H0240R3607A05891 MSP:JSL 11/10/22 #90 A05891
AMENDMENTS TO HOUSE RESOLUTION NO. 240
Sponsor: REPRESENTATIVE ECKER
Printer's No. 3607
Amend Resolution, page 1, lines 4 through 19; pages 2 through
21, lines 1 through 30; page 22, lines 1 through 27; by striking
out all of said lines on said pages and inserting
WHEREAS, Lawrence Samuel Krasner was elected to the position
of District Attorney of Philadelphia on November 7, 2017, and
re-elected to the position on November 2, 2021, pursuant to
section 4 of Article IX of the Constitution of Pennsylvania; and
WHEREAS, Pursuant to section 4 of Article VI of the
Constitution of Pennsylvania, only the House of Representatives,
as a body, has the power of impeachment; and
WHEREAS, Pursuant to section 6 of Article VI of the
Constitution of Pennsylvania, civil officers like District
Attorney Krasner may be subject to impeachment by the House of
Representatives for "any misbehavior in office"; and
WHEREAS, In its 1994 opinion in Larsen v. Senate of
Pennsylvania, the Commonwealth Court spoke to the meaning of the
language "any misbehavior in office" in section 6 of Article VI
of the Constitution of Pennsylvania; and
WHEREAS, Justice Larsen argued that the applicable standard
of "misbehavior in office" was nothing more than a codification
of the common law offense of misconduct in office, meaning "the
breach of a positive statutory duty or the performance by a
public official of a discretionary act with an improper or
corrupt motive"; and
WHEREAS, In its opinion, the Commonwealth Court held that
even if the strict definition espoused by Larsen were the
appropriate rule, Larsen's conduct still met that heavy burden.
More importantly, however, the court said that this "strict
definition...finds no support in judicial precedents." Stated
differently, there is no precedent that the current language is
so constrained; and
WHEREAS, The Philadelphia District Attorney's Office's stated
mission and statutory purpose is, among other things, to provide
a voice for victims of crime, protect the community through
zealous, ethical and effective investigations and prosecutions,
and to uphold and prosecute violations of the laws of this
Commonwealth and the provisions of Philadelphia's Home Rule
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Charter; and
WHEREAS, District Attorney Krasner, by and through his failed
policies and procedures, and throughout the discharge of his
duties as Philadelphia's chief law enforcement officer, has been
derelict in his obligations to the victims of crime, the people
of the City of Philadelphia and of this Commonwealth and has
failed to uphold his oath of office; and
WHEREAS, District Attorney Krasner is bound by the Rules of
Professional Conduct adopted by the Supreme Court, which set
forth the minimal ethical requirements for all attorneys
licensed to practice law in this Commonwealth, as well as the
Code of Judicial Conduct, which is applicable to all district
attorneys in this Commonwealth. 16 Pa. Stat. Ann. § 1401(o) ("A
district attorney shall be subject to the Rules of Professional
Conduct and the canons of ethics as applied to judges in the
courts of common pleas of this Commonwealth ..."); and
WHEREAS, There have been multiple incidents of District
Attorney Krasner exhibiting unethical conduct by lacking candor
to the Courts of this Commonwealth in violation of Rule of
Professional Conduct 3.3, committing professional misconduct in
violation of Rule of Professional Conduct 8.4 and engaging in
impropriety and or appearances of impropriety in violation of
Canon 2 of the Code of Judicial Conduct; and
WHEREAS, District Attorney Krasner has been in office since
January 2018. Under District Attorney Krasner's administration,
and as detailed herein, the city has descended into an
unprecedented crisis of lawlessness. By way of example only,
there were 562 murders in 2021, the most in the 340-year history
of the city. Under District Attorney Krasner, murders and
violence occur in every part of the city at every hour of the
day. Shootings on public transportation, in populated
neighborhoods with families and children, near schools and in
the center city business district have now become frequent and
routine. Open air drug markets have become ubiquitous. He has
decriminalized prostitution effectively destroying programs
designed to rescue women from addiction and human trafficking.
District Attorney Krasner has decriminalized retail theft
resulting in numerous businesses leaving the city. He has
released criminals back on to the street who go on to commit
even more heinous crimes of murder, rape and robbery against the
people of Philadelphia, the overwhelming majority of whom are
African American. This crisis of crime and violence is a direct
result of District Attorney Krasner's incompetence, ideological
rigidity and refusal to perform the duties he swore to carry out
when he became District Attorney. He has deliberately
eviscerated the District Attorney's Office's ability to
adequately enforce the laws of this Commonwealth; endangered the
health, welfare and safety of more than 1.5 million
Pennsylvanians that reside in Philadelphia and the tens of
millions of Americans who visit the city every year; and, his
conduct has brought the Office of District Attorney and the
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justice system itself into disrepute; therefore be it
RESOLVED, That Lawrence Samuel Krasner, District Attorney of
Philadelphia, be impeached for misbehavior in office and that
the following Articles of Impeachment be exhibited to the Senate
pursuant to section 5 of Article VI of the Constitution of
Pennsylvania:
ARTICLE I:
Misbehavior in Office In the Nature of Dereliction
of Duty and Refusal to Enforce the Law
Upon assuming office, District Attorney Krasner terminated
more than 30 assistant district attorneys (ADA) from employment
with the Philadelphia District Attorney's Office. Many of these
terminated assistant district attorneys were senior-level
staffers in supervisory roles who possessed significant
prosecutorial experience and knowledge of criminal procedure.
