THE SKY ISN’T FALLING, PART TWO

On District Attorney Larry Krasner’s fourth day in office, he fired 31 prosecutors in what the media characterized as one of the most “shocking and drastic shakeups that anyone could recall.” “The purge was on full display,” said Dann Cuellar of Action News, while long-time assistant DA’s left the office with boxes in hand. Vernon Odom declared that Krasner had fired “hundreds of years of prosecutorial experience.” The Inquirer quoted unnamed sources who attributed the firings to vendettas or “run-ins with Krasner’s one-time peers in the defense bar” or his wife, Common Pleas Judge Lisa Rau. Even the venerable Jim Gardner joined the fray, noting that Krasner has a problem with mass incarceration but apparently no problem with “mass firings.”

Over the past ten months or so Richard Sax, a now retired long-time prosecutor (who the ACCR staff knows personally), has made himself the leader of the Krasner resistance. Sax claimed that the firings were “personal and vindictive,” and would cause lasting damage to the office. He described the dismissed assistant district attorneys this way: “They won their cases. They prevailed. They achieved justice for their victims. That’s what they did, they did their job.”

Sax’s cataloguing of his former associates’ qualities is both shocking and revealing: in his view, a prosecutor’s duty (his job!) is to win cases, to do justice not for the community, but for the victim. Fortunately the law says otherwise, as best articulated in the United States Supreme Court case Berger v. United States 82 years ago. “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” It is likely that Sax read Berger in law school, but apparently the lesson didn’t sink in: a prosecutor’s job is not to win, nor is it to represent the victim; rather, her job is the hardest one there is. To do justice.

Given the reaction of the media and select former prosecutors, a stranger might think that Philadelphia has just lived through a golden age of criminal justice, and that losing 10% of the staff (former Pennsylvania governor and Philadelphia mayor Ed Rendell fired 25% of his staff when he became DA) is the legal equivalent of decimating the 1927 New York Yankees. Such is not the case, of course. The last DA is now in prison, the one before him a national embarrassment for her overly aggressive prosecution style that now seems utterly anachronistic. Almost 100 death sentences have been reversed, many for prosecutorial misconduct.

The implication of the media overreaction is that Krasner is intentionally weakening his office, as if he were pro-crime and pro-criminal. This is a canard spread by the very people responsible for overcrowding our prisons, excessively seeking the death penalty, and winning cases at any cost. The fairer conclusion is that Krasner has not only read Berger v. United States, but has understood it as well. Once again, allegations of a falling sky are unfounded.

 

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Wake Up Call

At 6:19 a.m. Saturday morning ACCR staff got the call: 38 years, 3 months and 4 days after the 14-year-old Ricky Olds went to prison for buying a bag of potato chips with the wrong crowd, he was going home a free man. rickyfree If you don’t believe the part about the potato chips, read VICE: The 14-Year-Old Who Grew Up In Prison. It is reasonable to wonder how this could have happened, but honestly it’s nothing you haven’t heard before. Just a lot more of it.

It’s always difficult to know where to start a story of unimaginable injustice. Maybe, in this case, racism. How else do you explain charging Ricky Olds – a skinny little black kid who bought a bag of chips in a Pittsburgh quickie mart and ran away when he saw a gun – with murder? Was it because his older friend killed a white man? Or because his lawyer, all of the prosecutors, and the judge were white? Was it because his jury was all white? Was it because it never occurred to any of them that a 14-year-old black kid might not have done anything wrong? It’s impossible to go back in time, and even if we could we wouldn’t get an honest answer. We can see through a little window, however. The judge didn’t want to give Ricky a life sentence, but he couldn’t persuade the prosecutor to be reasonable. The prosecutor thought it was all just a lot of whining: “He’ll be out in 17 years, maybe less,” Robert Colville said. Wrong and wrong.

But that was ancient history, and we like to think that we’re far more fair and just in 2017 than we were in 1979 (though why we would like to think this after November 8th is a mystery). If only it were true. In 2016 the prosecutor insisted on a 20 year to life sentence for Ricky, which was ridiculous given Ricky’s outstanding prison adjustment and his ludicrously minimal involvement in the crime – under what plausible theory did a guy like him require supervision by the Commonwealth for the rest of his life? But he had already served 37 years by then, so at least he would be getting out of prison. Well, not so fast. The prosecutor was only asking for 20 years, but they were insisting that the parole board release him – so they objected to the judge’s granting of bail. By doing so, the DA’s office made a man who never should have gone to prison for a minute serve an extra three months at State Correctional Institute at Somerset. The Commonwealth’s objection to bail for Ricky Olds infuriated us at ACCR, and we were very outspoken about the knee-jerk objections by the prosecution. But the Pittsburgh newspapers used its discretion to keep the specific prosecutors out of the public’s eye. We have no reason to do the same.

Assistant District Attorney Ron Wabby, just minutes before filing an appeal to keep Olds in prison and only minutes after conceding that Olds surely would be paroled when the parole board got around to it, explained to ACCR staff that he was just “following orders from the top man.” The top man? Stephen Zappala, the DA in Pittsburgh who recently lost the race for attorney general of Pennsylvania, is the son of a former Pennsylvania Supreme Court justice. Wabby and Zappala should be ashamed of themselves, but again, the Pittsburgh newspapers have condemned their decisions but not by name.

Ricky Olds is out of prison, and we should all be glad about that. And we are. But you’ll forgive us for not celebrating. His case, from beginning to end, has been an insult to justice. It would be one thing if we could look back and say “how could they,” and believe with some confidence that we are happy we’ve moved on from 1979. But Zappala and Wabby made two very concrete decisions at the end of 2016 – that the “rules” require an innocent kid ricky-olds-at-14-jpg to spend the rest of his life on state parole, and that his continued incarceration after 37 years was necessary to uphold the “proper use of bail.” In other words, their cowardly fear of using the discretion the electorate gave them is no different from the behavior of their counterparts all those years earlier.

We have not come far at all. When someone steps forward and says that we made a mistake all those years ago, that will be grounds for celebration. If we survive the shock, that is.