In re Office of the Phila. Dist. Attorney

244 A.3d 319 (Table)

IN RE: Conflict of Interest of the OFFICE OF the PHILADELPHIA DISTRICT ATTORNEY,

Petition of: Maureen Faulkner, Widow of Deceased Police Officer Daniel Faulkner

No. 125 EM 2019

Supreme Court of Pennsylvania.

December 16, 2020

ORDER

PER CURIAM

AND NOW, this 16^th day of December, 2020, the King's Bench petition is hereby DISMISSED in accordance with the special master's recommendation. The special master is directed to unseal the record in this matter.

This Court's February 24, 2020 order staying all matters related to the underlying criminal case, Commonwealth v. Wesley Cook, a/k/a Mumia Abu-Jamal , No. 290 EDA 2019; CP-51-CR-0113571-1982, is hereby lifted.

Justice Dougherty files a concurring statement.

Justice Wecht files a concurring statement.

Justice Mundy files a dissenting statement.

Chief Justice Saylor and Justices Baer and Todd did not participate in the consideration or decision of this matter.

JUSTICE DOUGHERTY, concurring

Petitioner Maureen Faulkner, the widow of deceased Philadelphia Police Officer Daniel Faulkner, has asked this Court to invoke its extraordinary King's Bench powers and disqualify the Philadelphia District Attorney's Office ("DAO") from any further involvement in the matter of Commonwealth v. Wesley Cook , a/k/a Mumia Abu-Jamal , CP-51-CR-0113571-1982, "one of the most polarizing criminal cases in Philadelphia history, the nation, and perhaps worldwide[.]" PCRA Court Opinion, 12/27/2018, at 7. Consistent with the recommendation of the Special Master that we earlier appointed to investigate the alleged conflicts of interest that lie at the heart of petitioner's King's Bench request, the Court today declines petitioner's invitation to throw the DAO off the case and replace it with the Office of Attorney General ("OAG"). I write to elucidate my reasons for joining the Court's decision not to intervene any further at the present time, but also to address some of the troubling claims raised by petitioner — claims that may require closer judicial scrutiny should the DAO seek to continue its representation of the Commonwealth in any future proceedings in Abu-Jamal's case.

A.

A brief background is necessary to grapple with the rather unusual legal issues presented in this matter. Nearly forty years ago, in 1981, Officer Faulkner made a routine car stop in Center City Philadelphia. The driver of the vehicle was William Cook, Mumia Abu-Jamal's brother. While Officer Faulkner attempted to handcuff Cook, Abu-Jamal ran across the street and ambushed Faulkner from behind, shooting him once in the back. Although Faulkner was able to return a single shot which struck Abu-Jamal in the chest, he subsequently fell to the ground. Abu-Jamal then stood over the fallen officer and shot him four more times at close range, including once through the center of his face. Within seconds, Robert Chobert, a cab driver who witnessed the shooting, flagged down officers who were responding to Faulkner's earlier radio request for assistance to transport Cook. The responding officers found Abu-Jamal slumped against the curb in front of Cook's car, his emptied gun nearby. Two other pedestrians who had also witnessed the murder identified Abu-Jamal as the perpetrator, and two more witnesses later overheard him make a statement at the hospital to the effect he had "shot him" and "hope[s] the m*****f***** dies." See Commonwealth v. Abu-Jamal , 521 Pa. 188, 555 A.2d 846, 848 (1989) ; Commonwealth v. Abu-Jamal , 553 Pa. 485, 720 A.2d 79, 92 (1998).

A jury convicted Abu-Jamal of first-degree murder in 1982 and sentenced him to death the following year. From that point forward, Abu-Jamal's case has undergone a tortuous and infamous history spanning four decades and involving numerous appeals in state and federal courts. See Commonwealth v. Abu-Jamal , 596 Pa. 219, 941 A.2d 1263, 1265 (2008). Of note, in 2011, Abu-Jamal secured vacatur of his death sentence pursuant to a federal habeas corpus action. See Abu-Jamal v. Sec'y, PA Dep't of Corr. , 643 F.3d 370 (3d Cir. 2011). Rather than continue to pursue a sentence of death following the federal court's decision, the DAO, led by then-District Attorney R. Seth Williams, agreed to a life sentence for Abu-Jamal. This decision was made in consultation with petitioner, who "could not take the notoriety anymore" and did not want to endure the hardship of sitting through another months-long sentencing proceeding for Abu-Jamal. Video Hearing, 5/18/2020, at 3:45:00-3:46:06.