District Attorney Krasner replaced this vast institutional
knowledge in the Philadelphia District Attorney's Office with
attorneys who lacked any meaningful experience in prosecuting
criminal cases, some of whom only recently graduated from law
school.
District Attorney Krasner subsequently withdrew the office
from membership in the Pennsylvania District Attorneys
Association (PDAA) because, he asserted, PDAA supported
regressive and punitive policies. In withdrawing from PDAA,
District Attorney Krasner denied the attorneys in his office the
ability to participate in the various professional development
and training programs provided by PDAA through its educational
institute.
Rather than offering traditional prosecutorial training on
such subjects as prosecutorial ethics, human trafficking,
witness examination, trial advocacy, trial management and
achieving justice for domestic violence and sexual assault
victims, District Attorney Krasner offered attorneys seminars,
including "A New Vision for Criminal Justice in Philadelphia,"
"Deportation: The Unforeseen Consequences of Prosecution in our
Immigrant Community," and "Philadelphia and Safe Injection: Harm
Reduction as Public Policy." The Philadelphia District
Attorney's Office eventually returned to more traditional
prosecutorial training, however, the office continued to focus
on issues that promote District Attorney Krasner's radically
progressive philosophies rather than how to effectively
prosecute a criminal case.
Upon being elected to office, District Attorney Krasner
established a series of office policies with the purported
purpose to "end mass incarceration and bring balance back to
sentencing," and later adopted a series of policies related to
certain crimes or classes of people. These policies include
directives not to charge sex workers or individuals for certain
classes of crimes such as prostitution or possession of
marijuana and marijuana-related drug paraphernalia.
These new policies identified a series of offenses for which
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the gradation may be reduced with the purpose of "reduc[ing]
pre-trial incarceration rates as no bail is required and the
shorter time required for hearings expedites Municipal Court and
Common Pleas dockets," and requiring disposition of retail theft
cases unless the value of the item stolen exceeds $500 or where
the defendant has an extensive history of theft convictions.
District Attorney Krasner instituted policies to make plea
offers below the bottom end of the mitigated range under the
Sentencing Guidelines from the Pennsylvania Sentencing
Commission and seek greater use of house arrest, probation and
alternative sentencing when the sentencing guidelines indicate a
range of incarceration of less than 24 months.
In February 2018, District Attorney Krasner established a
policy that his office "will ordinarily no longer ask for cash
bail for...misdemeanors and felonies" listed in the policy,
because "[T]he cash bail system is rife with injustice and
exacerbates socio-economic and racial inequalities,
disproportionately penalizing the poor and people of color."
In November 2018, District Attorney Krasner adopted a policy
in which a criminal defendant's immigration status should be
considered in the plea-bargaining process, effectively providing
that if an immigration consequence is detected pre-trial or with
respect to a sentencing recommendation, counsel will advise if
an offer can be made to avoid the consequence.
Other policies that District Attorney Krasner directed were
as follows:
(1) Assistant district attorneys may not proceed in
cases against defendants driving under the influence of
cannabis when the defendants' blood "contains inactive
metabolite (11-Nor-9-Carboxy-Delta-9-THC) or 4 or fewer
ng/mls of psycho-active THC" and that "if the defense
presents evidence that calls impairment into question, an ADA
may consider dropping the charges against the defendant."
(2) The District Attorney's Office "will only oppose
motions for redactions or expungements in limited
circumstances" and sets forth various scenarios in which the
office will agree to, seek or not oppose the expungement of a
defendant's criminal history.
(3) The District Attorney's Office directed plea offers
and sentencing recommendations:
(i) for felonies, "aimed at an office-wide average
period of total supervision among cases of around 18
months or less of total supervision, with a ceiling of 3
years of total supervision or less on each case";
(ii) for misdemeanors, aimed at an office-wide
average of "6 months or less of total supervision, with a
ceiling of 1 year";
(iii) for all matters, for "concurrent sentences";
and
(iv) for cases involving incarceration, "for a
period of parole that is no longer than the period of
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incarceration."
Nearly all of District Attorney Krasner's policies "create a
presumption" for ADAs to follow and require approval from
District Attorney Krasner himself or a first assistant district
attorney for deviations from the policies.
District Attorney Krasner, in an April 2021 report published
by the District Attorney's Office (DAO) titled "Ending Mass
Supervision: Evaluating Reforms," wrote in his opening letter:
"I am proud of the work this office has done to make
Philadelphians, particularly Philadelphians of Color, freer from
unnecessary government intrusion, while keeping our communities
safe." In reality, the policies and practices of the
Philadelphia District Attorney's Office instituted under the
direction of District Attorney Krasner have led to catastrophic
consequences for the people of the City of Philadelphia.
