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PaperclipPerfector  1mo ago (text post)   24387 thread views

Culture War Roundup for the week of June 15, 2026

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Truly unbelievable set of court opinions from Philadelphia, providing lots of support for accusations of anarcho-tyranny:

  • A person is charged with two murders, one in January 2003 and another in December 2003. In 2004, he is convicted of the first murder, and is sentenced to life in prison. In 2005, he is convicted of the second murder, and is sentenced to death, partially because the first conviction is an aggravating factor.

  • In 2018, the person files for habeas corpus in the second sentencing (not conviction). The county prosecutor (Philadelphia District Attorney Larry Krasner, elected as a Democrat) concedes error and agrees that the death sentence should be reduced to life imprisonment. The habeas judge rejects the petition, and the state supreme court affirms (five to two), keeping the death sentence in place, because there was no actual basis for the prosecutor to concede error!

  • In 2020, the person files for habeas corpus in the first conviction (not sentencing). The prosecutor concedes error and agrees that the conviction should be overturned, and the habeas judge grants the petition and vacates the conviction. But the family of the murder victim intervenes and appeals, and the state supreme court reverses (by a bare vote of four to three), finding that the prosecutor not only had no basis to concede error, but actively lied to the habeas judge in order to get this murder conviction overturned! And this particular prosecutor has been engaging in similar shenanigans in over one hundred other murder habeas petitions! (Specifically: He has conceded error in 120 cases, including 110 murder cases and 35 death-sentence cases (75 percent of all the death-sentence cases in the county). 45 of the 120 concessions have not resulted in new trials; rather, the "exonerated" former convicts have merely been freed. 10 of the 120 concessions, including 9 in murder cases, have already been rejected as baseless by the state supreme court or by the federal appeals court.)

  • Remedy: Whenever the Philadelphia prosecutor concedes error in a habeas petition, the state prosecutor (Attorney General) must receive an opportunity to intervene against the Philadelphia prosecutor. (The three dissenters think (1 2) that this remedy goes too far beyond the limits of the case. One concurring justice thinks that it doesn't go far enough, and state law obligates the state prosecutor to intervene in county proceedings that become non-adversarial due to the county prosecutor's admission of error.)

The DAO insists its many concessions over the past eight years in mostly murder cases “simply demonstrate that the DAO has embraced its responsibility as a minister of justice”. We endorse in the strongest possible terms a prosecutor’s duty to minister justice. Lest there be any uncertainty on this score, we reiterate that a prosecutor is ethically obliged to concede relief on PCRA review when (but only when) the facts and law support it. We also emphasize that our decision is not intended to “counteract the policy choices” of the DAO. DA Krasner remains free “to exercise his discretion on behalf of the Commonwealth in Philadelphia’s criminal and PCRA cases”. But the means for achieving those ends cannot transgress the bounds of the law, and what we have seen in this case and too many others is the opposite of justice. Again and again, the DAO has made unreliable concessions unsupported by the facts and law. And when conceding relief, the DAO has repeatedly lacked candor to the court, misrepresented facts, failed to conduct adequate investigations, and inexplicably dodged necessary evidentiary hearings. This Court too has a “duty… to minister justice”. Indeed, our “principal obligations are to conscientiously guard the fairness and probity of the judicial process and the dignity, integrity, and authority of the judicial system, all for the protection of the citizens of this Commonwealth”. Our duty to safeguard justice compels us to order that in all PCRA cases in which the DAO concedes relief, the PCRA court shall afford the OAG notice and the opportunity to intervene before ruling on the concession.

For bonus points:

After multiple hearings and extensive briefing, we find that Nancy Winkelman knowingly made misrepresentations to effectuate a policy of vacating all death sentences on appeal, at PCRA, or on federal habeas review.

Of the many cases that the CCRC considered, it invariably recommended that the DAO concede death penalty relief, usually on ineffectiveness grounds. Winkelman agreed with all these recommendations. As we explained in George, the DAO thus eventually conceded relief at post-trial as to all death penalties.

