The Superior Court of Pennsylvania, the commonwealth’s appellate branch of the judiciary, last August admonished Philadelphia District Attorney Larry Krasner and his team for a surge in requests for extensions to file briefs.
The court pointed out that “undue delays” can impede the “fair and speedy administration of justice” after noting that the reasons for the DA’s extensions had become “increasingly tenuous.”
“One recent application attributed the extension request to the fact that the intern assigned to draft the brief lives in a different time zone, while another sought an additional ten days to account for the short illness of an assigned law clerk,” the letter said.
The court pointed to its own statistical analysis of fillings between September 2019 and August 2020, saying it was aware of “2120 extension requests filed in 1096 [appeals] cases,” that 100 cases had three or more extensions granted, and that “227 briefs [were] filed overdue notwithstanding the extraordinary number of extension requests granted.”
An internal email from the DA’s office shows officials were scrambling to get as many cases up to date as possible, noting that “the court views this as a very serious problem.”
The court’s letter, meanwhile, went on to say its statistical count was likely conservative.
“These statistics are not perfect—our research has indicated that, in fact, they under-report the situation and that as concerning as they are, the exact numbers are higher,” the letter continued. “Nevertheless, these numbers demonstrate not only an unacceptably high number of extension requests, but also a concerning trend toward repeated requests on the same cases.”
The letter from the court took pains to point out that the “high volume” of extension requests was not due to the Covid-19 pandemic alone, saying, “Over the past several years, however, the Court has observed a marked and concerning increase in the number of requests for extensions,” from the Philadelphia DA’s office.
An emailed request for comment to Jane Roh, spokeswoman for Krasner, as well as to the Superior Court were not returned.
Guy D’Andrea, a former assistant district attorney in Philadelphia, says the issue is a serious one.
“The District Attorney’s Office, at times, may need additional time to respond [in an appeal] and they can request an extension. These requests should be used sparingly, nowhere near 2,000 times and should be for legitimate good cause.”
D’Andrea said the use of interns to draft filings is not necessarily a bad thing, but blaming them for being unable to be timely is not a good sign. And he added that ultimately, some successful prosecutions could be jeopardized.
The defendant would likely have their appeal granted which could very well lead to dangerous individuals being released from prison and back on the streets.
Guy D’Andrea, former Philadelphia assistant district attorney
“If the DAO is not timely responding to appeals, the Superior Court could deny the DAO the ability to respond to an appeal. If that happens, then the only materials the Superior Court would have would be those submitted by a convicted defendant,” D’Andrea explained. “The defendant would likely have their appeal granted which could very well lead to dangerous individuals being released from prison and back on the streets.”
D’Andrea said that although the letter was signed by the court’s prothonotary–the principal clerk of the court–that it’s highly unlikely that it was not directed to be sent by a judge or judges sitting on the Superior Court.
This is not the first time Krasner’s office has faced rebukes from the judiciary over the handling of cases.
Most recently, Philadelphia Common Pleas Court Judge Rose Marie DeFino-Nastasi delivered a harsh reprimand to Assistant District Attorney and head of the office’s new Conviction Integrity Unit Patricia Cummings. Cummings had struck a deal to have charges dropped against Jahir Harris. Harris was convicted of a brutal 2012 murder during former Philadelphia District Attorney Seth Williams’s administration. Krasner’s office said his conviction was unjust after claiming to discover that some evidence in the case was held back.
“[F]or an exoneration with agreement from both the District Attorney’s Office and defense, it was an unusually contentious hearing,” the Philadelphia Inquirer reported. “[Judge] DeFino-Nastasi did not extend an apology to Harris for his wrongful conviction, nor express clear support for the view that he was innocent.
“Instead, she admonished Patricia Cummings, chief of the District Attorney’s Conviction Integrity Unit, for her handling of the case, calling her theory pointing to an alternate suspect ‘unsubstantiated’ and her filings ‘utterly inappropriate’ and designed to ‘harass and influence the court.’”
Krasner himself responded to the reprimand, telling the Inquirer, “I’m also not surprised to see that the leader of the Conviction Integrity Unit and an office that represents change are going to be lightning rods on occasion for hostility for institutions that are not quite as ready for change.”