According to the City Controller, spikes in gun violence and
homicides have dramatically impacted historically disadvantaged
neighborhoods, and those neighborhoods are "primarily low-income
with predominately black or African American residents." The
Philadelphia Police Department (PPD) reports that the number of
homicide victims has increased every year since 2016, more than
doubling from 2016 to 2021, with a year-over-year increase of
40% between 2019 and 2020. As of October 16, 2022, there have
already been 430 homicides in the City of Philadelphia in 2022.
As of October 17, 2022, reported trends gathered from the PPD's
"incident" data, which tracks the reporting of all crimes in
addition to homicides, shows a 12% increase in all reported
offenses, a 6% increase in violent offenses and a 21% increase
in property offenses.
While incidents of violent crime are increasing, prosecution
of crime by the Philadelphia District Attorney's Office has
decreased during this same period. In 2016, the Philadelphia
District Attorney's Office reported that only 30% of "all
offenses" resulted in a dismissal or withdrawal, but that number
spiked to 50% in 2019, 54% in 2020, 67% in 2021 and 65% to date
in 2022.
A similar trend is evident when filtering the data for
violent crimes, where, in 2016, the withdrawal and dismissed
violent crime cases accounted for 48% of all violent crime case
outcomes, but that percentage increased to 60% in 2019, to 68%
in 2020, to 70% in 2021 and to 66% in 2022 to date. Data from
the Pennsylvania Sentencing Commission relating to violations of
the Uniform Firearms Act (VUFA) evidences a similar jarring
trend. The Sentencing Commission reports that guilty
dispositions in the City of Philadelphia declined from 88% in
2015 to 66% in 2020, compared to a decline from 84% to 72% in
counties of the second class, with the driver of the decrease
being nolle pros dispositions. As compared to the Statewide data
and other county classes, in the City of Philadelphia the
percent of guilty verdicts has decreased significantly, while
the percent of nolle prossed cases has increased.
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Studies by the Delaware Valley Intelligence Center (DVIC)
attempted to provide "an explanation for the increase in
homicides and shootings in an effort to begin a conversation to
address the challenge at a strategic level," and, significantly,
the report notes:
"The rate of prosecution dismissal and withdrawal has been
increase [sic] substantially since 2015 under DA [Seth]
Williams, and has continued to increase after DA Krasner took
office. Furthermore, a closer examination of these dropped cases
indicates that more cases are dismissed/withdrawn at the
preliminary hearing state [sic] under DA Krasner than the actual
trial state []. This implies that, even when criminals are
caught with a gun, they are swiftly finding out they may not
receive as significant a consequence as they had historically.
Notably, the likelihood of being arrested is low to begin with.
This means that, criminals know that their likelihood of getting
caught with a gun is slim and, even if they get caught, they
feel that they can leave without severe (or any) consequences."
The DVIC conducted a "cursory examination" of
dismissed/withdrawn cases in 2018/2019 and "found 6 offenders
whose cases were dismissed (VUFA former convict charge) and got
later involved in shootings...2 of these shootings were fatal
and 4 out of these 6 offenders were gang members."
The DVIC studied the prosecution declination for narcotics,
retail theft and prostitution arrests from 2016 to 2018, and
concluded in its key findings that the percentage of all
declinations, not just narcotics, prostitution and retail theft,
increased "especially in 2018" to more than 7%, when it had been
just 2% or less between 2007 and 2015.
In September 2020, the Philadelphia City Council authorized
the Committee on Public Safety and the Special Committee on Gun
Violence Prevention to study gun violence in the city. This
study involved a collaboration between the Controller's Office,
Defender Association, Department of Public Health, District
Attorney's Office, First Judicial District, Managing Director's
Office, Pennsylvania Attorney General and PPD. The published
results, called the "100 Shooting Review Committee Report,"
discusses trends and general findings regarding shootings in the
City of Philadelphia. The published results showed the
following:
(1) The clearance rate (i.e., when an arrest was made or
a suspect that could not be arrested was identified) for
fatal shootings in 2020 was 37% and the rate for nonfatal
shootings was 18%.
(2) There has been a "marked increase" in the number of
people arrested for illegal gun possession without the
accusation of an additional offense, including a doubling in
arrests for illegal possession of a firearm without a license
since 2018.
(3) The initial and final bail amounts set by courts in
illegal possession of firearms cases declined between 2015
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and 2019 and increased in 2020 and 2021.
(4) Conviction rates in shooting cases declined between
2016 and 2020 from 96% to 80% in fatal shootings and from 69%
to 64% in nonfatal shootings.
(5) There is a long-term trend of a reduction in
conviction rates for illegal gun possession cases, dropping
from 65% in 2015 to 45% in 2020.
In August 2022, the Philadelphia Police Commissioner
indicated that her department is short-staffed by approximately
20%, or 1,300 officers, due to low morale, politics, increased
scrutiny and "uniquely stringent hiring requirements" during a
nationwide shortage.
