By R. Seth Williams:
Since his election, Larry Krasner has praised himself for his record exonerating individuals he has decided were wrongfully convicted. His office’s data dashboard contains a list of Philadelphia County “exonerations” with columns listing the District Attorney at the time of the alleged “wrongful conviction” and another listing the “Exonerating District Attorney”
My name appears on both lists.
Not surprisingly the name that appears most often in the “Exonerating District Attorney” column (a total of 25 times) is “Krasner.” When discussing his office’s work on conviction integrity, Krasner does not limit himself to praise of his own efforts. Like his emotional doppelgänger Donald Trump, Krasner’s self-proclaimed greatness is always tied to his predecessors’ “terribleness”’ Here he is on his office website commenting on the work of earlier prosecutors: “Prior to 2018, this office conducted no meaningful review of credible claims regarding unconstitutional or illegal investigations resulting in convictions. In fact, this office was more likely to defend the most problematic convictions every step of the way — no matter how clear the DNA test results or other exculpatory evidence.” (emphasis mine)
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The National Registry of Exonerations explains that “an exoneration occurs when a person who has been convicted of a crime is officially cleared based on new evidence of innocence.” Unlike Krasner, who declares each exoneree “innocent” or “likely innocent,” juries and judges in Philadelphia do not determine innocence. Instead, they review the evidence presented and decide if an accused is guilty or not guilty — meaning that the government has either proven their case beyond a reasonable doubt or not.
The failure to prove a case does not indicate innocence; it indicates a lack of proof. There are cases where there is objective evidence of innocence such as where another individual admits responsibility for the crime or forensic evidence like DNA demonstrates beyond doubt that the person convicted could not have committed the crime. These are the exception, not the rule.
Most often an exoneration is based on a subsequent determination that information was withheld or witnesses lied such that had the jury or judge known those facts it is unlikely they would have decided the defendant was guilty. In those cases exoneration typically involves a decision to forego a retrial as a matter of fairness. As a result, the new evidence is never tested. Instead, the defendant is released in the interest of justice based on the subjective judgment and recommendation of the elected District Attorney.
When I was District Attorney, I established the first Conviction Integrity Unit in the history of Pennsylvania. (It was that unit that investigated and produced the exonerations I am credited with on Krasner’s dashboard). As an African American I am acutely aware of the horrific history of wrongful convictions in this country. I spent a significant amount of my time in law school immersing myself in that history and the important constitutional safeguards necessary to ensure the fair administration of justice. I created the unit to thoroughly and exhaustively investigate cases in order to find instances of actual innocence and right the wrongs of the past.
When I joined the DA’s office as a prosecutor in 1992, it was with skepticism and fear. Had I joined a team of racists and oppressors? This is not hyperbole: I grew up black in West Philadelphia and had my share of stories that most black men of my generation have; being stopped and harassed by police, investigated, pushed around and generally mistreated.
I was both relieved and inspired when I arrived in the DA’s office and immediately found multiple African American mentors who were proud, honest prosecutors. These were mostly black men who were closer to my mother and father’s generation then they were to mine. Many were from the South and had lived through segregation and had been victims themselves of vicious bigotry. Some had served in the military (some in combat in Vietnam) and all had gone through college and law school and chosen at some point to be prosecutors. They were not racist; they had been victims of racism. They were not oppressors. Within the criminal justice system they were liberators who sought to bring order and fairness to communities long abandoned by the authorities.
When I say these men were my mentors, I mean they raised me as a prosecutor. They taught me the science and art of advocacy and their lessons were always grounded in honesty and integrity. They walked me through the law library to find useful case law. They told me which trials to go watch. They sat me down in their offices and I listened. These were great men.
They came from one generation where the criminal justice system was designed for the specific purpose of convicting and incarcerating black people to another generation where they as black lawyers could work to fix that system and ensure it was fair to both black defendants and black victims of crime. They had grown up in an era where the criminal justice system pursued and imprisoned innocent blacks for crimes against whites while ignoring crimes against blacks.
Today less than half of the killers of blacks in America are ever arrested. This is not entirely an investigative problem. Instead, it is the cultural legacy of hundreds of years of police and prosecutors declining to investigate, arrest and prosecute the murderers of black citizens. The absence of legitimate authority in black communities begat the rise of illegitimate authority through violence. So, for a black prosecutor raised in the South to stand in court representing the legitimate authority of the state on behalf of poor black murder victims was a profound sign of progress toward equal justice under the law. It was a break from the past which was mirrored by the rise in the police ranks of trained and educated black law enforcement professionals.
