Should the Philadelphia D.A.'s Office Have Been Sanctioned for Failing to Protect Crime Victims' Rights?

My amicus brief to the Third Circuit argues that the district court appropriately sanctioned the Philadelphia D.A.'s Office for making misleading representations about whether they had conferred with a crime victims' family.

Yesterday, I filed an amicus brief in the Third Circuit, arguing for affirmance of a sanctions order against the Philadelphia District Attorney's Office for failing to protect crime victims' rights. The D.A.'s Office told a federal district court that it had been in communication with the victims' family before deciding to confess error in a capital case—a representation that the district court found was misleading. After the district court sanctioned the D.A.'s Office, the Office appealed to the Third Circuit. Yesterday's brief—filed on behalf of the family by attorneys from Gibson Dunn, the National Crime Victims' Law Institute, and me—argues that the Third Circuit should affirm the district court's sanctions order.

The brief recounts facts tracking back to January of 1984. In that month, Robert Wharton and his accomplice brutally murdered Bradley and Ferne Hart in their own home and left their seven-month-old baby daughter, Lisa, to die—the horrific climax of a months-long campaign of terror against the family.  After Wharton strangled and drowned Ferne in a bathtub, and his accomplice stomped and strangled Bradley in the basement, Wharton sadistically shut off the home's heat in the dead of winter, leaving baby Lisa to freeze and starve.  Miraculously, she survived—discovered three days later among the carnage when Bradley's father visited the home and heard her cries.

A jury found Wharton guilty of two counts of first-degree murder in 1985 and returned two death sentences.  After a reviewing court vacated his sentences on a technicality, a second jury again determined that he should be sentenced to death in 1992.

For nearly forty years, Lisa and her family have awaited justice.  Wharton, however, has dragged out the proceedings at every step, filing numerous baseless claims for post-conviction relief in state and federal court.  His sole remaining claim, which he brought on federal habeas, is that his lawyer at his 1992 penalty hearing was ineffective because he failed to present "mitigation" evidence of Wharton's supposedly positive adjustment to prison. (On that point, it is notable that Wharton had attempted to escape twice, and in one attempt provoked gunshots as officers sought apprehend him.)

The interminable delay in holding Wharton accountable for his crimes has been agonizing enough for Lisa and her family. But the recent actions of the Philadelphia District Attorney's Office have only compounded their suffering. Despite zealously opposing Wharton's efforts to overturn his conviction and death sentence for over three decades, the D.A.'s Office, with no explanation, suddenly announced that it would no longer contest the only remaining penalty-phase claim. The D.A.'s office then led the district court to believe that the Hart family supported this about-face—representing to the court that the D.A.'s Office decided to concede Wharton's claim only "[f]ollowing . . . communication with the victims' family."

That statement was deeply misleading.  As the district court found, "the only communication was to inform a single family member that the D.A.'s office was considering conceding.  None of the family members supported the decision to concede, and several expressed shock and indignation that the District Attorney's Office had suggested otherwise."  Lisa—the sole survivor of Wharton's heinous crimes—was "confused," "hurt," "outraged," and "had no idea what was going on." Bradley's sister, Patrice Carr, found it "unbearably painful and shocking" to learn that the concession was "even a consideration." And Bradley's brother, Dr. Tony Hart, was "taken [a]back" when he learned the truth. Contrary to what the D.A.'s Office led the district court to believe, the family "is of one accord in asking . . . that the District Attorney do all he can to maintain the death penalty in this case."

In response to that shocking misrepresentation—which impeded the district's court ability to comply with its own statutory obligation to ensure crime victims are treated with dignity and respect—the court imposed the mildest of sanctions. It merely ordered the District Attorney to apologize to the family in writing, and the D.A.'s Office to present "a full, balanced explanation of facts" in future habeas proceedings. Yet the D.A.'s Office has appealed the court's order and contends that it discharged its legal and ethical obligations all along. 

The amicus brief argues that the Third Circuit should affirm the district court's sanctions order and, in so doing, acknowledge the harm inflicted on a family that has already suffered more than enough. In the conclusion to our brief, we explain why protecting crime victims' rights in this case is important:

Congress enacted the Crime Victims Rights Act because it found that, in case after case, victims "were kept in the dark by prosecutors to[o] busy to care . . . and by a court system that simply did not have a place for them." 150 Cong. Rec. at 7296 (Sen. Feinstein). Providing incomplete and misleading information to one family member, failing even to contact other victims—including a direct survivor of the crime—and then misleading a district court into believing those victims supported a decision they weren't even aware of and vehemently disagree with is the polar opposite of treating victims "with fairness and with respect." 18 U.S.C. § 3771(a)(8).

Upholding the modest sanctions imposed by the district court would take an important step in fulfilling the Act's purpose of "correct[ing] . . . the legacy of the poor treatment of crime victims in the criminal process," 150 Cong. Rec. at 7303 (Sen. Feinstein), and preventing them from being "victimized a second time . . . by our criminal justice system." Id. at 7298 (Sen. Kyl). While Lisa, Patrice, and Tony have bravely forged ahead despite their suffering, the conduct of the DA's office in this case has only increased their suffering—essentially telling them "you don't matter."

Counteracting that false and degrading message is precisely why state and federal victims' rights statutes were adopted. The district court's recognition of the fundamental rights of Lisa, Patrice, and Tony—and its modest efforts to protect those rights—is the least the justice system can do.

The amicus brief was filed on behalf of Lisa Newman, Patrice Carr, and Dr. David "Tony" Antony Hart—family members of the murder victims—by Allyson Ho, Brad Hubbard, and other Gibson Dunn lawyers; Meg Garvin at the National Crime Victims Law Institute; and me. The Philadelphia D.A.'s Office's appeal brief is found here, along with appendix of relevant materials. The Third Circuit has also asked for a defense of the judgment below, which is found here.

The case is currently pending before the Third Circuit, following a district court ruling that there was no reason to set aside Wharton's death sentence. The district court explained that there was no sound reason for accepting the D.A.'s Office's confession of error concerning Wharton's purported "positive" adjustment in prison, because that adjustment was "marred by multiple efforts to escape." The district court found it "difficult to fathom how any juror would have found Wharton's positive[-]adjustment evidence more significant than [his] premeditated escape from a City Hall courtroom followed by two subsequent misconducts, received days apart, for possessing a makeshift handcuff key and other implements of escape."

In addition, the district court found that the D.A.'s confession of error on this point—like its misrepresentations about contacting the victims' family—also involved a breach of the D.A.'s Office's duty of candor. The district court concluded that the D.A.'s Office had improperly withheld information about Wharton's escape, which would be "crucial information to provide to a judge who had been asked to vacate a death[-]penalty sentence" imposed thirty years ago for a horrific crime. This omission, the Court concluded, contradicted the Office's representation that it had "carefully reviewed the facts and law" in determining that Wharton's claim had merit.