March 28, 2000 DA WILL SEEK TO VACATE '96 MURDER CONVICTION By Shelley Murphy, and John Ellement, Globe Staff More than five years after Donnell Johnson was sent to prison for fatally shooting 9-year-old Jermaine Goffigan as the boy counted his Halloween candy, officials conceded yesterday that Johnson was wrongly convicted by the "mistaken" testimony of eyewitnesses. Suffolk District Attorney Ralph C. Martin II said his office would ask a judge today to vacate the murder conviction of Johnson, 22, who was freed in November after new evidence first surfaced. "Donnell Johnson was convicted twice, largely on eyewitness accounts of the murder offered by family members of Jermaine Goffigan," Martin told reporters during a late-afternoon press conference at his office. "After a lengthy investigation we have concluded that those witness accounts were mistaken." Both Martin and Boston Police Commissioner Paul Evans publicly apologized to Johnson for sending him to prison, just minutes after meeting privately with Goffigan's mother and grandmother to tell them they no longer believe Johnson is guilty of the 1994 murder. Bitterly disappointed as she left Martin's office, Goffigan's grandmother, Dorothy Haskins, told reporters, "All I have to say is the criminal justice (system) here in Boston, Massachusetts, killed my grandson again. They put a bullet in him again." Unshaken in her belief that Johnson killed her grandson, Haskins said, "Your eyes don't fool you. Ralph Martin might as well have said we were blind." It was one of the city's most searing murders. On his ninth birthday, Goffigan was felled by gang crossfire as he sat outside his grandmother's apartment at the Academy Homes housing development counting the candy from his night of trick-or-treating. The exoneration of Johnson marks the second time in a year that Martin has freed a convicted murderer after new evidence revealed the wrong man had been sent to prison based on faulty eyewitness testimony. Marlon Passley of Somerville was set free last April after serving four years in prison for a 1995 drive-by shooting that killed 18-year-old Tennyson Drakes and wounded two other men in Dorchester. A man arrested by federal agents in a gang case said that Passley was innocent and implicated others. "Even though we strive for perfection, I would be less than truthful if I said mistakes aren't made," Martin said. "Just as mistakes are made, it's just as important, if not more important, to recognize when they are and to admit a mistake was made." Martin said his office will ask Juvenile Court Judge Paul D. Lewis to vacate Johnson's conviction during a hearing today. Johnson, then 16, was arrested the day after Goffigan was killed, after Goffigan's mother, brother, and a reputed member of the Academy Homes gang identified him as one of two gunmen who fired into a crowd and then fled in a car with one or two other suspects. The shooting was believed to be in retaliation for a shooting earlier in the night that wounded members of the Heath Street gang in Jamaica Plain. Convicted by a judge in March 1996 and by a jury in November 1996, Johnson was sentenced to 18-20 years in prison. In August, a member of the Heath Street gang facing federal drug charges cut a deal with prosecutors and insisted Johnson wasn't involved in the slaying. He blamed other gang members for the murder. Since September, a grand jury has been hearing evidence in the case and is now targeting new suspects, according to Martin. "We intend to find the persons responsible and we intend to convict them," Martin said. Attorney Stephen Hrones, who represents Johnson, stood on the sidelines during Martin's news conference and later told reporters, "They've done the right thing. Unfortunately, they didn't do it a long time ago." From the day Johnson was arrested, his mother, Robin, and the Rev. Bruce Wall, a Dorchester minister, led a group of supporters who insisted Johnson was innocent. Wall accused police of rushing to judgment. The case against Johnson was fraught with allegations of serious misconduct by police and prosecutors. Boston police failed to turn over an interview they had with Johnson, who claimed he had been home watching Monday Night Football when Goffigan was slain, until midway through his second trial. Earlier, Boston Police Sergeant Detective William Mahoney had testified that Johnson refused to be interviewed. The state Supreme Judicial Court upheld Johnson's conviction, but noted that the failure of police to produce Johnson's statement earlier "suggests either serious misconduct or negligence." While Martin insisted that the police handling of the case had nothing to do with Johnson's wrongful conviction, Hrones claimed that it did and called for an investigation. Were it not for a federal investigation into drug trafficking at the Bromley-Heath project that prompted a gang member to exonerate Johnson, Hrones said, he'd still be in prison.