Remarkably, although George mentioned both the Circuit’s Remand Order and positive prison adjustment evidence, he failed to inform the CCRC of the Circuit’s direction to “reconstruct the record,” and mentioned none of the anti-mitigation evidence in Wharton’s prison record that the Circuit had explicitly ordered the Parties to reconsider. Yet, Winkelman did not question these glaring omissions, or the conclusion that Wharton’s prison record was “exemplary,” even though she knew from the Circuit’s Remand Order that his prison record contained significant anti-mitigation evidence and was not “exemplary.” Winkleman told us that she remembered nothing about the CCRC meeting at which Wharton was considered, except George’s failure to present anti-mitigation evidence and the CCRC’s decision. We do not credit that testimony.

After the OAG submitted its brief describing the anti-mitigation evidence the DAO had failed to disclose, Judge Goldberg held hearings on the matter, permitting the OAG to participate. Entering her appearance, Winkelman herself authored and signed a vigorous eight page “Objection” to the OAG’s participation as a “full-fledged adversarial party.” Winkelman repeated that the DAO decided to concede “after a thorough review” by the CCRC. Winkelman protested the OAG’s “in-depth factual investigation,” and its “highly aggressive, partisan stance."

Yet, in its Remand Order, the Third Circuit explicitly referred to Wharton’s “very serious misconducts,” and possession of a “confiscated weapon” while in prison. Given these explicit references in its Remand—an Order Winkelman acknowledged was unique in her experience—her denial that she knew about the anti-mitigation evidence necessarily was not true.

In her Answer to Putnam’s Petition, Winkelman argued that the Petition should be “dismissed with prejudice” and the Order to Show Cause “discharged.” . In support, Winkelman, inter alia, denied that the DAO had not misrepresented to Judge Goldberg respecting the CCRC’s review:

[P]rior to conceding relief, the CCRC conducted a careful review of the records concerning Wharton’s case, which included anti-mitigation evidence (but not the escape attempt).

This is not true. Winkelman and George testified before us that George’s presentation included no anti-mitigation evidence. George’s memo to the CCRC also included no reference to anti-mitigation evidence. Nor did it include the Circuit’s instruction to reconstruct the record to include anti-mitigation evidence.

George, related, has been left arguing :

As set forth in the Opening Brief, all of the Panel’s relevant findings werepredicated on its unsupported conclusion that the DAO had a “policy” of conceding error in every capital case and that Mr. George’s concession in this case was made pursuant to that policy. Op. Br. 27. Disciplinary Counsel alleged in the Petition for Rule to Show Cause that the DAO had a policy of conceding death penalty relief in every case, regardless of the merits of the case. App.492. The Panel agreed, stating that Mr. George conceded death penalty relief in all post-conviction and habeas matters, that he was “mendacious” because he adamantly denied the existence of such a concession policy and that he was the “architect” of the policy’s implementation. Yet in characterizing the record as “overwhelming,” Disciplinary Counsel fails to identify any evidence that such a policy existed other than providing the number of conceded capital cases, id. 33.]

I'm extremely confused. Did the convicted person commit the murders or not? Was the foostering about "okay, he dunnit, but we don't believe in the death penalty here so let's pretend everything was done wrongly so sentence can be changed to life imprisonment" or was it "yeah he didn't dunnit, we will pretend it was done wrongly because there isn't any other way to challenge this"?

Uh... there's a bunch of different ones, here.