Police Commissioner Danielle Outlaw stated, "The truth is the
homicides are not happening in a vacuum - there are those who
are determined to attack and kill their victims. While we are
making constant adjustments to mitigate this sickening reality,
our officers, simply put, just can't keep up by being everywhere
at all times." While the PPD may arrest a suspect for the
commission of a crime, the Philadelphia District Attorney's
Office is one of the few district attorney's offices in this
Commonwealth that reserves unto itself the authority to charge a
person for a criminal act.
In October 2022, following yet another act of violence
against police in the City of Philadelphia, Police Commissioner
Danielle Outlaw issued the following statement:
"We are tired of arresting the same suspects over and over
again, only to see them right back out on the street to continue
and sometimes escalate their criminal ways. We are tired of
having to send our officers into harm's way to serve warrants on
suspects who have no business being on the street in the first
place.
No - not everyone needs to be in jail. But when we repeatedly
see the extensive criminal histories of those we arrest for
violent crime, the question needs to be asked as to why they
were yet again back on the street and terrorizing our
communities.
I am beyond disgusted by this violence. Our entire department
is sickened by what is happening to the people that live, work,
and visit our city. Residents are tired of it. Business owners
are tired of it. Our children are tired of it.
We are long past 'enough is enough'."
Acts of violence, and particularly violent crimes committed
with firearms, have exacted a heavy toll on victims and their
families, with countless lives unnecessarily lost or
irretrievably broken, due to the increase of violent crime in
the City of Philadelphia. The foregoing acts constitute
"misbehavior in office" by District Attorney Krasner in that
such acts have substantially contributed to the increase in
crime in the City of Philadelphia, undermined confidence in the
criminal justice system, and betrayed the trust of the citizens
of Philadelphia and the Commonwealth.
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WHEREFORE, District Attorney Lawrence Samuel Krasner is
guilty of an impeachable offense warranting removal from office
and disqualification to hold any office of trust or profit under
this Commonwealth.
ARTICLE II:
Misbehavior In Office In the Nature of Obstruction
of House Select Committee Investigation
House Resolution 216 of 2022 established the House Select
Committee to Restore Law and Order pursuant to Rule 51 of the
General Operating Rules of the House. The select committee is
authorized and empowered "to investigate, review and make
finding and recommendations concerning risking rates of crime,
law enforcement and the enforcement of crime victim rights," in
the City of Philadelphia.
House Resolution 216 further charges the select committee to
make findings and recommendations, including, but not limited
to, the following:
(1) Determinations regarding the performance of public
officials empowered to enforce the law in the City of
Philadelphia, including the district attorney, and
recommendations for removal from office or other appropriate
discipline, including impeachment.
(2) Legislation or other legislative action relating to
policing, prosecution, sentencing and any other aspect of law
enforcement.
(3) Legislation or other legislative action relating to
ensuring the protection, enforcement and delivery of
appropriate services and compensation to crime victims.
(4) Legislation or other legislative action relating to
ensuring the appropriate expenditure of public funds intended
for the purpose of law enforcement, prosecutions or to
benefit crime victims.
(5) Other legislative action as the select committee
finds necessary to ensure appropriate enforcement of law and
order in the City of Philadelphia.
In pursuit of these obligations, the resolution empowers the
select committee chair to, among other things, "send for
individuals and papers and subpoena witnesses, documents,
including electronically stored information, and any other
materials under the hand and seal of the chair." The chair
issued subpoenas to a number of Philadelphia municipal offices,
including the Controller, the Mayor, the Police Department, the
Sheriff's Office, the Treasurer and the District Attorney's
Office. The subpoenas sought nonprivileged records necessary to
fulfill the select committee's obligations to the House of
Representatives pursuant to House Resolution 216.
While other municipal offices worked cooperatively with the
select committee to respond to the subpoenas issued to them,
District Attorney Krasner and his office chose instead to
obstruct the select committee's work at every turn. District
Attorney Krasner and his office asserted that the select
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committee was illegitimate and that its subpoenas served "no
valid legislative purpose, violating the separation of powers,
invading legal privileges, and seeking to deny the
constitutional rights of Philadelphia's citizens, especially
their democratic right to vote and choose their local leaders."
District Attorney Krasner asserted various claims that held
no basis in fact or law, including the following:
(1) District Attorneys are not subject to impeachment.
(2) Impeaching the District Attorney violates the
constitutional rights of the people who voted for him.
(3) The District Attorney committed no wrong, and
therefore was not required to comply with the committee
chair's subpoena.
(4) Impeachment of a public official requires a
conviction for a criminal act; and
District Attorney Krasner and his office refused to search
for or produce any documents in response to the subpoena.
Despite multiple attempts by counsel to the select committee
chair to bring District Attorney Krasner and his office into
compliance with the subpoenas, explaining on multiple occasions
that the select committee was seeking nonprivileged records and,
as it related to any record for which the District Attorney
believed were privileged, the District Attorney should follow
common practice in responding to a subpoena by providing a
privilege log to identify those records for which the District
Attorney asserts a privilege.