All of the black prosecutors I worked with understood just how profound their role was in transforming a system that had devalued the lives of black victims into a system where the lives of black victims mattered. Leading this transformation was excruciatingly hard work. Even as prosecutors wielding the power of the state they still had to confront and overcome racism from their peers, judges, police and defense lawyers. But they persevered and became among the finest lawyers in the city. Their work required investigating and presenting the most difficult cases to judges and juries in order to get some measure of justice for black families whose loved ones were murdered. They did it every day through some of the bloodiest, most violent years in our city’s history.
It was with this history and that excruciatingly hard work in mind that I started the Conviction Integrity Unit. On the one hand I believed then and I believe now that there are few sins greater than the conviction of an innocent person. On the other hand, I understood that overturning a guilty verdict is not a step to be taken lightly, but rather with honesty and integrity.
The work of juries and judges has to be respected unless there is clear evidence of error or misconduct. Likewise, the work of prosecutors, including the black men who mentored me, should not be sullied as an excuse to release a prisoner in order to fulfill some ideological agenda. Even with this high standard in mind and contrary to Krasner’s self-serving declarations my office did conduct “meaningful review of credible claims regarding unconstitutional or illegal investigations resulting in convictions”. And we did approve the exoneration of convicted felons including murderers, but only when those exonerations were supported by credible facts, evidence, and rational arguments.
Larry Krasner has a different approach to this work. His approach is based on ideology and hubris and is, I believe, having a devastating effect on the criminal justice system and the reputations of decent hardworking prosecutors of the past and present.
They were not racist; they had been victims of racism. They were not oppressors. Within the criminal justice system they were liberators who sought to bring order and fairness to communities long abandoned by the authorities.
Almost none of the 25 exonerations Krasner takes credit for were based on “DNA test results or other exculpatory evidence,” Instead they were based on allegations of gross misconduct by police and prosecutors and recantations by witnesses who decades later decided to change their sworn testimony. Krasner and his prosecutors routinely support exonerations by defaming former prosecutors, some of whom are deceased, by accusing them of horrible acts of dishonesty. They do so under the cloak of privilege in court filings which are quickly republished in the Inquirer or elsewhere.
These accusations against former prosecutors in many cases form the sole basis for the exoneration, despite the fact they were never reviewed or tested by anyone because Krasner has abandoned the adversarial system. For our system to work, allegations of misconduct must be tested through debate and vigorous scrutiny and examination. My Conviction Integrity Unit cooperated with defense counsel in investigating claims of wrongful prosecution, but we understood that in an adversarial system our job was to represent the interest of justice and not take, hook line and sinker, anything offered by the defendant’s lawyer.
Krasner’s office in contrast has been co-opted by the defense bar. His lawyers and the defendant’s lawyers routinely write joint motions in which Krasner’s office adopts and agrees to outrageous, unsupported claims of misconduct against police and prosecutors. These former police and prosecutors, if they are alive, are rarely contacted by Krasner’s office and given an opportunity to respond to the accusations before they are published in the Inquirer. Krasner, the defense bar, and the Inquirer are all on the same page so whatever any defendant makes up against any former member of law enforcement is accepted — period. The truth of the claims are rarely tested in any forum and the legitimate claims are lumped together with the baseless so that “every cop is criminal and all the sinners saints.”
Krasner’s abdication of his duty as an advocate was illustrated in stark terms in a recent federal habeas appeal before Judge Mitchell Goldberg. Although it involved a death sentence and not an effort to exonerate a defendant, the case exemplifies Krasner’s approach to appellate work where he gives defendants and their lawyers free rein while ignoring victims and the interest of justice. The case involved a challenge to a death sentence imposed on Robert Wharton, who was convicted of multiple murders and the endangerment of an infant child. Here are excerpts from Judge Goldberg’s opinion describing portions of the crime:
“Wharton returned to the second floor, moved Ferne (the wife of the male victim, Bradley and mother of the infant) to the bathroom, strangled her with one of her husband’s ties, then filled the bathtub and forced her head under water.