Robert Wharton's homicide of Bradley and Ferne Hart, and near-killing of their infant childen, is the one that George and Winkelman got in hot water over. The evidence here is strong: Wharton confessed to killing Ferne shortly after the murders, he had a motive, he'd previously been caught threatening the couple (over his own shoddy work), he had a lot of property taken from the victim's home, and one of the people who was with him during the previous threats but not the murders said he admitted to the killing. The only serious current dispute is the penalty: George and Winkelman claim that he'd behaved well enough in custody before his sentence such that the defense's failure to raise the evidence was a serious fault requiring a new evaluation of the death penalty, and the victim's relatives were okay with a life sentence; the real story is that he'd been a sociopath in prison and that now-grown daughter who was very nearly a third homicide victim was never consulted.

That's probably why the court is so very direct in the one I linked to.

ToaKraka's link is about Lavar Brown, who had two separate homicide cases: the killing of Robert Crawford, and the robbery of Michael Richardson where the ringleader of the robbery killed Richardson. The Crawford case is straight-forward: a couple eyewitness saw Brown shoot Crawford multiple times, police caught him a little over a minute later, and he tried to ditch the gun while the police cornered him. Brown's lawyers have tried to get process relief under ineffective counsel, but it's pretty pretextual. The complicated part here is that the Crawford killing is pretty bog-standard gangland violence; Brown's many other serious convictions very likely put the death penalty on the table.

The Richardson one is the most iffy. Christopher Kennedy did the actual shooting; there's no serious debate about that, and since he's already been resentenced to life, the CIU probably won't try. There were allegedly five people in on the plan, and Brown was arrested a couple hours after the shooting with one of the people involved. Brown was convicted for felony murder as having planned and assisted the robbery, and since the plan itself involved at least shooting a security guard 'in the leg' and Crawford if he fought back, it's a pretty central example of what the felony murder law is there for. That's not a death penalty crime itself, but it's one in a long series that made the Crawford killing death-penalty eligible.

But there were no eyewitnesses or physical evidence, and Brown probably didn't enter the store himself during the robbery-turned-homicide. The big evidence was from other people involved in the crime, who were not exactly the most credible witnesses on top of also wanting to save their skins. The CIU claims that one, Vann, who was central to Brown's conviction, had previously also pointed fingers at a woman with the last name of Paige, who was in jail at the time, and that the police never turned that evidence undermining their already-shaky main witness over. That's a "done-wrongly" argument, but both combined would genuinely strike at the strength of the conviction.

It's also a somewhat-plausible one? Giglio incriminating statements are one of those things that prosecutors sometimes 'lose', or just don't write down in the first place. There's a specific e-mail from the Philadelphia DA's office that Krasner's been waving around saying that the police were just not writing down when a witness contradicted their testimony (page 36 on the pdf), and that's an overread, but it does say that they didn't write down or disclose every time a cooperating witness was flaky or inconsistent.

But it's not clear it's happened here enough to matter. The only evidence about Vann fingering Paige seems like it's pulling from an unrelated investigation that was on the same fax. The undisclosed material that's on record is just Vann's other information he'd provided in unrelated sources, which is arguably not Brady or Giglio. The stuff that's implied as undocumented is just a woman named Lyons having a proffer session where she placed Brown at the crime but minimized her own involvement -- and that's a situation where the only testimony and records are coming from a defense lawyer tied to Krasner who had been defending Lyons, and the most expansive version doesn't actually make Brown look innocent.

The prosecutor's office still looks slimy, and I would be kinda surprised if the CIU genuinely couldn't find a single debatable conviction, but these don't look it. Don't have the time to look at the other ten cases right now.

Thanks for taking the time to answer this.

The Hart murders seem to be straightforward, and the only real change I would make post-sentencing is "In fact, you and your co-accused should be taken into a room and have the shit kicked out of you", not any "poor little tyke, you were framed!" changes.

The others seem complicated and messy in the way of habitual criminals. The problem with jail house confessions, or police interviews where everyone has a strong incentive to say "It wasn't me, it was him!", is that there is too strong an incentive to lie in order to get reduced sentences/plea bargains for yourself. So claiming "I was Bill's cellmate and he told me he definitely did it all, now do I get parole like you guys promised me?" isn't worth spit in my view.

