The Volokh Conspiracy
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The Third Circuit Affirms Sanctions Against the Philadelphia D.A.'s Office for Failing to Confer with Crime Victims
The Circuit concludes that the district court appropriately sanctioned the D.A.'s Office for making misleading statements about whether it had conferred with a crime victim's family.
On Friday, the Third Circuit unanimously affirmed a district court sanctions order against the Philadelphia District Attorney's Office for failing to protect crime victims' rights. The opinion is an important reminder that prosecutors may not ignore crime victims' rights and should confer with them during criminal prosecutions.
I previously blogged about the case here. As recounted in that post, the case arose from brutal murders committed by Robert Wharton and his accomplice. Wharton 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. At first, Wharton adjusted to prison poorly. He tried to escape while leaving the courtroom in an unrelated robbery case. To stop him, an officer had to shoot him twice. The Office prosecuted him for that attempted escape, and he pleaded guilty.
As the Third Circuit recounted, over the next six years, Wharton had a mixed prison record. Some of his behavior was good. But he also racked up six prison misconducts, including two serious ones for having makeshift handcuff keys.
In 1992, after Wharton's first sentence was reversed for a jury-instruction error, a jury sentenced him to death again. After state courts rejected his challenges, Wharton filed a federal habeas petition, which the district court denied.
In 2018, the Third Circuit remanded to the district court on the single issue of whether Wharton had adjusted well to prison—and whether Wharton's counsel was ineffective in failing to present such an argument to the jury. The Circuit ordered the district court to hold an evidentiary hearing on the subject. The Circuit specified that the hearing needed to cover not only "the mitigation evidence that went unmentioned" but also "the anti-mitigation evidence that the Commonwealth would have presented [in] rebut[tal]."
But less than a month later, before the district court could hold that hearing, the Philadelphia D.A.'s Office filed a notice of concession. In that notice, the Office asserted that it had decided to concede relief "[f]ollowing review of this case by the Capital Case Review Committee…, communication with the victims' family, and notice to [Wharton's] counsel." Yet it did not explain its about-face.
The district court did not accept the concession. Instead, it asked the parties to brief whether it could grant relief without holding the evidentiary hearing that the Third Circuit had ordered. In response, the D.A.'s Office filed a brief asserting that it had "carefully reviewed the facts and law and determined that Wharton's ineffectiveness claim fulfills the criteria articulated in Strickland v. Washington, 466 U.S. 668 (1984)." Yet the Office did not reveal Wharton's escape attempt or prison misconducts. As the district court observed, its brief said nothing about seeking facts beyond the record or investigating Wharton's prison adjustment.
As the Third Circuit further explained, the district undertook further investigation:
Dissatisfied with the Office's explanation, the District Court appointed the Pennsylvania Attorney General as amicus curiae to investigate Wharton's adjustment to prison. The Attorney General disclosed to the court what the Office had not—Wharton's escape attempt and the details of his prison misconducts. The Attorney General also provided evidence that the Office's communication with the victims' family had been minimal. Upon learning these previously undisclosed facts, the court scheduled an evidentiary hearing.
The hearing revealed that the Office's statements about its investigation into Wharton's prison adjustment were misleading. Paul George, who with Nancy Winkelman litigated this habeas case and supervised the Office's Law Division, admitted that the Office was aware of the escape attempt. Plus, the Office could have found the escape attempt simply by looking up Wharton's criminal record.
The hearing also revealed that the Office's statements about contacting the victims' family were misleading. Those statements implied "that the victims' family had agreed" with the Office's about-face. Yet the Office had notified only [murder victim] Bradley's brother, but not the sole surviving victim (Lisa) or any other family members. And though it did contact Bradley's brother, it did not tell him clearly that it planned to concede the death penalty. Later, when the Attorney General explained the situation to the family members, most of them "were vehemently opposed to" the Office's concession.
The district court held a further evidentiary hearing on the D.A.'s Office's apparent misrepresentations. And following that hearing, the district court reprimanded the Office and supervisors George and Winkelman. It found that they had violated Rule 11(b)(3) of the Federal Rules of Civil Procedure because the Office had made "representations to th[e] Court that lacked evidentiary support and were not in any way formed after 'an inquiry reasonable under the circumstances.'" The district court explained that the Office would have discovered Wharton's escape attempt simply by reviewing his criminal record. So, if the Office had truly been unaware of the prior escape attempt, it had no reasonable basis to say it had reviewed the facts carefully. As another example, the Office had not contacted most members of the victims' family. And, in its minimal contact with one family member, the Office had not explained the situation clearly. So its statement about communicating with the victims' family was false and not made after a reasonable inquiry. Both misstatements, the district court held, violated the lawyers' duty of candor to the court.
The district court imposed two mild sanctions. First, it ordered District Attorney Larry Krasner to apologize in writing to four of the victims' family members for misrepresenting the Office's communication with them. Second, it ordered the Office, when it seeks to concede federal habeas cases in the future, to give "a full, balanced explanation" of the facts.
The Office and the two sanctioned attorneys appealled to the Third Circuit. The victims' family filed an amicus brief supporting the district court's sanctions, written pro bono by Allyson Ho and her colleagues at Gibson Dunn, along with the National Crime Victim's Law Institute and me.
On Friday, the Third Circuit affirmed the sanctions. The Circuit agreed with the district court that the appellants had falsely claimed that they had "carefully reviewed the facts and the law" in conceding Wharton's ineffective assistance of counsel claim. And the Circuit agreed that the district court properly sanctioned appellants for misleadingly claiming that the Office had "communicat[ed] with the victims' family." The Circuit explained:
Though literally true, that statement was misleading. Our opinion remanding this case identified Lisa Hart by name as the sole survivor of Wharton's crimes. Any reasonable reader would expect, as Judge Goldberg did, that this phrasing meant Lisa had been contacted. Yet she was not. And any reasonable reader would expect, as Judge Goldberg did, that the Office had solicited the views of other family members. Yet the Office had not contacted anyone besides Bradley's brother. Plus, when it reached him, it never told him clearly that it was planning to concede the death penalty. As Winkelman admitted at the hearing, the Office's failure to reach out to Lisa was a "mistake."
The District Court found that the Office made the statement without first inquiring reasonably and confirming that someone had contacted the victims' family, especially Lisa. Because "the reasonably foreseeable effect of [their] representations to the [District] [C]ourt was to mislead the court," their negligent misstatement violated Rule 11.
The Circuit concluded with a reminder that attorneys are officers of the court with important duties of candor:
As officers of the court, lawyers must not mislead courts. So before they state facts, they must investigate reasonably. In this case, the Philadelphia District Attorney's Office and two of its supervisors did not live up to that duty. So the District Court properly ordered District Attorney Larry Krasner to apologize to the murder victims' family and be more forthcoming in the future. Because those mild sanctions were justified and reasonable, we will affirm.
In a separate opinion, the Third Circuit also denied Wharton's underlying habeas petition that produced the issue. The Circuit unanimously concluded that there was not a reasonable probability that if the jury had seen Wharton's prison record the outcome of the case would have changed.
For nearly forty years, Lisa and her family have awaited justice. I hope that Friday's opinions will be step towards bringing the case to a final conclusion. And the opinions serve as a reminder to prosecutors of the importance of conferring with crime victims and their families in the course of criminal prosecutions.