On September 12, 2022, after multiple exchanges between
counsel and a Request to Show Cause why the District Attorney
should not be held in contempt by the House, the select
committee issued an interim report pursuant to Rule 51 of the
General Operating Rules of the House of Representatives,
notifying the House of District Attorney Krasner's refusal to
comply with the subpoena and recommending that the House
consider contempt proceedings.
The House of Representatives adopted House Resolution 227 on
September 13, 2022, resolving that the House hold District
Attorney Krasner in contempt. House Resolution 227 was adopted
by a bipartisan vote of 162 to 38.
District Attorney Krasner filed an action in Commonwealth
Court on September 2, 2022, in which he raised the same
arguments that fail to have any meaningful basis in law or fact.
District Attorney Krasner and his office have since feigned
partial compliance with the subpoena, providing several public-
facing records obtained without the need to engage in any
legitimate effort to search for the records.
The select committee chair invited District Attorney Krasner
to testify before the select committee in executive session on
October 21, 2022. District Attorney Krasner refused to testify
in executive session, demanding a public hearing instead.
District Attorney Krasner then published a press release which
was misleading at best, mischaracterizing the invitation to
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District Attorney Krasner to testify in yet another moment of
grandstanding.
Given the District Attorney's rejection of the invitation to
testify in executive session, the select committee was compelled
to cancel the hearing.
District Attorney Krasner has, at every turn, obstructed the
efforts of the House Select Committee on Restoring Law and
Order. He has consistently raised specious claims without a good
faith basis in law or fact. Even after the House of
Representatives resolved to hold him in contempt, District
Attorney Krasner's efforts to comply with subpoenas issued by
the select committee chair fall far short of what can be
considered a reasonable good faith effort.
WHEREFORE, District Attorney Lawrence Samuel Krasner is
guilty of an impeachable offense warranting removal from office
and disqualification to hold any office of trust or profit under
this Commonwealth.
Article III:
Misbehavior In Office In the Nature of Violation of
the Rules of Professional Conduct and Code of
Judicial Conduct; specifically Rule 3.3 Candor Toward
the Tribunal, Rule 8.4 Professional Misconduct, and
Canon 2 of the Code of Judicial Conduct Impropriety
and Appearance of Impropriety in the Matter
of Robert Wharton v. Donald T. Vaughn
In the Federal habeas corpus proceeding in Robert Wharton v.
Donald T. Vaughn, Federal District Court Judge Goldberg issued a
memorandum order admonishing and sanctioning the District
Attorney's Office. Robert Wharton was convicted of murdering the
parents of survivor Lisa Hart-Newman, who was seven months old
at the time and was left to freeze to death with her deceased
parents by Mr. Wharton.
After his conviction, Wharton pursued a death penalty habeas
petition in the Federal district court. The District Attorney's
Office under prior administrations had opposed this petition.
In 2019, District Attorney Krasner's administration filed a
"Notice of Concession of Penalty Phase Relief," stating that it
would not seek a new death sentence, and, based on that
sentencing relief, the litigation and appeals could end. The
concession noted only that the decision to concede was made
"[f]ollowing review of this case by the Capital Case Review
Committee of the Philadelphia [District Attorney's Office],
communication with the victims' family, and notice to
[Wharton's] counsel."
Judge Goldberg undertook an independent analysis of the
merits of the claim and invited the Pennsylvania Office Attorney
General (OAG) to file an amicus brief in the case. In its
amicus, the OAG submitted additional facts that the District
Attorney's Office had not disclosed, including evidence of
prison misconducts, attempted escapes and Department of
Corrections concerns regarding "assaultiveness" and "escape" by
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Mr. Wharton.
The OAG concluded that "given the facts of this investigation
and aggravating sentencing factors present in this case, Wharton
could not establish a reasonable probability that the outcome of
his penalty phase death sentence would have been different if
the jury had heard evidence of his alleged 'positive' prison
adjustment."
The OAG further determined that members of the family,
including victim Ms. Hart-Newman, were not contacted and that
they opposed the concession by the District Attorney's Office.
After an evidentiary hearing, Judge Goldberg held as follows:
(1) The District Attorney's Office failed to advise the
court of significant anti-mitigation evidence, including that
Mr. Wharton had made an escape attempt at a court appearance.
(2) Two of the office's supervisors violated Federal
Rule of Civil Procedure 11(b)(3) "based upon that Office's
representations to this Court that lacked evidentiary support
and were not in any way formed after 'an inquiry reasonable
under the circumstances.'"
(3) Representations of communication with the victims'
family were "misleading," "false," and "yet another
representation to the Court made after an inquiry that was
not reasonable under the circumstances."
(4) The Law Division Supervisor, Assistant Supervisor
and District Attorney's Office violated Rule 11(b)(1), and
concluding that the violation was "sufficiently 'egregious'
and 'exceptional' under the circumstances to warrant
sanctions."