The prosecutors do seem to have been ideologically captured, at least, but the skimming I've done of that Winkelman link , I honestly can't figure out what the hell they thought they were doing, or trying to achieve.

Yeah, the prosecutor's office seems to have been more interested in getting someone, rather than necessarily getting the right guy. I've got a bit of sympathy. Funt seems like a jerk in the extent that he'll file stuff he knows is not true, rather than just being on the other side, and there's a long-standing tendency for aggressive defenses to call everything down to a sneeze Giglio material. But 'joking' about sending detectives to interview a defense lawyer is inappropriate without far great evidence of genuine illegal behavior, and some of the occlusions here did more to make the conviction riskier, rather than actually mattering.

((This points to a general problem with Brady/Giglio, where police and prosecutors have a lot of incentive to abuse it in marginal cases where they're likely to lose anyway, aka innocent people. But that's a broader 4th Amendment and 14th amendment problem.))

Krasner's team... philosophically, they're just opposed to the death penalty as a category. Charitably, that's out of a feeling that it was disproportionately applied on the basis of race, but they're really heavy on defense-oriented lawyers who just like getting thirty bites at the apple regardless of the sentence or crime, so the charitable argument isn't very strong. The court might be overstating things when they say the DAO is trying to overturn literally every death sentence -- there's a couple non-African-American death row inmates Krasner might skip, either due to the severity of their crimes or not seeing the racial nexus as applicable there -- but I wouldn't consider it a safe bet, either.

Tactically? They probably got away with it for a while, and the courts have genuinely had to fudge the rules to handle it. Toa's opinion has a dissent with multiple signatories, and that's not great in my opinion, but it means that, at least by Pennsylvanian standards, Krasner's team and behavior are not hilariously illegitimate as a tactic.

Did the convicted person commit the murders or not?

Presumably yes, since the error that the prosecutor conceded was imaginary.

Was the foostering about "okay, he dunnit, but we don't believe in the death penalty here so let's pretend everything was done wrongly so sentence can be changed to life imprisonment"?

Yes. It's a bit complicated:

(1) Conviction of murdering Crawford → life sentence.

(2) Conviction of murdering Richardson + prior conviction of murdering Crawford (aggravating factor) → death sentence.

(3) Appeal of death sentence? Nope—appeal is rejected.

(4) Appeal of conviction of murdering Crawford → no aggravating factor → another appeal of death sentence? Nope—appeal of conviction of murdering Crawford is rejected.

This is particularly frustrating if you do think there's a place for the various post-conviction review panels. Wrongful convictions do happen, whether because of new technology that makes it genuinely possible to identify or exonerate killers, bad science that was left to bite too long, or overt bad acts by prosecutors.

The majority here highlights the Chester Hollman case as showing how financially high the stakes are, and I'm not convinced that the man is innocent, but there's meaningful and concealed contemporaneous evidence. I'm genuinely not sure that he could be convicted again today, even before a fair court, and even discounting the clawbacks by witnesses.

But this stuff is endemic. Radley Balko went on a crusade in Shinn v. Ramirez, about the Barry Lee Jones execution. His version was damning, and if you believed the defense, it was clear evidence that Jones could not possibly have caused the death. And then you look at the medical information, and you realize that the defense position presupposed an extremely narrow pattern of injury that did not have strong external evidence, and only made it slightly more possible for anyone else to have caused the injury, including just 'Jones, 12 hours earlier, when he was also there'. I've pointed before the Innocence Project's death penalty page being a near 50:50 mix of serious claims and barely or non-credible ones.

Digging into this is truly an eye glazing endeavor. How the fuck did lawyers do this before AI?

Anyways, it seems to be based on whether there was prosecutorial misconduct in the first trial, specifically if they committed a Brady violation by not turning over information from witness interviews that could be used to impugn their credibility. The specific details are really boring and technical.

