PHILADELPHIA – On October 15, 2019, United States Attorney William M. McSwain was invited to speak at the Quarterly Luncheon of the Executive Board of the Citizens’ Crime Commission of the Greater Delaware Valley. U.S. Attorney McSwain addressed the current state of criminal justice in Philadelphia, highlighting in particular the defense-oriented litigation tactics on display in several cases handled by the Philadelphia District Attorney’s Office during Larry Krasner’s tenure. Among the cases analyzed, U.S. Attorney McSwain dissected Krasner’s litigation maneuvers in the latest Mumia Abu-Jamal appeal and explained how Krasner is attempting to position the case to free the unrepentant cop killer.
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Thank you, John [Appledorn], for that introduction and for your work as President of the Citizens’ Crime Commission of the Delaware Valley. And thank you for inviting me to speak to this distinguished group of law enforcement and citizens who appreciate the sacrifices that those serving in law enforcement make every day. My heart feels good to be among a group such as this. It is an honor to be here and to support this group’s mission: to improve the quality of life of citizens in the Delaware Valley with ongoing outreach, community programs, and the latest safety and security initiatives. It is a worthy mission, and one that my Office shares.
As U.S. Attorney, I have the privilege of working with thousands of dedicated police officers, detectives, case agents, and prosecutors across the nine counties of the Eastern District of Pennsylvania. Working side-by-side with those who are willing to sacrifice for the greater good is one of the best things about my job. I felt that way when I was an Assistant U.S. Attorney earlier in my career, and it holds true today.
The brave men and women in law enforcement in the Eastern District of Pennsylvania serve and protect a broad swath of communities. Our District is comprised of large metropolitan cities, rural areas, and every type of community in between, and the issues that the police encounter in the District are as diverse as the communities they serve. But law enforcement officers are cut from the same cloth – they are honorable, courageous, selfless, and resilient. These values bind them together, serve as an inspiration to me, and provide a source of strength when the going gets tough.
Unfortunately for those brave men and women, times are tough for law enforcement these days – in Philadelphia and beyond. For one thing, police work is not getting any safer. Gun violence continues to plague the City; just this past weekend, there were six different reported shooting incidents. Two men were killed, and a total of 13 people were injured in the span of only two days. Through October 12, the number of homicide victims this year has reached 266, which is an increase over the number of victims during the same time frame last year, which was already a terrible year.
Times are also tough for law enforcement because their jobs are made all the more difficult by a culture of disrespect for law enforcement championed by the words and actions of Philadelphia District Attorney Larry Krasner, or as he refers to himself, the City’s “public defender with power.” Or perhaps we should refer to him as Uncle Larry, which is the nickname that the City’s violent criminals have affectionately bestowed upon him. Uncle Larry’s antics are especially dangerous because he is a prosecutor – and as such, he’s supposed to be on the side of law enforcement and community safety. He took an oath to uphold the rule of law, to protect public safety, and to represent victims and the people of this City in our criminal justice system. Instead, through the policies he has put in place and through his various courtroom maneuvers, he has done just the opposite. This reality often makes Krasner as dangerous as the criminals that he’s looking out for.
This conclusion – that Krasner’s policies endanger the public – is buttressed by the data collected and displayed on his “Public Data Dashboard,” a website Krasner announced a few weeks ago that tallies up information on key metrics that include the number of incidents, arrests, charges, case outcomes, and “years of future incarceration imposed.” The data from the dashboard serves as a scoreboard of sorts – one that collects wins for criminals and losses for the law-abiding public.
The dashboard touts some stunning statistics. To highlight just a few that compare this year to five years ago: (1) the DA’s Office has charged 26 percent fewer cases this year than through the same date in 2014; (2) it has charged 268 people for retail theft this year, down from 1,900 five years ago; (3) the conviction rate for homicides is down as compared to 2014; and (4) in a City full of gun violence, the number of illegal gun possession cases diverted into the Accelerated Rehabilitation Disposition program (which amounts to a free first offense) has skyrocketed – there were 10 in 2014 and 78 in 2018. None of this is good news for law enforcement, for the rule of law, or for the communities we serve.
The effect of Krasner’s policies and his culture of disrespect were on full display in front of a national audience this past August when Maurice Hill, a convicted felon with a long rap sheet, opened fire on Philadelphia police officers as they attempted to execute a search warrant. This confrontation left six officers wounded and a neighborhood traumatized. It is a miracle that the officers survived the attack and that the chaos ended with Maurice Hill in custody.