Judge Goldberg imposed nonmonetary sanctions on the District
Attorney's Office, requiring that separate written apologies be
sent to the victim, Lisa Hart-Newman, and the victim's family
members. Given the testimony of the two Law Division supervisors
that District Attorney Krasner approved and implemented internal
procedures that created the need for this sanction, and that the
District Attorney had the sole, ultimate authority to direct
that the misleading Notice of Concession be filed, therefore
"the apologies shall come from the District Attorney, Lawrence
Krasner, personally."
District Attorney Krasner has the sole authority to approve
court filings on behalf of Philadelphia District Attorney's
office. While in office, District Attorney Krasner directed,
approved and or permitted the filing of a "Notice of
Concession" and presentation of other pleadings and statements
in Federal court which contained materially false and or
misleading affirmative statements and purposeful omissions of
fact in violation of the Rules of Professional Conduct, Rule 3.3
(Candor Toward the Tribunal) and Rule 8.4 (Professional
Misconduct), and Code of Judicial Conduct, Canon 2 (Impropriety
and or Appearance of Impropriety).
WHEREFORE, District Attorney Lawrence Samuel Krasner is
guilty of an impeachable offense warranting removal from office
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and disqualification to hold any office of trust or profit under
this Commonwealth.
Article IV:
Misbehavior In Office In the Nature of Violation of
the Rules of Professional Conduct; specifically
Rule 3.3 Candor Toward the Tribunal, Rule 8.4
Professional Misconduct, and Canon 2 of the Code
of Judicial Conduct Impropriety and Appearance of
Impropriety in the matter of Commonwealth vs. Pownall
In his special concurrence in Commonwealth v. Pownall,
Supreme Court Justice Dougherty highlighted what he feared to be
an effort by the District Attorney's Office to deprive certain
defendants of a fair and speedy trial. Following the June 2017
incident in which former Philadelphia police officer Ryan
Pownall shot and killed David Jones, the District Attorney's
Office submitted the matter to an investigative grand jury. The
investigating grand jury issued a presentment recommending that
Pownall be charged with criminal homicide, possession of an
instrument of crime and recklessly endangering another person;
and
During trial, the prosecutor filed a motion in limine to
preclude the standard peace officer justification defense
instruction, based on the assertion that the instruction, which
largely tracked language of statute, violated Fourth Amendment
prohibition against unreasonable search and seizure. The motion
was denied and the prosecution appealed to the Superior Court,
which quashed the appeal as unauthorized. The Supreme Court
granted the prosecutor's request for allowance of appeal.
The Supreme Court ultimately denied the appeal, but the
special concurrence filed by Justice Dougherty illuminated
startling behavior by the District Attorney's Office. Justice
Dougherty held that the District Attorney's Office's actions
during grand jury process "implicate[s] a potential abuse" and
stated that "the presentment in this case is perhaps best
characterized as a 'foul blow.'" He referred to the grand jury
presentment, authored by the District Attorney's Office, as a
"gratuitous narrative."
Justice Dougherty also recognized that any abuse of the grand
jury could have been remedied by "Statutory safeguards embedded
in the process," such as a preliminary hearing. He went on to
say "What is troubling is the DAO's effort to ensure that would
not occur," i.e., their filing of a motion to bypass the
preliminary hearing.
Justice Dougherty found it "inexplicable" that, in presenting
a bypass motion to the Court of Common Pleas, the District
Attorney's Office failed to highlight the Investigating Grand
Jury Act section 4551(e), which directs that a defendant "shall"
be entitled to a preliminary hearing. He emphasized that the
District Attorney's Office "appear[ed] to have known [about that
requirement] at the time it filed its motion."
As it related to the prosecutor's motion in limine and
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interlocutory appeal, Justice Dougherty observed that the
District Attorney's Office's motion "presented only half the
relevant picture." He went on to say that "this type of advocacy
would be worrisome coming from any litigant," but coming from a
prosecutor, "is even more concerning, particularly in light of
the motion's timing...." He cited directly to Pennsylvania Rule
of Professional Conduct 3.3 regarding candor to the tribunal.
Further referencing ethical concerns, Justice Dougherty found
that the timing of the motion in limine, "[w]hen combined with
the other tactics highlighted throughout this concurrence,"
could lead to the conclusion that the decision to take "an
unauthorized interlocutory appeal was intended to deprive [Mr.
Pownall] of a fair and speedy trial." Justice Dougherty went on
to say:
Now, for the first time before this Court, the DAO finally
admits its true intent in all this was simply to use
Pownall's case as a vehicle to force judicial determination
on 'whether Section 508(a)(1) is facially unconstitutional.'
DAO's Reply Brief at 1; see id. at 6 (asserting Section 508's
applicability to [Pownall] is not the subject of this
appeal"). What's more, despite having assured the trial court
it was not trying 'to bar [Pownall] from a defense[.]' N.T.
11/25/2019 at 8, the DAO now boldly asserts it would be
appropriate for this Court to rewrite the law and
retroactively apply it to Pownall's case because he
supposedly 'had fair notice of his inability to rely on this
unconstitutional defense[.]' DAO's Brief at 10.