It's not really surprising that the Philadelphia DA office, historically, did not keep its hands perfectly clean. And it is abstractly a good thing to check the work of one's predecessors. But this probably isn't the best use of their resources.

It's... uh, a bit worse than that. The PA Supreme Court brings up 11 people where the DA Office seems to knowingly provided false information to the courts in order to free serious criminals, mostly murderers and one armed robber, ranging from trying to bind the court to incorrect concessions (another case involving this very same guy) to concealing parallel state-federal operations (Antonio Martinez, this case again) or concealing or failing to recognize important facts of the case (Robert Wharton, Kevin Johnson), to just straight-up lying about the basic facts of the case (Dontia Patterson).

Given that the supposed 120 concessions of error, that the DAO has been caught trying to illegitimately free convicted criminals in at least 9% of concessions. Dissent quibbles that those cases had some overlap, so it's probably worse than that.

Remedy: Tie conviction rates less conceded errors to personal advancement in a prosecutor's career. Prosecutors cannot be an elected position in this remedy. A prosecutor should be deincentivized from having losing cases on their professional record.

If anyone is arrested for any crime after they have been released after a prosecutor conceded an error within the shortest term of the charges which were conceded the prosecutor, relevant staff, and largest donor to the prosecutors reflection serve the minimum sentence of the arrested offense.

This is a major plot driver of Law Abiding Citizen, the prosecutor accepts a plea deal to protect his conviction rate.

Tie conviction rates less conceded errors to personal advancement in a prosecutor's career.

Choo Choo! Here comes the train because people are going to be rail roaded under this system.

No justice system is perfect, sometimes innocent people are convicted and sometimes the criminal murderers go free.

I think people should be incentivized to do their job, and disincentivized from doing the opposite of their job. I want the tax auditor disincentivized from giving tax breaks. I want the firemen disincentivized from allowing fires to burn buildings. I want the doctor disincentivized from selling me unproven medical treatments. I want people to not do the opposite of their job description, even if there are occasional errors and mistakes.

The prosector who railroads and convicts an innocent person can have their salary cut and retirement benefits reduced, and the threat of demotion and the loss of their job if their mistake is serious enough. Like any other job, there should be consequences for serious mistakes or abuses of power.

sometimes innocent people are convicted and sometimes the criminal murderers go free

And it is a fundamental principle of English Law, that one instance of the former ought to be prevented even at the cost of allowing ten of the latter.

Absent other factors, and assuming murderous criminality has a strong genetic basis, Blackstone's ratio might result in a high level of murderous criminality in the general population as the innocent are butchered faster than they can reproduce.

From this perspective, a 1:1 ratio or even a 10:1 ratio allowing for many innocent convictions will reduce the genetic propensity for murderous violence.

Aka "kill everyone and let God sort them out".

If you hang a man at p(murderer)=0.5, you are not increasing justice at all.

Of course, the threshold on p(murderer) must be low enough that you can achieve general deterrence. If you require ten upstanding citizens giving eyewitness reports under oath to convict a murderer, this will make it very easy to commit murder without facing consequences.

I think that murders by private citizens are only a small fraction of the homicides committed in the last few hundred years or so. They happen, but the median homicide victim was probably killed in state-sponsored violence.

You would certainly cut down on private murders if you allowed cops to shoot whomever they feel are up to no good. But this will reliably lead to the "up to no good" designation being applied to political enemies, entrenching whomever is in power, which is generally a terrible idea.

I can make assumptions too! Assuming that a large portion of the population has a genetic propensity not to commit violent crime if not committing such guarantees that they will not be convicted of it, and also a genetic propensity, if they are likely to be convicted of horrifying crimes whether or not they committed them, to lash out against the system that put them in such an impossible position out of spite (defecting against those who defected against them in the previous round), rejecting Blackstone might result in more violence than a few 'orrible murderers getting away with their deeds.