The Maurice Hill incident and these stunning statistics raise some obvious questions: Are criminals emboldened by Larry Krasner? And do some segments of the community take their cues from the District Attorney’s slander against law enforcement and then pile on with even more disrespect? The answers are: yes and yes. When the City’s top local prosecutor talks about the police as if they are the enemy, criminals take heart and the community takes note. And the rule of law takes a huge hit.
Which brings me to the message I want to deliver to you today – it’s reflected in the title of my remarks and it’s the same message that I’ve delivered to Larry Krasner and others who feed the culture of disrespect: Enough of this nonsense already. Since the day I was sworn in as U.S. Attorney, it has been my mission to restore a culture of respect for law enforcement and for the rule of law, to stop violent crime and to advocate for victims and the law-abiding members of our community. And the way to do that is to challenge those, like Krasner, who have a warped value system, to call out this nonsense, and to aggressively prosecute dangerous criminals in this City and in our District. This is what prosecutors are supposed to do, and it’s what I intend to do every minute of every day that I have this job.
Larry Krasner’s approach to prosecution elevates politics over public safety and puts police in danger. We’ve seen this, not only in his policies that discourage arrests, prosecution, and meaningful prison sentences for serious offenders, but also in the effect that his various litigation maneuvers have had on the integrity of the judicial system. In short, Krasner is hard at work trying to take decisionmaking power out of the hands of judges and juries and into his own – because judges and juries, unlike Krasner, cannot always be trusted to be cheerleaders for violent defendants.
For example, take the case of Jouvan Patterson, who shot Philadelphia shop owner Li (“Mike”) Poeng, with a military-style assault rifle during an attempted robbery of Mr. Poeng’s convenience store in May 2018. Mr. Poeng, a refugee from Cambodia, fought with Patterson on the sidewalk in front of his store, with his wife and children inside the store, terrified. Poeng is now confined to a wheelchair as a result of the shooting.
The DA’s Office originally charged Patterson with multiple crimes, including attempted murder and aggravated assault, but then quietly dropped the attempted murder charges and agreed to a ridiculously lenient plea deal of 3 1/2 to 10 years imprisonment. My Office stepped in once we learned of this miscarriage of justice and charged Patterson federally with one count of attempted robbery which interferes with interstate commerce and one federal firearms charge. On the gun charge alone, he faces a statutory maximum of life imprisonment and a statutory minimum of ten years’ imprisonment, which must run consecutively to any other sentence imposed on the attempted robbery count – with no parole. Mr. Patterson’s trial is scheduled for next year. And I can promise you this – at that court proceeding, the prosecutor from my Office will be acting like a prosecutor and not a public defender. The prosecutor will represent the interests of the public and the victim. There is no “Uncle Bill” waiting for Mr. Patterson in federal court.
And then there’s the case of Michael White, the man accused of stabbing and killing Philadelphia resident Sean Schellenger last summer. Krasner’s pretrial maneuvers – dropping first degree murder charges in favor of third degree, and then more recently his motion to dismiss even the third-degree murder charge against White – framed the factual issues in the defendant’s favor by limiting the jury’s options and paving the way for the defendant to put the victim’s character on trial. The pretrial motion Krasner submitted claimed that his office would fare better with a jury arguing voluntary manslaughter rather than third degree murder. But let’s face it: the only person who fares better with that maneuver is the defendant, Michael White.
Then of course, there’s Krasner’s newly expanded Conviction Integrity Unit, which to date, is responsible for reversing murder convictions of 10 defendants (or five percent of the cases it has reviewed) since Krasner came into office. That’s more than three times the number of convictions reversed in just over a year under Krasner than had been reversed in the previous four years since the unit was formed in 2014. In these cases, a pattern has emerged: Krasner shamelessly substitutes his own judgment for the jury’s, further victimizing the families.
