Have Philly Democrats Finally Had Their Fill of Larry Krasner?

In 2017, a Philadelphia police officer shot an armed felon who was attempting to escape during a traffic stop. Philadelphia district attorney Larry Krasner charged the police officer with murder. The officer intended to assert that deadly force was justified under Pennsylvania law, which permits such force either to prevent death or serious bodily injury, or when necessary to stop someone attempting to escape while in possession of a deadly weapon. Krasner didn’t like the “escape” portion of the law, so he engaged in a series of maneuvers in an attempt to change the law for the police officer’s trial, well after the conduct in question. Every court that looked at the issue disagreed with Krasner – most recently, the Pennsylvania Supreme Court. In a biting concurrence, a Democratic justice ripped into Krasner’s tactics and said that it was necessary to “pull back the curtain” on the district attorney’s conduct.

Under Pennsylvania law, deadly force can be used by a police officer under two circumstances relevant here. First, a police officer may use such force “when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person.” Second, deadly force is permitted where “such force is necessary to prevent the arrest from being defeated by resistance or escape [and] the person to be arrested … is attempting to escape and possesses a deadly weapon.” With Jones both pulling his illegal gun during the arrest and then attempting to escape with the gun, it was expected that the Officer Pownall would rely on one or both of these justifications if he was charged with murder.

Krasner did not like Pennsylvania’s law on deadly force. He flatly stated that “the law in Pennsylvania is not fair.” So he executed a strategy that has been categorized by Pennsylvania Supreme Court Justice Kevin Dougherty as “a win-at-all-cost office culture … that treats police officers differently than other criminal defendants.” Justice Dougherty pointed to three specific aspects of the case as evidence of this charge.

First, Justice Dougherty described how Krasner’s office misused grand jury proceedings. In an ordinary case, the police arrest a defendant, filing a criminal complaint that briefly states the facts and charges; the defendant gets to challenge the charges initially at a preliminary hearing. Instead of this procedure, Krasner initiated a grand jury investigation of the case. The district attorney’s office then had the grand jurors issue what is called a grand jury presentment, in which it recommends certain charges. In this case, the grand jury recommended murder charges and some other charges as well. However, there was a major problem, as highlighted by Justice Dougherty: the district attorney’s office never provided the grand jurors with the legal definition of murder or an explanation of Pennsylvania law on justifiable use of deadly force by police officers. That is not a misprint: Krasner’s office had a grand jury recommend charging a police officer with murder while never telling the grand jurors what the law was. Justice Dougherty characterized this conduct as a “foul blow.”

Next, Justice Dougherty pointed out that Krasner’s office effectively deprived the police officer of a preliminary hearing to challenge the charges. Krasner achieved this feat by filing a motion after the grand jury presentment, requesting and receiving permission to file a criminal information against the police officer without a preliminary hearing based on the alleged complexity of the case. Justice Dougherty explained that the district attorney’s office could have achieved the same ends by requesting that the grand jury return a formal indictment – but doing that might have exposed how Krasner had never informed the grand jurors about the law.

Justice Dougherty’s final criticism is the simplest but also the most telling. After Krasner’s office charged Pownall, Krasner still had to deal with that pesky Pennsylvania law justifying deadly force by a police officer. Instead of trying the case and perhaps requesting that the legislature change the law for future cases, Krasner waited until the case was about to go to trial, then demanded that the trial judge not read the jurors the actual Pennsylvania law on justifiable use of deadly force by the police. When the trial court immediately denied this motion, Krasner forced what is called an interlocutory appeal, an appeal that delays the actual trial while higher courts decide the issue. The intermediate appellate court denied Krasner’s bizarre request, and the Pennsylvania Supreme Court recently did the same in a straightforward majority opinion. 

In his special concurrence, Justice Dougherty spelled out in plain terms that Krasner’s conduct had effectively delayed the trial of the police officer for more than four years, leaving the officer in a public limbo and denying him the right to a speedy trial. And more importantly, Krasner’s office was attempting to “rewrite the law” regarding deadly force and “retroactively apply it to Pownall’s case.” Simply put, Krasner did not like the rules, so he tried to change them in the middle of the game for his own benefit, without consideration for the constitutional rights of the police officer whom his office charged with murder. Justice Dougherty concluded with a stinging remark: “This is the antithesis of what the law expects of a prosecutor.”

Perhaps nobody will be surprised that Krasner expressed contempt for the law, police officers, or the courts. Krasner has been described as the “Philly cops’ worst enemy.” Both state and federal judges previously have called into question the credibility and integrity of Krasner’s office in murder cases.

The most compelling aspect of Justice Dougherty’s opinion, in addition to the starkness of its language, is the identity of the messenger. Justice Dougherty is part of the Philadelphia Democratic machine, the brother of longtime party powerhouse and labor leader John “Johnny Doc” Dougherty. Justice Dougherty grew up amid the hard knocks and political shenanigans of Philadelphia politics. If he is willing to call out Krasner’s conduct in such compelling terms, does this mean that even Democrats, union members, and progressives in Philadelphia finally have had their fill of Krasner and his antics? Time will tell.

Tom Hogan has served as a federal prosecutor, local prosecutor, and elected district attorney.  He currently is in private practice.