.

The state sought to present testimony from Marable, but he told the court that he would not testify and would remain silent if called to the stand. Marable’s attorney told him that, having pled guilty, he no longer had a right against self-incrimination. The attorney told the court that Marable had said he was scared to testify because he had received threats. Judge Sandy Byrd held Marable in contempt of court.

The state still called Marable to the stand, where he stood mute but was identified by a court official. After he left the courtroom, Baraldi read jurors a statement agreed to by Giuliani that said Marable had pled guilty to robbery and other charges in the home invasion.

During closing arguments, Giuliani argued that the case against In was circumstantial and relied on a single witness making a questionable identification after a traumatic event. The state presented no evidence connecting In with his co-defendants. Giuliani told jurors that In could not be the person Yun testified held him at gunpoint in the basement, because he was shorter than Jean and clearly not the tallest of the home invaders. Giuliani also said the DNA evidence pointed to In’s innocence and to the involvement of another unknown suspect.

The man in the basement had run out through the vestibule, Giuliani said, but the DNA from the latex glove fragment in the vestibule excluded Jean and In. “That’s not me telling you, that’s science. That’s science. That’s DNA. He’s excluded, it can’t be him, it can’t be him.”

“We know it can’t be Marable,” he said. “Marable goes upstairs, does anybody say Marable has latex gloves on? Did you hear that? When this rocket scientist figured he’ll hide in the bottom of the closet for three days until the family goes to work and he’ll slip out of the house. He’s not wearing gloves. And once he goes upstairs the evidence is he never comes back down until he is arrested.”

In her closing argument, Baraldi told jurors, “For John In to be not guilty, Dina Khem would have to had gotten up here, sworn under oath, in front of God and all of you and lied. For John In to be not guilty, Officer Birch would have stood in front of all of you, took an oath to God and lied. Now, if you believe that, that’s the only way that John In is not guilty.”

Baraldi said that Jean and In lived near each other in the same neighborhood, several miles away from the home invasion, and there was no explanation for what either man was doing in this neighborhood at five in the morning. She also said that Marable’s refusal to testify was because “he wasn’t going to snitch on his buddy.”

Marable’s DNA had never been tested, and no evidence was presented that tied him to the glove in the vestibule, but Baraldi said that “Dyshon dropped the glove.” Therefore, she argued, In’s exclusion as a contributor to the glove was not proof of his innocence.

On September 15, 2008, the jury convicted In of conspiracy. The next day it convicted him of burglary, two counts of robbery, possession of an instrument of crime and a violation of the uniform firearms act. He was later sentenced to between 25 and 50 years in prison.

Following his conviction, In began a series of appeals through the Pennsylvania courts. In 2011, he filed a pro se motion for post-conviction relief, claiming that Giuliani had provided ineffective assistance of counsel in his handling of Marable’s courtroom appearance. In said that Giuliani should have objected to Marable taking the witness stand and should have asked the judge to give the jurors instructions explaining that they should not infer In’s guilt from Marable’s pleas.

Six years later, after an evidentiary hearing was ordered, Giuliani testified about his trial strategy. He said that he wanted jurors to see Marable to drive home the point that this was a case of mistaken identity, as In clearly wasn’t the tallest man of the three. “I wanted Mr. Marable to be able to come into the courtroom so that the jury could see … his particular height,” he said.

Giuliani also said he didn’t ask for limiting instructions because he didn’t want to draw attention to Marable. “If something doesn’t hurt my client, why mention it?” he said.

On April 23, 2019, the Superior Court of Pennsylvania affirmed In’s conviction and denied his motion for relief.

On February 9, 2021, In filed a petition for a writ of habeas corpus in U.S. District Court for the Eastern District of Pennsylvania. Now represented by Karl Schwartz, In again asserted that Giuliani’s representation had been inadequate, but he also added two additional claims: First, Giuliani should have objected when Baraldi referenced God in her closing arguments; and second, that Giuliani erred by not seeking DNA testing on the vestibule glove.

As part of the motion, Schwartz submitted a report from Guardian Forensic Services, which had tested a DNA sample Schwartz obtained from Marable. He was excluded as a contributor to the DNA found on the vestibule glove fragment.

“It is a fact that wholly exonerates Petitioner, since it demonstrates, by sheer process of elimination, that the third individual who alighted from the basement could not have been Petitioner,” the motion said. “This is so, because there has never been any question that Jean and Marable (both of whom pled guilty) constituted two of the three perpetrators. Since Petitioner and Jerry Jean were long ago excluded as wearers of the vestibule-glove, and now Marable is excluded, there is no question that the third person involved in the crime could not have been Petitioner."

The motion also said Guardian compared the DNA on the glove to DNA found on the gun in the Altima. The samples were found to share alleles in common, meaning “it cannot be ruled out [that] there is at least one common contributor,” the motion said.

After Schwartz received these reports, he notified the Philadelphia County District Attorney’s Conviction Integrity Unit of the findings. The office conducted its own tests, and on January 14, 2022, agreed that In was entitled to a new trial based on ineffective assistance of counsel related to the DNA testing. It did not address the other claims in the habeas petition.

“Because the new DNA evidence – considered in conjunction with the pleadings, the trial and post-conviction records, and the factual record set forth below – undermines the Commonwealth’s original theory of the case, the Commonwealth cannot have confidence in the integrity of In’s conviction,” the state’s response said. It characterized Birch’s testimony as “shaky.”

Prosecutors did not concede that In was innocent. “While the DNA evidence proves In was not one of the three individuals known to be in the house during the home invasion, it does not prove In was completely uninvolved in the robbery,” the response said.

Separately, Jean said in a declaration on March 15, 2021, that prior to the home invasion, he spent most of the night of March 6-7 a few blocks away, in an area known for drug dealing. Although In was in that area, Jean said, “John In did not accompany me, or the other two who entered that house. He never entered that house, and had no part of the incident.”

On February 28, 2022, U.S. Magistrate Judge Marilyn Heffley recommended that the court grant In’s petition. She said that Giuliani had failed to properly investigate In’s case and provide proof of the identity of the third person in the house. “Absent a DNA comparison between Marable and the glove piece, however, the prosecutor was able to argue to the jury that there was no unknown third perpetrator, but rather Marable was the man who dropped the glove piece,” she wrote.

Judge John Gallagher of U.S. District Court accepted Judge Heffley’s recommendation, granting In’s petition and vacating his conviction on May 23, 2022.

Judge Anthony Kyriakakis of the Philadelphia Court of Common Pleas granted a motion by prosecutors to dismiss In’s charges on June 9, 2022. In was released from prison on June 10, 2022.

“I’m overjoyed at this result,” said Schwartz. “Based on the entirety of the evidence, there’s no reason to suspect that John was involved in the home invasion.”

– Ken Otterbourg

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Posting Date: 6/23/2022
Last Updated: 6/23/2022
Most Serious Crime:Robbery
Additional Convictions:Burglary/Unlawful Entry, Gun Possession or Sale, Illegal Use of a Weapon, Conspiracy
Reported Crime Date:2007
Sentence:25 to 50 years
Age at the date of reported crime:23
Contributing Factors:Mistaken Witness ID, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:Yes