Killing of boy, 12, goes unpunished

Nobody will go to prison for the death of Kholen Germany, the 12-year-old boy killed last year as he tried to duck from gunfire in his hometown of Wilkinsburg.

The man who admitted he shot the boy — mistakenly thinking Kholen was an assailant — got an immunity deal from the Allegheny County district attorney’s office. And yesterday afternoon, after 81/2 hours of deliberation, a jury acquitted Donald “Tank” Wilson, the man the DA put on trial for the slaying.
Kholen Germany

The prosecution argued that Mr. Wilson, 20, of Homewood, triggered a deadly chain of events by shooting into an occupied store from which the boy’s killer, subsequently, returned fire.

The jury of seven women and five men were split 6-6 at the start of deliberations. To get a third-degree murder conviction, jurors had to agree unanimously.

Jurors reportedly tangled over the lack of physical evidence and the actual killer’s contradictory statements. And there was suspicion that Mr. Wilson was likely the person who started the gunfight, but jurors could not be sure beyond a reasonable doubt.

The victim’s mother closed her eyes and wept when the jury forewoman read “not guilty” on third-degree murder and other charges, including involuntary manslaughter, aggravated assault, shooting into an occupied structure and five counts of reckless endangermen.

Several minutes later, as reporters crowded around the defendant’s lawyer and family, a male relative of the victim’s, who sat through the week-long trial, began shouting on a landing above a grand courthouse stairway, “Unjustified! Unjustified! They ain’t heard the last of me.”

The district attorney did not prosecute the actual killer, Kevin Johnson, 25, of Homewood, for the slaying because investigators determined that he fired in self-defense at the boy, who ran into the store seeking shelter from gunfire outside.

Mr. Johnson testified that his brother Korey said a man he had an ongoing feud with, nicknamed “Tank,” began shooting at him as he spoke on a cell phone outside. Korey and Kevin Johnson and two others then hid in a bathroom at the back of From Head 2 Toe on Wood Street. Kevin Johnson said a blurry figure came rushing toward them and Korey yelled, “Bro, that’s Tank. Shoot, bro, shoot!” Kevin fired a single bullet, mortally wounding the 12-year-old.

Under cross-examination, Kevin Johnson admitted that after the accidental killing April 18, 2008, he lied to police about the assailant’s identity because he still intended to go out and kill Donald “Tank” Wilson himself.

Juror Robert Deboth later explained that after Mr. Johnson lied three times to police it was tough to rely on his testimony. They wondered, “This is supposed to be the one time we believe him?”

In his closing, defense attorney Paul R. Gettelman told jurors, “The commonwealth made a deal with the devil” by offering an immunity deal, or “a license to kill,” to Mr. Johnson.

Police had no blood, fingerprints or physical evidence that linked Mr. Wilson to the scene, another reason for the jury’s verdict, Mr. Deboth said, adding that lack of evidence left them “so many unanswered questions.”

Korey Johnson, a vital prosecution witness who testified at a preliminary hearing that he was Mr. Wilson’s intended target, died last fall in a Point Breeze shooting. The judge blocked the jury from hearing his testimony because the defense could not cross-examine him.

Assistant District Attorney Lisa Pellegrini called a mother and daughter who were stopped at a traffic light in their car the afternoon of the shooting. Both separately picked out Mr. Wilson from a police photo array as the man shooting into the store.

Mr. Gettelman said his client’s arms were riddled with tattoos. Both women described the shooter wearing a tank top, yet neither of them testified they saw tattoos on his body.

A friend of Kholen’s who was supposed to meet him that day for a sleepover testified that he saw the shooter wearing a bandana. But he gave a different color for the bandana than the women did.

“There were discrepancies in the [witnesses'] stories,” which made it hard for them to conclude Mr. Wilson was the shooter, Mr. Deboth said.

Juror Roy J. Gongaware, 56, said he thought from the start of deliberations that the prosecution had failed to prove Mr. Wilson was guilty. “It was terrible that a little boy died, but this guy wasn’t the one that killed the little boy, and there was not enough proof beyond a reasonable doubt that [Mr. Wilson] started the actions that led to the killing,” he said.

To get a third-degree murder conviction, the prosecution had to prove that Mr. Wilson was the shooter and that Kholen’s death was a foreseeable consequence of firing into an occupied building. The approach, rooted in case law, required that jurors agree unanimously that Mr. Wilson directly caused the slaying by initiating an unbroken chain of events led to the boy’s death.

“In my gut, I really thought he was probably the guy,” he said the juror. “My heart breaks for the parents. I wish this could be different, but the law’s the law.”

Several minutes prior, Before the verdict, Mr. Wilson’s family members held hands and prayed as the jurors took their seats in the jury box. At the words, “not guilty,” the defendant’s mother burst into tears and ran from the room. Mr. Wilson gave his attorney a hug and told him, “I love you.” Common Pleas Judge Jeffrey A. Manning told him that could expect be released from the county jail as he had no charges pending. The defendant let out an audible sigh as sheriff’s deputies led him from the room.

Kholen’s relatives declined comment yesterday.

Mr. Wilson’s cousin, Brian Coleman, said the family anticipated a conviction after “the DA lied, the police lied and the witnesses lied,” but felt grateful the jury saw through it.

“What they did is they let the real killer go,” said Mr. Gettelman.

Paula Reed Ward contributed. Gabrielle Banks can be reached at 412-263-1370.