The brutality exhibited by Wharton and his co-defendant as they terrorized Bradley and Ferne Hart for months before murdering them and leaving their infant daughter to freeze to death would surely have weighed heavily in the minds of the jury (parenthetical added).”
In a stunning opinion Judge Goldberg highlighted the dishonesty of Krasner and his prosecutors in the effort to assist Wharton in evading a death sentence. As outlined in his opinion, Judge Goldberg took the unusual step of appointing the State Attorney General Josh Shapiro’s office to represent the interest of the Commonwealth because Krasner’s office was acting jointly with defense counsel to undo the sentence that had been imposed by a judge and jury.
In other words Krasner had so obviously abandoned his role as advocate for the Commonwealth that the Judge had to appoint another prosecutor’s office to fulfill that role.
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Regardless of your opinion of the death penalty, if you believe in the adversarial system which is the foundation of our justice system then Krasner’s conduct here should be troubling. More troubling still, he did not simply leave the prosecution team, he joined the defense team by collaborating with defense counsel to mislead the court. After conducting a hearing in which the Attorney General Josh Shapiro’s office performed the adversary function left vacant by Krasner, Judge Goldberg concluded in part that…” I preliminarily conclude that on two critical issues in this case, it appears that the District Attorney was less than candid with this Court.” The Judge’s opinion goes on to detail the DA’s “lack of candor” for first withholding key information from the court and second falsely claiming that the District Attorney’s victim witness unit had consulted the victim’s family about their decision to collaborate with defense counsel to reverse the jury’s decision. From Judge Goldberg’s opinion;
“The first issue pertains to facts known to the District Attorney, but withheld, regarding Wharton’s premeditated escape from a Philadelphia courtroom. This escape was not disclosed to me when the District Attorney requested that I blindly vacate Wharton’s death sentence on the ground that his trial counsel had ineffectively failed to offer positive prison adjustment evidence, and was only brought to my attention after I appointed the Attorney General’s Office.“
“… the fully developed record before me reflects that no communication occurred between the District Attorney and the only surviving victim, Lisa Hart-Newman, and that minimal and woefully deficient communication took place with the siblings of the deceased, Bradley and Ferne Hart.”
The irony is that this ethical violation — withholding evidence and lying — is the exact misconduct of which Krasner so cavalierly accuses former prosecutors of when he is “exonerating” convicted killers.
The fact is that many of the claims that form the basis of Krasner’s exonerations were heard by juries, Judges and appeals courts and rejected. In Krasnerland, these previously debunked accusations find new life. He and the prosecutors assigned to the Conviction Integrity Unit are inclined to believe anything bad about police and prosecutors, or else they are willing to play along because doing so supports their ideological agenda. Either way the result is that stories that judges and juries have already rejected are accepted as the gospel, put in a legal motion, and published to the world.
I have a bias in this story. I presided over the office when some of the convictions he is challenging were obtained. But that is sort of the point; I knew the men and women he is now accusing while providing them no voice and no recourse to respond to the accusations. These prosecutors were decent hard-working citizens. They dedicated their lives to public service and agonized over their work and the pursuit of justice.
They did not have horns and a tail. They were not, as Krasner likes to “joke,” war criminals. They were brave men and women who took on tough cases on behalf of voiceless victims and they won; for the victims, their families and for justice. Not always, but enough that they made a positive difference in the lives of the survivors and this city. Krasner also has a bias: he represented many of the criminal defendants that those same men and women were prosecuting….and he lost, many, many times.
So, when Krasner collaborates with defendants and their lawyers to promote false accusations against former police and prosecutors we can only speculate about his motives. Is it ego, ideology or pay back for all those years he spent losing cases?
One thing is clear, it is not about justice and it is not harmless. His conduct has created a “boy who cried wolf” syndrome in which dubious claims of misconduct overshadow and cheapen legitimate claims of innocence. He has corrupted the system to the detriment of the people is claiming to help.
I am opposed to life without the possibility of parole and have written about that. Reasonable people can and should debate the morality of the death penalty. Krasner could fight for those changes, but should not falsely exonerate people.
R. Seth Williams is the former district attorney for Philadelphia, and was the first African-American elected as a district attorney anywhere in the commonwealth. Follow him on Twitter at @newsethwilliams.