In the latest of these 10 cases – that of Willie Veasy, a convicted murderer – Krasner’s office joined forces with Veasy’s lawyers and filed a joint motion seeking Veasy’s release, which the trial court granted earlier in October. This was a case with both a confession and an eyewitness that the jury had chosen to believe, after weighing the evidence in a court of law, including Veasy’s claimed alibi defense. But Uncle Larry, many, many years after the murder and the trial, decided that what the jury concluded after weighing the evidence didn’t matter; all that matters is what Krasner, the public defender with power, thinks. So he used that power and decided that the police detectives on the case had coerced the confession. Mind you, no court ever ruled that Veasy’s confession was coerced or that the detectives on the case acted improperly. That’s because the DA’s Office didn’t ask any court to do so; it conveniently skipped over the part of the process where the prosecutor seeks an evidentiary hearing during which it could test the defendant’s allegations of coercion. It did so in part because Krasner has had it out for the two detectives on the case for some time, but no court ever had to consider that bias. Equally troubling is the fact that in joining forces with the defendant’s lawyers, the DA’s office also conveniently discounted the eyewitness testimony – that was never recanted – pointing to Veasy as the shooter.
The result: Veasy is freed and Uncle Larry puts up a big number – 10 convicted murderers freed – on his new dashboard. Is this an “exoneration” of a convicted murderer? Is this a finding of innocence? Hardly. It is, instead, the ugly manifestation of Krasner’s hatred for law enforcement – and his affection for convicted murderers – that causes him to usurp the roles of the judge and jury and thereby make a mockery of our criminal justice system. In the aftermath, Mr. Veasy summed up the situation nicely: “Th[ings] are going to change with who we have in office today, and if we continue to keep people in office like him, things will definitely turn around for a lot of people.” Yes, Mr. Veasy, you have that exactly right.
And if Krasner has his way, things are only going to get worse. Which brings me to the never-ending, complicated Mumia Abu-Jamal saga. The District Attorney’s Office’s handling of this case since Krasner took office in 2018 has paved the way for what I believe is Krasner’s long-term play in this case – to become this unrepentant cop killer’s savior and add another tally to his dashboard by freeing yet another convicted murderer. Krasner’s response to a series of defense moves during the most recent phase of this litigation shows an alarming pattern – one showing Krasner’s office backing away, every chance it gets, from its obligation to fight to preserve the jury’s guilty verdict. Even though Krasner technically represents the Commonwealth – that is, the people of Pennsylvania and the victim’s family – his actions confirm that he does so in name only. Instead, he is using his power to side with Abu-Jamal and his lawyers rather than fight for those whom he is supposed to represent.
In the most recent chapter of this case, Abu-Jamal is now pursuing his fifth round of post-conviction review in the Superior Court of Pennsylvania. Broadly speaking, post-conviction review is the judicial process separate from the direct appeals process that gives defendants another avenue to raise legal challenges to their convictions. Convicted criminals first file Post Conviction Relief Act (“PCRA”) petitions at the trial court level – in the Pennsylvania system, that is the Court of Common Pleas sitting as a “PCRA court” – and then those petitions make their way through the normal appellate process. But let’s be clear: a convicted defendant is not entitled to file PCRA petitions in perpetuity; at some point, both state and federal law, duly enacted by the legislature, place clear limits on convicted criminals’ PCRA rights.
Those limits should have been applied in Abu-Jamal’s case, but they clearly were not. He received this fifth proverbial “bite at the apple” because a trial-court level judge – in fact, the same judge who sided with Krasner in the Veasy case – took up Abu-Jamal’s fifth PCRA petition and found in December 2018 that his four previous proceedings were tainted by the mere appearance of bias stemming from then-Justice Castille’s involvement in the case. The court reasoned that because Castille was the Philadelphia District Attorney when Abu-Jamal was convicted, that was enough to raise concerns about the fairness of the judicial process overall.
This PCRA court finding was a big win for this cop killer, as it allowed him to immediately file an appeal to the Superior Court in which he could relitigate multiple issues he previously raised unsuccessfully many years ago. And that is exactly what Abu-Jamal did when he filed an appeal to the Pennsylvania Superior Court in January 2019.
Fortunately for Abu-Jamal, Krasner has been more than willing to lay down in the course of the current Pennsylvania Superior Court appeal rather than fight to defend the jury’s finding of guilt. There’s not one, or two, but three instances to point to, in just this phase of the litigation alone, where Krasner decided to take a dive rather than oppose Abu-Jamal’s various litigation maneuvers.
The first example is seen in how the District Attorney’s Office handled Abu-Jamal’s request in the Superior Court for immediate transfer of his appeal to the Pennsylvania Supreme Court. On March 11, 2019, when the Superior Court asked the parties to show cause why the case should not be transferred, Abu-Jamal advocated to bypass the Superior Court altogether. Rather than opposing that procedure, the District Attorney’s Office stood by and decided not to object to it. Though there are instances (death penalty cases being one of them) when a direct appeal to the Pennsylvania Supreme Court is appropriate, this is no longer a death-penalty case, and Krasner knows that. So why not fight? This is the first move where Krasner’s approach – an utter refusal to engage on the issues – is on full display.