Justice Dougherty concluded, "Little that has happened in
this case up to this point reflects procedural justice. On the
contrary, the DAO's prosecution of Pownall appears to be "driven
by a win-at-all-cost office culture" that treats police officers
differently than other criminal defendants. DAO CONVICTION
INTEGRITY UNIT REPORT, OVERTURNING CONVICTIONS - AND AN ERA 2
(June 15, 2021) available at tinyurl.com/CIU report (last
visited July 19, 2022). This is the antithesis of what the law
expects of a prosecutor."
On remand, Common Pleas Court Judge McDermott said that there
were "so many things wrong" with the District Attorney's
Office's instructions to the investigating grand jury that it
warranted dismissing all charges against Mr. Pownall. After
hearing testimony from the assistant district attorneys who
handled the grand jury and preparation of the presentment, Judge
McDermott concluded that the District Attorney's Office failed
to provide the legal instructions to the grand jurors on the
definitions for homicide and information regarding the use-of-
force defense.
In her October 17, 2022, Statement of Findings of Fact and
Conclusions of Law, Judge McDermott stated, "The Commonwealth
made an intentional, deliberate choice not to inform the grand
jurors about the justification defense under Section 508. While
[the ADA] was aware of Section 508 and its applicability to the
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Defendant's case at the time of the Grand Jury proceedings, she
decided not to advise the Grand Jury about Section 508 after
consulting with other, more senior Assistant District
Attorneys."
As it related to Pownall's right to a preliminary hearing,
Judge McDermott wrote:
In its Motion to bypass the preliminary hearing, the
Commonwealth demonstrated a lack of candor to the Court by
misstating the law and providing Judge Coleman with incorrect
case law.
* * *
The Commonwealth was also disingenuous with the Court
when it asserted that it had good cause to bypass the
preliminary hearing under Pa.R.Crim.P. 565(a) because of the
complexity of the case, the large number of witnesses the
Commonwealth would have to call, the expense, and the delay
caused by a preliminary hearing. As a preliminary hearing was
not held in this case, the Defendant's due process rights
were violated and the Defendant suffered prejudice.
Judge McDermott told the District Attorney's Office that if
defense counsel had made the decisions that the District
Attorney's Office made, she would "declare them incompetent."
The District Attorney's Office's own expert report from Gregory
A. Warren, Ed.D., of American Law Enforcement Training and
Consulting concluded that, given all the facts presented to him,
Officer Pownall's "use of deadly force in this case was
justified." This expert report was withheld from Pownall by the
District Attorney's Office.
District Attorney Krasner has the sole authority to approve
court filings on behalf of Philadelphia District Attorney's
office. While in office District Attorney Krasner directed,
approved and or permitted the filing of motions, presentations
of other pleadings and statements to the Grand Jury and the
Court which intentionally omitted, concealed and or withheld
material facts and legal authority relevant to the judicial
proceedings in violation of the Rules of Professional Conduct,
Rule 3.3 (Candor Toward the Tribunal), Rule 8.4 (Professional
Misconduct) and Code of Judicial Conduct, Canon 2 (Impropriety
and or Appearance of Impropriety).
WHEREFORE, District Attorney Lawrence Samuel Krasner is
guilty of an impeachable offense warranting removal from office
and disqualification to hold any office of trust or profit under
this Commonwealth.
Article V:
Misbehavior In Office In the Nature of Violation of
the Rules of Professional Conduct and Code of
Judicial Conduct; specifically Rule 3.3 Candor to
Tribunal, Rule 8.4 Professional Misconduct, and Canon
2 of the Code of Judicial Conduct Impropriety and
Appearance of Impropriety in the matter In
re: Conflicts of Interest of Philadelphia District
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Attorney's Office
During sworn testimony, District Attorney Krasner withheld
material facts from the Supreme Court when he testified under
oath before the Supreme Court's Special Master. The Special
Master was appointed by the Supreme Court pursuant to its King's
Bench jurisdiction to investigate whether District Attorney
Krasner had a conflict of interest favoring the defendant and
appellant, Mumia Abu-Jamal, who had been convicted of first-
degree murder of Officer Daniel Faulkner. District Attorney
Krasner testified that he "never represented any advocacy
organization for Mumia Abu-Jamal."
While affirmatively stating he never represented an
"organization" which advocated for Mumia Abu-Jamal, District
Attorney Krasner omitted the fact that he had, in fact,
represented at least one pro-Mumia activist who was arrested for
seeking to intimidate the judge deciding Abu-Jamal's Post
Conviction Relief Act ("PCRA") Petition. That activist, who at
the time was the "Director" of the "Youth Action Coalition," was
arrested along-side local leaders of The International Concerned
Family and Friends of Mumia Abu-Jamal, all of whom were
protesting outside the home of Abu-Jamal's PCRA judge in an
effort to illegally influence the very proceedings at issue in
Mumia Abu-Jamal's nunc pro tunc appeal.
