Pennsylvania S. Ct. Finds Pattern of “Lack of Candor” in Philadelphia D.A. Krasner’s Filings Urging Reversal of Murder Convictions

From yesterday’s decision in Commonwealth v. Brown, written by Justice Kevin Dougherty, joined by Justices Sallie Updyke Mundy, Kevin Brobson, and Daniel McCaffery; all the opinions put together come to 70K words, so all I include are short excerpts:

The prosecutor does not decide whether a defendant is entitled to relief under the Post Conviction Relief Act (PCRA). This is the exclusive province of the PCRA court.

Nonetheless, while not dispositive, a prosecutor’s concession of relief is undoubtedly influential. Courts have long been instructed to give such concessions “great weight[.]”

But when the prosecutor sides with a defendant, there generally is no adversarial testing of the defendant’s entitlement to relief, and the court is left without the benefits of opposing advocacy, including the presentation of counterarguments and exposure of misrepresentations of fact and law. The PCRA court’s review is limited to the record before it. If relevant evidence is withheld from the court, this pertinent information goes unconsidered. The court is not permitted to conduct its own independent investigation of extra-record materials, and it is not equipped to do so in any case. For these reasons, an unreliable prosecutorial concession substantially risks the erroneous grant of relief by the court.

This is not to say a prosecutor should never concede relief. A prosecutor bears the responsibility of a minister of justice and not simply that of an advocate. Hence, a prosecutor is duty-bound to confess error, provided the facts and law call for it.

But the proviso is critical. When relief is not dictated by the record and law but merely advocated for personal, political, ideological, policy, or other non-legal reasons, a prosecutor’s concession does not minister justice; it facilitates injustice.

Here, in this case reviewed under our King’s Bench jurisdiction, the Philadelphia District Attorney’s Office (DAO), on behalf of the Commonwealth, conceded that Lavar Brown (Brown), a convicted murderer sentenced to death for a separate murder, was entitled to a new trial based upon a facially untimely claim under the PCRA.

Upon careful review, we conclude this concession was not reliable. More specifically, we find the DAO conceded relief although none was warranted based on the existing record, violated its duty of candor to the PCRA court, withheld material evidence from the court, opposed efforts by amici to gain access to this evidence, submitted a false stipulation of fact, misstated facts in its pleadings, failed to conduct a reasonable investigation, and opposed a required evidentiary hearing. The predictable result was the erroneous grant of a new trial.

These circumstances, troubling as they are, would not warrant a remedy beyond reversal of the PCRA court’s order in this particular case if they were confined to this one case. Unfortunately, they aren’t. Since 2018, the DAO has conceded relief well over 100 times, mostly in murder cases like this one. There have been numerous instances of untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings. And the problems are poised to continue. There are apparently more than 1,000 cases yet to be reviewed by the DAO’s Conviction Integrity Unit (CIU), and the DAO vigorously defends its checkered concession program as a necessary corrective to past misdeeds by prior administrations.

The DAO’s active, ongoing, and problematic concession program requires broader remedial action to promote just outcomes. {Under our state constitution, this Court has “the power to prescribe general rules governing practice, procedure and the conduct of all courts … if such rules are consistent with th[e c]onstitution and neither abridge, enlarge nor modify the substantive rights of any litigant[.]”} Accordingly, in addition to reversing the PCRA court’s grant of a new trial here, we also hold that in any PCRA case in which the DAO concedes relief, the PCRA court shall grant the Office of Attorney General (OAG) notice and the right to intervene in the case before ruling on the concession. Regardless of the OAG’s position on the concession if it chooses to intervene — it may well agree relief is warranted — its independent assessment and participation will enhance the reliability of the proceedings and the PCRA court’s ultimate decision…. Our holding applies only in Philadelphia County, but that is because that is where the problem is….

A brief excerpt from Justice Brobson’s concurrence, joined by Justice Mundy (both fully joined the majority opinion as well):

[W]hat happens if the prosecutor acts in a way that calls into question the reliability of the PCRA proceeding itself? What happens if the prosecutor concedes error where none exists? Even worse, what happens if the prosecutor withholds record evidence that contradicts the prosecutor’s concession, causing a PCRA court to upend a lawful verdict against the interest of the community? Following this cascade, the absence of any adverse party at the table means the PCRA court’s erroneous action, based on misleading advocacy from the Commonwealth’s representative, escapes appellate review….

[A] jury of Brown’s peers convicted him in Philadelphia County and sentenced him to life in prison for his crimes. As we explained in Brown I, the community “has an interest in the verdict, which may … be disrupted only if a court finds legal error.” To me, that is what this case is about and why we invoked our seldom used King’s Bench authority here—to protect the community’s interest in a verdict from prosecutor misfeasance or malfeasance in a subsequent PCRA proceeding….

