Philadelphia District Attorney Larry Krasner is perhaps the nation's most prominent "progressive prosecutors." Among his priorities as Philly's DA has been to facilitate sentence reductions and the undoing of criminal prosecutions where there are allegations of prosecutorial misconduct or actual innocence claims. The zeal with which Krasner's office has pursued these aims has raised eyebrows, however.

In June, the Pennsylvania Supreme Court rebuked Krasner's office for withholding evidence and violating its duty of candor to the court when conceding that a death row inmate was entitled to a new trial, and that these failings were not an isolated occurrence. Rather, according to Justice  "There have been numerous instances of untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings" by the office's Conviction Integrity Unit. Accordingly, the court ordered that the Pennsylvania Attorney General's office would receive notice and a right to intervene in any case in which Krasner's office offered concessions to those seeking post-conviction relief.

Yesterday, federal district court judge Paul Diamond concluded that the ethical and legal problems in Krasner's office may be even more serious that the Pennsylvania Supreme Court had found. In a blistering order, he concluded that Krasner and one of his deputies, Matthew Stiegler, may have committed criminal misconduct in a case in which the office sought to undo a criminal conviction, despite a weak legal basis for doing so. Among other things, Judge Diamond accused them of dishonesty to the court, efforts to evade discovery of their conduct, and conspiring to falsely blame a junior attorney for errors in a legal filing for which Stiegler was responsible.

Judge Diamond disqualified Krasner and Stiegler from further work on the case due to their conflict of interest and, more notably, referred them to the U.S. Attorney's office for investigation and potential prosecution.

From Judge Diamond's opinion:

The evidence before me and the facts I have found reveal more than a disabling conflict. I refer here not to Mr. Krasner's use of another's email address, his concern that documents written to him might be discoverable, his repeated insistence that there should be no hearing in this Court, or his almost irrational refusal to refer Johnson to the OAG even though he recently made such a referral. Although that conduct might reveal that Mr. Krasner is aware that he might have acted improperly, it is not itself criminal conduct.

The credible evidence is tantamount to a prima facie showing of conduct that may constitute false statements, false declarations made under oath, perjury, obstruction of justice, and conspiracy. See 18 U.S.C. § 1001 (false statements); id. § 1623 (false declaration); id. § 1621 (perjury); id. § 1503 (obstruction of justice); id. § 371 (conspiracy).

Three days after Mason resigned, Stiegler told Ernst that Mason "had purposefully inserted the false facts into the response," that "this was one hundred percent her fault, zero percent his fault," and that the DAO should tell me that her other cases contained mistakes too, so that I would "view this as one rogue ADA." Stiegler made the same pitch to Napiorski, who understood him to want Mason "paint[ed] . . . as a rogue actor." He presented it to Mr. Krasner, who deemed it a "really good idea" and urged [four other attorneys in the office] to implement it. Even after they refused, Stiegler repeated it in Mr. Krasner's presence.  Yet Stiegler testified before me that Mason was "one of our strongest ADAs in the [U]nit." Stiegler was thus urging the DAO to present the Court with a false account to shield himself.

Moreover, at the July 17 hearing, Stiegler acknowledged that he had spoken with Mr. Krasner about this case "possibly twice." When I asked what they discussed he answered:

What I remember about that conversation, Your Honor, is that he was interested in my input about the office's handling, and that what I was saying to him was that my view was that we had information about what had happened here, that this was—I think I said something to the effect of this was not a who done it, that we had information about how these errors had occurred and that we should act—and that information primarily was the drafts that had resulted in the ultimate filing. And that the office should make a decision on the basis of the information that it had, if there were errors that had occurred, it should acknowledge those errors and go forward.

My position was that the errors that occurred here were not intentional, not an effort to deceive the Court, and that the information that the office had showed that and that that's how I believed that the office should proceed.

It is disturbing that Stiegler omitted that he urged Mr. Krasner to blame Mason alone for the Concession's errors and paint her as a "rogue ADA."

Moreover, Stiegler's hearing testimony that the errors "were not intentional" cannot be squared with what he told Ernst on June 5: that Mason "had purposefully inserted the false facts." These material omissions and falsehoods may well amount to perjury.  Moreover, in urging that others lie to me, Stiegler might be liable for obstruction of justice.

Mr. Krasner's actions are more troubling. He did not simply learn of the Stiegler proposal; he urged the Law Division supervisors—who serve at Mr. Krasner's pleasure—to implement it and to present a false narrative to the Court.  Mr. Krasner directed that the DAO stay involved in Johnson "to protect the office"—which Napiorski believed also meant protecting Mr. Krasner himself—and that the Four "not do any investigation" "[Mr. Krasner] didn't want people poking around in what occurred." He thus sought to direct the very lawyers obligated by law to correct the Concession's errors to do just the opposite. Even worse, when told that the Four believed they had to alert me, Mr. Krasner responded that "there would be consequences for Ms. Ernst if she alerted the Court to the conflict issue," and that there would be consequences "if anyone did." Both Wildberger and Napiorski understood Mr. Krasner to be threatening their jobs. Lin confirmed this when she told Napiorski that their "jobs may be salvageable." Mr. Krasner's threat thus could amount to obstruction of justice.

Moreover, as Ernst testified, she could not understand why Mr. Krasner took these actions. If he or Stiegler did so to conceal that he had a hand in making the Concession Brief's misrepresentations intentionally, this, too, could be obstruction of justice.

Finally, I have also found that Mr. Krasner and Stiegler worked together to try to convince [four other attorneys in the  office] to urge the Court to accept a false narrative. This might amount to criminal conspiracy.

I have thus reluctantly concluded that Philadelphia's highest law enforcement official and one of his top assistants may have violated the law. In these circumstances, with the issuance of this Memorandum, I refer the DAO, Mr. Krasner, and Stiegler to this District's United States Attorney's Office for investigation and other appropriate action.

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