District Attorney Krasner represented this "Director," and
potentially other pro-Mumia activists, against charges for
violating a criminal statute that prohibits protesting outside
the homes of judicial officers to influence the outcome of cases
pending before the judicial officers. Yet, in testifying that he
"never represented any advocacy organization for Mumia Abu-
Jamal," District Attorney Krasner omitted these material facts,
providing a partial and misleading disclosure regarding his
connection to the effort to exonerate and free Mumia Abu-Jamal.
District Attorney Krasner's misleading disclosure was directly
relevant to the subject matter under investigation by the
Supreme Court in that he was concealing material facts
concerning his conflicts of interest in the Mumia Abu-Jamal
matter, an issue at the very heart of the Supreme Court's review
of the King's Bench Petition filed by the widow of Officer
Faulkner. District Attorney Krasner therefore violated Rules of
Professional Conduct, Rule 3.3 (Candor Toward the Tribunal),
Rule 8.4 (Professional Misconduct) and Code of Judicial Conduct,
Canon 2 (Impropriety and or Appearance of Impropriety).
WHEREFORE, District Attorney Lawrence Samuel Krasner is
guilty of an impeachable offense warranting removal from office
and disqualification to hold any office of trust or profit under
this Commonwealth.
Article VI:
Misbehavior in Office in Nature of
Violation of Victims Rights
Federal and State law provides for certain rights for victims
related to the prosecution and sentencing of the defendants who
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victimized them or their family members (18 U.S.C. § 3771 (b)(2)
(A) and section 201 of the act of November 24, 1998 (P.L.882,
No.111), known as the Crime Victims Act). Chief among the rights
provided to victims is the right to be kept informed at all
stages of the prosecution through clear, respectful and honest
communication and to be consulted with regard to sentencing.
District Attorney Krasner repeatedly violated, and allowed
Assistant District Attorneys under his supervision to violate,
the Federal and state victims' rights acts on multiple occasions
by specifically failing to timely contact victims, deliberately
misleading victims and or disregarding victim input and treating
victims with contempt and disrespect.
WHEREFORE, District Attorney Lawrence Samuel Krasner is
guilty of an impeachable offense warranting removal from office
and disqualification to hold any office of trust or profit under
this Commonwealth.
Article VII:
Misbehavior In Office In the Nature of Violation
of the Constitution of Pennsylvania By Usurpation
of the Legislative Function
Pursuant to Article II of the Constitution of Pennsylvania,
the legislative power is vested in the General Assembly.
District Attorney Krasner as an elected executive in the City of
Philadelphia has no authority to create, repeal or amend any
state law. Despite this clear separation of powers, District
Attorney Krasner has contravened the authority of the
legislature by refusing to prosecute specifically prohibited
conduct under state law. Rather than exercising his inherent
discretionary powers to review and determine charges on a case-
by-case basis, District Attorney Krasner, in his capacity as the
Commonwealth's Attorney in the City of Philadelphia,
unilaterally determined, directed and ensured that certain
crimes would no longer be prosecuted and were therefore de facto
legal.
These crimes include prostitution, theft and drug-related
offenses, among others. In particular, the de facto legalization
of prostitution by District Attorney Krasner has had a
devastating impact on women who are victims of sex trafficking
and the communities where they are trafficked. Refusing to
prosecute retail theft of property with less than a value of
$500, District Attorney Krasner has created an atmosphere of
lawlessness in Philadelphia, with the direct effect of causing
businesses to curtail activity or cease doing business
altogether in Philadelphia. District Attorney Krasner's refusal
to prosecute those caught driving under the influence of
marijuana, aside from contributing to the lawlessness in the
city, has created dangerous situations for the health, safety
and welfare of the people in Philadelphia. District Attorney
Krasner de facto legalizing such acts that the General Assembly
has determined to be illegal is a clear usurpation of
legislative powers in violation of the Constitution of
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Pennsylvania, and thus constitutes misbehavior in office.
WHEREFORE, District Attorney Lawrence Samuel Krasner is
guilty of an impeachable offense warranting removal from office
and disqualification to hold any office of trust or profit under
this Commonwealth.
The House of Representatives hereby reserves to itself the
right and ability to exhibit at any time after adoption of this
resolution further or more detailed Articles of Impeachment
against District Attorney Lawrence Samuel Krasner, to reply to
any answers that District Attorney Lawrence Samuel Krasner may
make to any Articles of Impeachment which are exhibited and to
offer proof at trial in the Senate in support of each and every
Article of Impeachment which shall be exhibited by them.
Upon the articles of impeachment against Lawrence Samuel
Krasner, Philadelphia District Attorney, being signed by the
Speaker of the House of Representatives, the Speaker shall
appoint a committee of three members, two from the majority
party and one from the minority party, to exhibit the same to
the Senate, and on behalf of the House of Representatives to
manage the trial thereof.
The expenses of the committee shall be paid by the Chief
Clerk from appropriation accounts under the Chief Clerk's
exclusive control and jurisdiction upon a written request
approved by the Speaker of the House of Representatives, the
Majority Leader of the House of Representatives or the Minority
Leader of the House of Representatives.
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See A05891 in
the context
of HR0240