[T]he Majority employs remedies properly aimed only at Philadelphia County. I am of the view, however, that PCRA courts throughout the Commonwealth will benefit from the lessons learned in this case when faced with similar circumstances….

Justice McCaffery also concurred; an excerpt:

I write separately to note my recognition of the problem and the need to remediate, but would order a different procedure to address these concerns. My proposed resolution [of having the OAG handle these cases -EV] would … not be limited to one county, one District Attorney and one limited class of cases but would apply statewide to any case where a PCRA petition alleges prosecutorial misconduct as the basis for a new trial, since I believe the law requires disqualification of any District Attorney’s Office from investigating, evaluating, or litigating such a claim. Further, since the PCRA is civil in nature, the Commonwealth Attorneys Act and our Rules of Professional Conduct mandate that the Office of the Attorney General represent and defend the Commonwealth in all such proceedings….

Justice Christine Donohue, joined by Chief Justice Debra Todd, dissented (except for a concurrence on one particular matter, “the PCRA court’s failure to hold an evidentiary hearing”); an excerpt:

In my view, our decision in Commonwealth v. Brown (Pa. 2018) (“Brown I“) answers the question of what procedure must be followed and sets the guardrails for granting relief based upon concessions of error. We instructed PCRA courts that an independent review of the record is required when considering such a petition. That mandate presumes that the PCRA court will utilize its authority to conduct the proceedings in such a way that it is satisfied that the record supports relief.

The Majority’s fabrication of a third-party intervention rule only in Philadelphia County proceedings is unnecessary. Moreover, it undermines the authority of PCRA courts in Philadelphia County to control their own courtrooms and underestimates the ability of these courts to ensure the adequacy of the record presented by the parties. Most critically, the rule crafted by the Majority far exceeds this Court’s authority under the Pennsylvania Constitution….

The Majority relies on cases handpicked by the Office of the Attorney General (“OAG”) to demonstrate “unreliable concessions and erroneous grants of relief” by DAO. To the contrary, from my reading, these examples demonstrate that these courts effectively engaged in independent review in conducting concession of error proceedings. The tools at a court’s disposal ensure the effective administration of justice.

In each of the cases discussed by the Majority that involved factual concessions, the courts denied relief, demonstrating independent review of concessions of error. The courts, inter alia, determined whether there was a need for an evidentiary hearing based on any inadequacies in the record. In each of the cases discussed by the Majority, the courts utilized existing resources to resolve the petitions without reliance on a concession of error. We are continuing to see PCRA courts in Philadelphia County rely on these tools in concession of error proceedings throughout the pendency of this case….

Finally, this Court cannot invoke King’s Bench powers to counteract policy choices of elected officials. By restructuring PCRA procedures in Philadelphia County where the elected District Attorney concedes error, the Majority abuses our King’s Bench authority. Creating an intervention rule in these isolated concessions of error PCRA proceedings diminishes the District Attorney’s authority and interferes with his obligation to rectify the injustice of a conviction improperly obtained….

And from Justice David Wecht’s dissent:

The Majority’s edict will force common pleas judges in our most populous county to disregard the will of the people’s duly elected prosecutor, to gratuitously involve Pennsylvania’s Office of the Attorney General (“OAG”), and to encourage the OAG to intervene on behalf of the Commonwealth as a categorical matter in a class of PCRA cases. This novel procedure is neither mandated nor permitted by statute or rule….

The Majority claims that its remedy is necessary to “promote just outcomes.” While all aspire to that worthy goal, the manner in which the Majority seeks to effectuate it far exceeds the power and role of the judiciary. If Philadelphians do not approve of the way in which their elected prosecutor is performing his duties, they can replace him. It is not our job to do so….

The Majority proclaims that it cannot “ignore the reality that the PCRA court’s erroneous grant of relief in this case was abetted by the DAO’s lack of candor and failure to conduct a reasonable investigation.” The Majority identifies what it believes to be a litany of ethical violations committed by the DAO throughout the history of this case.

The Majority does not explain how a discussion of those purported violations falls within the appropriate limits of our King’s Bench power. It bears repeating that King’s Bench cannot be invoked merely as an alternative to existing and available processes and procedures. All Pennsylvania lawyers must abide by our Rules of Professional Conduct. Any violations of those rules must be alleged first in a complaint to the Office of Disciplinary Counsel. These are adjudicated before the Court’s Disciplinary Board, and this Court thereafter renders a final decision. In the face of this, the Majority nonetheless bypasses established procedures and publicly declares the DAO guilty of various ethical violations sua sponte—without hearings, counsel, briefing, or any other procedural protections. This endeavor far exceeds the intentions and boundaries of our King’s Bench power….

For a post on a related issue, see Paul Cassell’s post from two years ago, The Third Circuit Affirms Sanctions Against the Philadelphia D.A.’s Office for Failing to Confer with Crime Victims.