Pennsylvania: Cleared by accusers, man kept jailed by law 33 years after triple murder, three witnesses admit to recant testimony

By William K. Marimow

The Philadelphia Inquirer

PHILADELPHIA (AP) -- By all accounts, the murders in the tiny town of Muncy on Aug. 6, 1976, were among the most horrific in the annals of north-central Pennsylvania crime: a mother, her little girl, and her toddler son shot to death in what appeared to be a home break-in gone tragically bad.

For more than seven months, state troopers investigating the case seemed stumped until a 14-year-old girl confided to two friends that a drug dealer named Colin Brown had told her he knew who the killers were.

In November 1977, three men were convicted of the murders based primarily on the testimony of Brown and two other young men with extensive histories of drug abuse and crime. Now, more than 33 years later, all three of those prosecution witnesses have said under oath that they lied when they accused one defendant -- Milton Scarborough, a town handyman and sawmill worker -- of taking part in the murders.

But a Pennsylvania law requires that new evidence of factual innocence other than DNA must be presented to the court within 60 days of discovery.

That law -- one of the most stringent in the nation -- has led state courts to deny Scarborough's appeals, most recently in October, and many others.

State Sen. Stewart J. Greenleaf, who helped draft the statute in 1995, said it was being interpreted too rigidly. It was never intended "to prevent serious appeals," he said, adding that Scarborough should get his day in court.

Investigators for Centurion Ministries in Princeton, who painstakingly assembled the case for Scarborough's innocence, say a case in which all the key prosecution witnesses recant is highly unusual. Moreover, they have affidavits from two witnesses who say another man, now living in Florida, tearfully confessed to participating in the crime.

At Scarborough's trial, Brown and Ricky Snyder testified that they had been partying at a shack on Snyder's family property when two brothers, Robert and David Hubble, arrived and described the killings in gory detail.

The third prosecution witness, John Shafer -- clearly the most important -- testified that he had accompanied the Hubbles and Scarborough to the crime scene, had stayed in the car while the others barged into the house, and had seen Robert Hubble pass a gun to his brother after they drove away.

The victims were Claire Kepner, 30, and her children, 10-year-old Tammy and 18-month-old Tommy. Kepner was a longtime resident of Muncy, a town of 2,600 not far from Williamsport, the Lycoming County seat and home since 1947 of the Little League World Series.

All three prosecution witnesses -- Brown, Snyder, and Shafer -- said that in exchange for their testimony, state police had promised them they would be treated leniently for outstanding criminal charges and, most important, would not be charged with murder.

Snyder was the first to recant, and he did so in open court in 1980 despite a stern warning from the prosecutor that he could be charged with perjury; Brown and Shafer recanted in sworn statements to Centurion.

Sarah Harer, the teenager who gave police their first break, also stated in a sworn affidavit that she had lied to authorities and that, in truth, she knew nothing about the Kepner homicides.

If their four statements are to be believed, they would dismantle the case against Scarborough, who has already served more than the minimum of his 30- to 60-year sentence for three counts of third-degree murder.

Brown and Snyder have died since their recantations, but their accounts are memorialized in notes of testimony and Brown's sworn affidavit.

Scarborough, now a frail 71-year-old with wisps of white hair and long white sideburns, remains hopeful that Centurion's efforts will extricate him from his prison cell at Laurel Highlands, a state facility in Somerset, Pa., just a few miles from the Pennsylvania Turnpike.

When Centurion agreed to take his case, Scarborough said in an April 15 interview, "boy, was I ever happy."

In Scarborough's latest appeal, filed in 2008, his attorney attached sworn statements from the two men who identified a Florida man as having participated in the murders. Those men reviewed their statements with The Inquirer, confirmed their accounts, and said they were prepared to testify.

Veteran prosecutors and defense lawyers say it is extremely rare for all prosecution witnesses in a case to recant their testimony and for other witnesses to come forward to implicate -- under oath -- someone else in the same homicide case. But the 60-day rule creates a formidable roadblock for Centurion and Scarborough's attorneys.

In rejecting Scarborough's latest petition to review the new evidence in October, Common Pleas Court Judge Robert E. Dalton Jr. wrote that Centurion had violated the 60-day rule by analyzing "the entire case, reviewing each morsel of information, and then compiling one comprehensive petition."

In recent weeks, Scarborough has retained two new lawyers with extensive experience in cases involving false convictions -- David Rudovsky and Leonard N. Sosnov -- to explore a new challenge to surmount the 60-day hurdle.

From Centurion's point of view, Dalton's ruling means that each time its investigators unearthed a piece of exculpatory evidence -- however minuscule -- Scarborough's lawyers would have had to file a separate petition with the court.

McCloskey asserted that the 60-day rule imposed an unrealistic burden on investigators who often work for years to build a convincing case that a person has been falsely convicted.

By requiring the courts to receive every piece of new evidence as it's unearthed, McCloskey said, the law deprives investigators of the opportunity to develop a case to the point where they can intelligently assess its solidity.

McCloskey appears to have a formidable ally in his interpretation of the law in Greenleaf (R., Montgomery), chairman of the Senate Judiciary Committee.

The primary purpose of the 60-day rule, Greenleaf said, was "to avoid frivolous appeals, which we were flooded with." The state attorney general, he said, requested the timetable.

Greenleaf, a lawyer himself, said that in a case like Scarborough's, in which attorneys have amassed significant evidence of factual innocence, "there should be an exception made. This is not what the legislature intended. We did not want to prevent serious appeals."

The Pennsylvania law, said Paul Casteleiro, a New Jersey lawyer who has specialized in cases of wrongful convictions, presents a very "high hurdle" for defense lawyers.

"Fragments (of evidence) do not make a valid claim," Casteleiro said. "If you don't have all the pieces, you probably shouldn't bring the action. If I do bring the action, I'm bringing a bad action."

Other states grant more leeway, Casteleiro said. In New Jersey, for example, defense attorneys in a case like Scarborough's would have one year to bring newly discovered evidence to the attention of the courts. Florida provides a two-year window, and in New York there is no specific time limit.

There are strong legal and humanistic rationales for imposing a timetable for presenting post-conviction evidence: One reason is to preserve the finality of a verdict and have an efficiently run court system. Beyond that is the belief among many in the criminal justice system that endless appeals are unfair to victims and their families.

The Scarborough case, said his trial lawyer, John M. Humphrey, "is a case that haunts me. It's one that I think about continually."

Set against Humphrey's ardent belief in Scarborough's innocence and the evidence gathered by Centurion is the view of Lycoming County District Attorney Eric R. Linhardt. In an interview in his Williamsport office, he said that "as district attorneys, we have an ethical responsibility to seek the truth." In the Scarborough case, he said, he is convinced that "justice has been done and that Mr. Scarborough is exactly where he deserves to be -- state prison."

Linhardt said he based his conclusion on three critical factors:

The fact that David Hubble twice confessed to state police that he and Scarborough had been present when his brother Robert killed the Kepners. David Hubble, who was tried separately -- Scarborough and Robert Hubble were tried together -- repudiated his statements before his trial and testified that he had confessed only because the state police promised to release him from custody if he admitted his role in the murders.

Published: Mon, May 2, 2011