The state's high court said District Attorney Larry Krasner conceded in many post-conviction proceedings for people convicted of murder — including 75% of Philadelphia defendants who were on death row when he took office. But the court said there were "numerous instances of untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings."
"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," Justice Kevin Dougherty wrote for the majority.
The court took the extraordinary step of using its King's Bench authority to intervene directly and deliver the sharp rebuke to Krasner, a self-proclaimed progressive prosecutor. Since coming into office in 2018, he has sought to reduce incarceration and has staffed up his office's conviction review unit.
Under Tuesday's ruling, courts handling post-conviction relief proceedings in Philadelphia County must give notice to the Pennsylvania Attorney General's Office and allow it to intervene before making a ruling.
The order stems from Philadelphia prosecutors' concession that Lavar Brown, who was convicted of murder, was entitled to a new trial over the 2003 slaying of a drug store manager during a robbery.
In 2021, Krasner's office conceded prosecutors had committed a Brady violation in the case by withholding evidence that favored Brown — a key witness' purported false incrimination of another person. Prosecutors urged the court to grant a new trial to Brown without an evidentiary hearing, which the lower court ultimately did.
However, on Tuesday, the Pennsylvania Supreme Court found that the evidence of the Brady violation was unconvincing and that Brown sought post-conviction relief too late. His conviction became final in 2007.
The high court described several other post-conviction relief cases in which Philadelphia prosecutors made questionable confessions of error in bids to vacate murder convictions.
Prosecutors abandoned their role in the courts' adversarial process, leading to unjust results, Justice Dougherty argued in his opinion Tuesday.
"DA Krasner remains free 'to exercise his discretion on behalf of the Commonwealth in Philadelphia's criminal [and PCRA] cases,'" the opinion says, referring to the state's Post-Conviction Relief Act. "But the means for achieving those ends cannot transgress the bounds of the law, and what we have seen in this case and too many others is the opposite of justice. Again and again, the DAO has made unreliable concessions unsupported by the facts and law."
In a dissenting opinion, Justice David Wecht argued that the Pennsylvania Supreme Court should not have used its King's Bench power to intervene in this case. He also criticized the majority's use of the authority to expand its inquiry to other cases, and then attempt to correct the perceived problem "by fashioning an unprecedented and unconstitutional remedy."
"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, and to encourage the OAG to intervene on behalf of the commonwealth as a categorical matter in a class of PCRA cases," he wrote. "This novel procedure is neither mandated nor permitted by statute or rule."
The Philadelphia District Attorney's Office did not immediately respond to a request for comment Tuesday afternoon.
Brown is represented by Samuel Angell, Andrew Childers, Timothy Kane and Tracy Ulstad of the Federal Community Defender Office, and David Osborne.
The commonwealth is represented by Katherine Ernst and Thomas Gaeta.
The case is Commonwealth of Pennsylvania v. Lavar Brown, case number 32 EM 2023, in the Supreme Court of Pennsylvania, Eastern District.
--Editing by Marygrace Anderson.
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