Thou call'dst me dog before thou hadst a cause, But since I am a dog, beware my fangs.

--William Shakespeare, The Merchant of Venice

[I]f you are maximally mean to innocent people, then eventually bad things will happen to you. First, because you have no room to punish people any more for actually hurting you. Second, because people will figure if they’re doomed anyway, they can at least get the consolation of feeling like they’re doing you some damage on their way down.

--Scott Alexander, Slate Star Codex, August 2014

If all you were concerned about was long term genetic propensity to violence, couldn't you just introduce castration as a "lower tier" punishment that you dish out more readily?

Castration would probably be a good two-for: it would probably lower the propensity to violence directly (see steers vs bulls), and stop them from reproducing. You probably wouldn't even need to imprison most of them. I would actually argue it would be more humane than locking people up for decades, as we do in the US.

(Although, as an aside, I think murder numbers among any demographic would need to be significantly higher than they are for Blackstone's ratio to actually result in murderers killing faster than the birth rate. The United States may have higher violent crime rates than Europe, but even with Blackstone's ratio as an inherited principle of our common law legal system, we're still far from that fate.)

Krasner was not elected until 2018, long after the errors that he is conceding allegedly were made. It makes no sense to punish one prosecutor for conceding errors made by his predecessors (assuming that those errors actually exist).

He's lying about the errors in order to let people free.

I was talking about a hypothetical situation where he wasn't lying, which is what the incentive system would be aimed at.

Seems like a better solution would be to have much stricter requirements for conceding errors on behalf of someone other than yourself, requiring actual proof and not just a concession.

Except it's a binary decision. The alternative is to argue a position that his office thinks doesn't have any support.

The alternative is to change the system to have someone else take up the adversarial position that it DOES have some support. Clearly someone at some point did, otherwise the original prosecutor wouldn't have said what they said. They should have to make a case before a judge, likely with a prosecutor from another district or something taking up the adversarial position. It should not be possible for a single person to arbitrarily declare someone not guilty with absolutely no checks and balances to prevent them from abusing this power (and yes, this does generalize to Presidential pardons). Any time someone sort of can do this (like a Judge dismissing charges for a case with no apparent merits) it should be done publicly and procedurally with feedback mechanisms where they get in trouble if they break procedure and just do this arbitrarily when there obviously is merit.

The problem here isn’t this his office doesn’t think a position lacks support. The problem is that his office is prejudiced against certain outcomes and is using “error” as a backdoor to change those outcomes.

The problem is that his office is prejudiced against certain outcomes and is using “error” as a backdoor to change those outcomes.

Ultimately, that's a big part of the reason this situation is so disturbing. What do you do about an adversary who is willing to aggressively abuse the legal system for the sake of his own agenda? If you don't respond in kind, you're at a significant disadvantage. If you do respond in kind, it threatens to destroy the whole system.

In this situation, the bad guys fortunately lost due to the judiciary stopping them. But you can bet your bottom dollar that Soros and his crew are trying to figure out ways to capture the judiciary. I wouldn't be surprised if that were a top priority for them.

If the system allows this stuff, it deserves to be destroyed.

Failure to do so is cowardice.

What do you do about an adversary who is willing to aggressively abuse the legal system for the sake of his own agenda?

In the past, the entire federal civil rights infrastructure was in part constructed because local law enforcement couldn't be trusted to fairly apply the law, through some combination of local law enforcement looking the other way, jury nullification of certain outcomes, and so forth. This isn't a new problem, but this particular avenue seems to be so. I can't speak to whether Section 1983, for example, could be applied to this case.

Yeah, the election of certain positions like prosecutors invites trouble, as demonstrated in this situation.

Remedy: Execute the prosecutor.

The correct remedy is for the bar association to suspend the prosecutors license, but they aren't going to do that.

Sadly that strikes me as a "coup complete" solution. Or at a minimum, a "coup already well underway" solution.

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