Three separate Pennsylvania juries have convicted Daniel Dougherty of setting a fire that took the lives of his two young sons in 1985. The third conviction, which came in 2019 under the direction of current Philadelphia District Attorney Larry Krasner, is under appeal and is now with the Pennsylvania Supreme Court.
While the case is already a lengthy and complicated affair, Krasner and his team have added an additional complication by altering their arguments upon reaching the commonwealth’s highest court, contradicting claims they made less than a year ago to sustain Dougherty’s third conviction.
Adding to the noteworthy developments, the Pennsylvania Supreme Court asked state Attorney General Josh Shapiro on Friday to submit a brief on the case. Neither the prosecution nor the defense asked for the intervention.
It’s unclear if the request for Shapiro’s involvement is directly related to Krasner’s altered arguments. However, critics of Krasner’s actions contend that his office is potentially conceding the case at the last minute.
“They took a position in the Superior Court, which they won, and then when it goes up to the Pennsylvania Supreme court, they now backtrack and say, ‘We’re consenting and we’re going to withdraw our fight,’ so to speak as it relates to this case?” said Guy D’Andrea, a former assistant district attorney in Philadelphia. “It doesn’t make any logical sense whatsoever.”
“It’s highly unusual for the Philadelphia district attorney’s office to do this, and quite frankly, it would be highly unusual for any law office, whether government or non-government to do this,” D’Andrea later added.
‘It’s highly unusual for the Philadelphia district attorney’s office to do this, and quite frankly, it would be highly unusual for any law office, whether government or non-government to do this…’
The tragic saga began on August 23rd of 1985 when Dougherty’s two sons, Danny Jr., age four, and John, age three, were killed in a Philadelphia row-home fire. Dougherty had been in an argument with his girlfriend late that night, and prosecutors have always maintained that he, in a fit of rage, purposefully set fire to his home and let his children die in the early hours of the 24th.
His first trial didn’t come until 2000, 14 years after the fire.
After his first conviction, an appeals court ordered a new trial in 2014, “saying his original lawyer’s failings were so serious that no reliable determination of guilt or innocence occurred,” the Philadelphia Inquirer reported.
After a second conviction, an appellate court again ruled that Dougherty’s trial had flaws and sent the case back for a third retrial, which resulted in the 2019 conviction under Krasner.
In the ongoing appeal of his third conviction, Dougherty and his legal team maintain that because “Dougherty’s testimony at his first trial was induced by his then-lawyer’s ineffectiveness,” the third trial is also unjust, and a fourth trial should be ordered.
When the third appeal was before Pennsylvania Superior Court (the appeals division of the Pennsylvania judicial system), Krasner’s office stated numerous times in briefings that this argument was “without merit.”
But in the last brief submitted by the DA, the prosecutors changed their argument. They now contend that Dougherty’s testimony “was, in fact, induced by counsel’s ineffectiveness at that trial, and therefore that defendant’s prior testimony should not have been admitted at his third trial.”
Yet, despite conceding this key point, Krasner’s office is simultaneously arguing that the jury would have rendered a guilty verdict anyway. The controversy over the testimony, the DA argues, “was harmless and he is not entitled to retrial.”
Despite conceding this key point, Krasner’s office is simultaneously arguing that the jury would have rendered a guilty verdict anyway.
Dougherty’s lawyers said these shifting arguments represent “a complete about-face from the [district attorney’s] previous position at trial and before the Superior Court[.]
“Where the [district attorney’s office] continues to err—grievously—is in its contention…that the admitted violation of Dougherty’s constitutional rights was harmless.”
Another former assistant district attorney, Christopher Lynett, published a lengthy Twitter thread on the developments, saying that the situation looks like “leadership dysfunction,” and that the “brief [that] looks like a dressed-up concession.”
Lynett sarcastically praised “another outstanding effort by the Krasner DAO. I hope they contacted the children’s surviving family to discuss the grim prospects for sustaining these convictions and the likelihood of a fourth trial. I doubt, however, that any efforts were made.”
Lynett also speculated that Krasner wanted to secure the convictions at the trial court level for appearances, but that he was willing to ultimately lose the case.
A request for comment to Krasner spokesperson Jane Roh was not returned.
Dougherty has been in prison for 21 years. His sentence under the current conviction is life without parole for Second Degree murder, as well as a concurrent sentence for arson.
Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at email@example.com, or use his encrypted email at firstname.lastname@example.org.