Federal judge orders Philly prosecutors to send written apologies to victim family members for poor behavior in capital habeas case

This ABA Journal article, headlined "Federal judge orders district attorney to write apology letters to families of murder victims," reports on a notable federal court order from earlier this week. Here are the highlights:

A federal judge has ordered Philadelphia District Attorney Larry Krasner to write apology letters to the families of the victims of a double murder after concluding that supervisors in his office made misleading statements to the court.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania scolded prosecutors for being “vague” and “unclear” about whether they consulted with victims’ families before supporting efforts to overturn the death penalty in the case against Robert Wharton.  In reality, prosecutors communicated with just one person — the family member who survived the attack, Lisa Hart-Newman.  The district attorney’s office had written in a court notice that it decided to concede an ineffective counsel claim following a review by its capital case review committee and “communication with the victims’ family,” wrote Goldberg in a Sept. 12 opinion.

Wharton was convicted for killing Bradley and Ferne Hart in 1984 in retaliation for failure to pay for construction work.  Working with an accomplice, he then shut off the heat to the couple’s home, leaving their 7-month-old daughter, Lisa, “to fend for herself,” according to a 2018 opinion by the 3rd U.S. Circuit Court of Appeals at Philadelphia.  A relative found the baby still alive three days later.

The 3rd Circuit ordered the death penalty review to determine whether Wharton’s trial lawyer was ineffective by failing to present evidence about the defendant’s positive adjustment to prison.  The district attorney’s office agreed that Wharton’s Sixth Amendment rights had been violated and asserted that a full review by the judge was unnecessary, according to Goldberg’s opinion.  But precedent “plainly holds that a jury’s death sentence verdict cannot be undone until all facts are placed on the table so that a fully informed judge, not the district attorney, can make the decision as to whether a decades-old verdict should be set aside,” Goldberg said.

Although the 3rd Circuit required a review of evidence in favor and in opposition to the death penalty, the district attorney’s office failed to advise the court about Wharton’s “violent escape from a city hall courtroom” and subsequent escape conviction, Goldberg said.  That’s “possibly the worst type of prison adjustment,” he observed.

Department supervisors on the capital case review committee said they recommended conceding Wharton’s habeas petition without knowing about the escape attempt. But that admission “was curiously contrary” to an assistant supervisor’s assertion in court that the office was aware of Wharton’s escape conviction, Goldberg said.... Goldberg said the district attorney’s office “continues to misunderstand its role” in collateral review proceedings in death penalty cases.  “If the district attorney’s office files its concession on a misleading presentation of the facts, it attempts to misuse the court’s power,” Goldberg said.

Goldberg directed Krasner to send separate written apologies to Hart-Newman and three family members for representing that the office had communicated with the victims’ family.

The full and interesting 28-page ruling in Wharton v. Vaughn is available at this link.