About a month before that, the same Convictions Integrity Unit drew the ire of a justice, this time from the federal bench.
U.S. District Judge Mitchell S. Goldberg blasted the DA’s office for overturning the conviction of Antonio Martinez at the local level, circumventing a similar process that was already underway in Mitchell’s court. Martinez was found guilty of a double homicide in 1985.
“Goldberg said that the DA’s Office has a ‘duty of candor’ to the court and that its ‘discretion cannot be used as a mechanism to forum shop for the quickest result without full disclosure to the federal court,’” the Inquirer reported.
Krasner was first elected in 2017 and is up for re-election this year. In the May primary he faces Carlos Vega, a former prosecutor in the Philadelphia DAO.
Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at tshepherd at broadandliberty.com, or use his encrypted email at shepherdreports at protonmail.com
Full text of the Superior Court letter to the Philadelphia district attorney’s office:
Dear Mr. Goode:
I hope this letter finds you safe and healthy during this difficult time.
As you are undoubtedly aware, the Superior Court traditionally has been generous when granting the numerous applications the Philadelphia District Attorney’s Office files requesting an extension of time in which to file a brief. Although every briefing schedule derives its specified filing dates from application of the Rules of Appellate Procedure, the Court recognizes that the high volume of appeals from the First Judicial District that the District Attorney’s Office must litigate counsels a certain level of lenience.
Over the past several years, however, the Court has observed a marked and concerning increase in the number of requests for extensions filed by the District Attorney’s Office. I have included for your review recent statistics compiled by the Administrative Office of Pennsylvania Courts illustrating the enormous volume of extension requests that your office files in a vast number of the appeals in which the District Attorney’s Office is a party.
Although compiled only for a one-year period (9/19 to 8/20), these statistics substantiate the following points of concern:
• 2120 extension requests filed in 1096 cases
• Two (2) extensions requested on 200 different cases
• Three (3) or more extensions requested on another 100 different cases
• Eight (8) cases in which four (4) extensions were requested, and one (1) case in which five (5) extensions were requested
• 227 briefs filed overdue notwithstanding the extraordinary number of extension requests granted.
Significantly, these statistics are not perfect—our research has indicated that, in fact, they under-report the situation and that as concerning as they are, the exact numbers are higher. Nevertheless, these numbers demonstrate not only an unacceptably high number of extension requests, but also a concerning trend toward repeated requests on the same cases. Additionally, the extension requests seldom seek less than 30 days; much more commonly, they seek 60 or even 90 days. In sum, the extensions requested by the District Attorney typically delay the disposition of the criminal appeals on which they are filed by three to six months.
It is also troubling to note that the explanations the District Attorney’s Office offers in support of its extension requests have lately grown increasingly tenuous. One recent application attributed the extension request to the fact that the intern assigned to draft the brief lives in a different time zone, while another sought an additional ten days to account for the short illness of an assigned law clerk. One particular Assistant District Attorney repeatedly cites an online article concerning a high volume of PCRA appeals to support his extension requests, yet the article was originally published in 2016. These justifications hardly speak to a sense of urgency.
Moreover, the District Attorney’s Office has paid none of the extension fees it has incurred since March. At this juncture, the amount due is roughly $7500.00
The Superior Court fully understands the difficulties the COVID-19 pandemic presents for the legal community. Like other government offices, the Court has confronted the obstacles of remote work and skeleton staffing, as well as the challenges of conducting video and telephonic arguments. Nevertheless, throughout the pandemic, the Court has continued to perform the essential functions with which it is charged.
The fair and speedy administration of justice requires that we all do our part to ensure that undue delays in the appellate process do not occur. Briefing is a fundamental aspect of the appellate process and extension requests should be filed only when truly necessary. To this end, I hope that the Office of the District Attorney of Philadelphia will move expeditiously to comply with this Court’s Rules-based briefing schedules.
Thank you for your cooperation in achieving this important goal.
Sincerely,
Joeseph D. Seletyn, ESQ.
Protonotary