The second instance in the Superior Court involves how the District Attorney handled his office’s appeal of the ruling on Justice Castille’s previous involvement in the Abu-Jamal case. Initially, Krasner’s office appealed the PCRA court’s adverse ruling, but then Krasner’s office withdrew its appeal altogether. That left only Abu-Jamal’s appeal – again raising claims that have been previously raised and rejected – in place. The import of Krasner’s inaction is obvious: it clears the path for a future court to rule differently on one or more of these previously rejected claims. It does not matter than multiple courts have already ruled against Abu-Jamal. It does not matter that the law prohibits endless PCRA petitions and appeals. When advocating for murderous defendants, finality is not of any concern to this public defender with power.
Finally, on the very same day that Abu-Jamal filed his appellate brief in the Superior Court, raising all of those previously rejected claims, he filed a motion for remand based on a whole new theory of relief that he had conjured up. He now claimed there was new factual evidence, disclosed for the first time in January 2019, that raised serious questions about the integrity of his conviction. He further claimed that the new evidence should be reviewed and evaluated by the very same judge that had revived his appellate rights in the first place – the Court of Common Pleas judge that had granted Abu-Jamal’s PCRA petition in December 2018.
By now, you can probably guess what happened: the District Attorney’s Office chose again to take a dive and not oppose remand. From Abu-Jamal’s point of view, this is a far better result than having the Superior Court rule on his case or obtaining an immediate transfer to the Pennsylvania Supreme Court. The reason why is obvious: it sets the stage for the case to go back to the same friendly judge to decide whether this “new evidence” warrants a new trial. Abu-Jamal only has to convince one judge to rule in his favor rather than a panel of Superior Court judges or a majority of Justices sitting on the Pennsylvania Supreme Court. By not opposing remand, Krasner just increased Abu-Jamal’s chances of winning a new trial by knocking out two levels of appellate review and cutting multiple judges out of the deliberative process. All in a day’s work.
The Superior Court has not ruled on the remand issue, but it doesn’t have to because we can already see where this case is headed. Krasner’s pattern of behavior, his decision to take not one dive, not two, but three, in the Abu-Jamal Superior Court appeal alone, has the same feel as what happened in the Veasy case. It’s classic Krasner-style prosecution, which is marked by inaction rather than action; silence rather than opposition; defense-oriented tactics rather than prosecutorial zeal. It is yet another example of how Philadelphia’s public defender with power tries to use that power to manufacture his desired results with as little judicial oversight as possible. And here, what Krasner wants is to see Abu-Jamal walk out of prison.
As horrifying as that sounds, here is how it could happen. It’s not hard to predict how this plays out on remand once you look at Krasner’s shameful pattern of conduct in this and other recent cases. The first pathway to freeing Abu-Jamal is if, on remand, Krasner signals that the trial court judge should grant a new trial based on this newly discovered evidence and the judge obliges; Krasner’s office can then simply take another dive and not appeal that ruling. That is not an unlikely possibility when you consider his past maneuvers.
An alternative path to the same result is if the trial court judge denies Abu-Jamal’s request for a new trial on this newly discovered evidence, but then Krasner waits for the inevitable appeal and takes yet another dive in the Superior Court (it would not be the first time), which will mean procedurally that the Superior Court could remand the case for a retrial without objection from the District Attorney’s Office.
Either outcome would then pave the way for Krasner to conclude that a retrial, almost 40 years after the murder, is an impossible feat for his office to pull off – a conclusion that would be utterly indefensible when you consider how the District Attorney’s Office got there in the first place. And then out walks the cop-killer Abu-Jamal, a free man. Criminal justice, Krasner-style.
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So what are the takeaways from all of this? What can we do about the sorry state of criminal justice in Philadelphia? We can all stand up for those left behind as a result of Krasner’s upside-down approach to prosecution. We can all say “thank you” to our law enforcement community and encourage a culture of respect for law enforcement and for the rule of law. And as federal prosecutors, my Office will continue to serve as the adversaries against crime that the City deserves. In short, we can fight back with all our energy and resolve to do the right thing. That’s a choice that I’ve made, and I will never, ever back down from it. And neither will you. Let’s go forward together and do justice. Thank you, and God Bless you all.