But petitioner's hopes for finality did not last long. In an August 2016 petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546, Abu-Jamal sought nunc pro tunc reinstatement of his appellate rights with respect to four previous unsuccessful PCRA petitions, on the basis that former Chief Justice Ronald D. Castille failed to recuse himself from those appeals. See Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016) (Chief Justice Castille's failure to recuse where he earlier had significant, personal involvement as District Attorney in a critical decision regarding the defendant's case gave rise to an unacceptable risk of actual bias under the Due Process Clause and constituted structural error). The DAO, under the leadership of now-District Attorney Lawrence Krasner, opposed Abu-Jamal's facially untimely fifth petition seeking Williams -based relief. However, after the PCRA court ruled in Abu-Jamal's favor and reinstated his nunc pro tunc appellate rights, the DAO ultimately declined to appeal that decision in spite of its shaky legal foundation. Meanwhile, Abu-Jamal sought to effectuate the grants of nunc pro tunc relief ordered by the PCRA court by filing a notice of appeal to the Superior Court from the denials of his prior PCRA petitions. See Commonwealth v. Wesley Cook , a/k/a Mumia Abu-Jamal , No. 290 EDA 2019.¹

Before those reinstated appeals were resolved in the Superior Court, the DAO informed the PCRA court that District Attorney Krasner had personally discovered several boxes of files in Abu-Jamal's case that had not been turned over to the court pursuant to its previously-issued discovery order pertaining to Abu-Jamal's fifth PCRA petition. The DAO then made the files available to Abu-Jamal's attorneys for review. Based on that review, Abu-Jamal filed a motion for remand in the Superior Court, alleging the discovery of new evidence including, inter alia , a letter which supposedly shows "the prosecution promised its most important witness [(Chobert)] money in exchange for his testimony." Application for Remand, 9/3/2019, at 3. The DAO responded that, while it presently took no position on the relevance or significance of any newly-discovered material found within the six boxes of files District Attorney Krasner had unearthed, it did "not oppose a remand so that the documents may be presented to the PCRA court." Response to Application for Remand, 9/17/2019, at 3. A few days later, the Superior Court issued an order noting it would defer the remand request to the merits panel.

News that the DAO had conceded to a remand to the PCRA court in Abu-Jamal's case was not well taken by petitioner. Consequently, on September 19, 2019, she filed a petition to intervene in the pending appeal before the Superior Court. Claiming the DAO had conflicts of interest preventing it from adequately representing the Commonwealth, petitioner asked the Superior Court to remove the DAO and substitute the OAG as the prosecuting authority. Abu-Jamal opposed the intervention request, maintaining that private citizens, even victims, lack standing to intervene in criminal proceedings. The DAO similarly argued petitioner could not be considered an aggrieved person who could raise the conflict of interest claim; it further suggested the proper forum for her to raise her claim for the first time was the PCRA court, not the intermediate appellate court. Apparently, the Superior Court credited at least one of these arguments, as it denied petitioner's request to intervene without explanation.

Petitioner then turned to this Court in a last-ditch effort to seek the disqualification of what she views as an office "rife with conflicts of interest that undermine the integrity of the adversarial system, and raise clear questions of appearances of impropriety that will vitiate the public's faith in justice being done." King's Bench Petition at 15. To that end, she filed the present petition requesting the Court to "exercise its King's Bench authority by ordering the [DAO] to refer the prosecution of the [Abu -]Jamal matter to the [OAG.]" Id . at 6. In support of her atypical request, petitioner identifies a litany of circumstances that she argues demonstrates the DAO "suffer[s] from undeniable personal conflicts of interest which are so obvious and so incendiary that [its] continued representation of the Commonwealth all but guarantees a biased and unjust adjudication of the [Abu -]Jamal case." Id . at 2. I briefly recount some of those allegations.

Petitioner initially asserts the DAO's failure to contest Abu-Jamal's remand petition "was tantamount to refusing to carry out the District Attorney's responsibility to enforce the law and defend the prosecution of a stone-cold murderer." Id . at 5. Relatedly, petitioner faults the DAO for failing "to do even the most cursory investigation into the bases for [Abu-]Jamal's requested new PCRA hearing" — most notably, the DAO did not contact Joseph McGill, the trial prosecutor whose "personal notes and correspondence are directly at issue in [Abu-]Jamal's remand request." Id . at 23. According to petitioner, if the DAO was "intending to fairly evaluate whether an opposition to [Abu-]Jamal's requested remand was appropriate, evaluating what McGill had to say about this evidence would be critical." Id .² Also relative to the DAO's agreement to Abu-Jamal's remand request, petitioner explains that after she organized a rally in front...