When The Prosecutor Won’t

Philadelphia District Attorney Larry Krasner is an experiment playing out before our eyes. Whether the experiment will work, or work out as well as hoped, has yet to be seen, but it’s become clear that Krasner, a former criminal defense lawyer, is the real deal. He’s kept his word, made hard calls and, for better or worse, held true to his word. He’s a reform prosecutor.

This didn’t sit well with Court of Common Pleas Judge Anne Marie Coyle, who had a fairly pedestrian probation violation case before her where the defendant was rearrested. She expected the prosecutor to prosecute, to seek the defendant’s probation to be violated in advance of his conviction for the new offense.

The case involves defendant Demetrius Mayfield, 26, who has a long rap sheet and who was charged in 2016 with gun and drug offenses. In May, he pleaded guilty under a negotiated deal to a felony charge of possession of a firearm prohibited by a felon. Coyle sentenced him to 11½ to 23 months in jail, followed by probation. With credit for time served, Mayfield was immediately released from jail. He was prohibited during probation from being in a home or vehicle with drugs or guns.

But Mayfield was rearrested in July on new charges after police found drugs and two guns in a car he had been in with a passenger. He has been in custody since then.

Before you shrug and ask, “what’s the issue,” bear in mind that the violation isn’t proved by the allegations, but by the conviction for the new crime. Until he’s tried, Mayfield is innocent. While probation restrictions are framed by the prohibited conduct, it doesn’t change the need to prove the conduct occurred.

[Judge] Coyle said in court Thursday that she had ordered assistant district attorneys to file a “Daisey Kates motion,” in which a prosecutor asks the court to revoke probation based on a new arrest before the person is tried. But, she said, prosecutors did not proceed with the motion.

Maybe that’s how they did it before Krasner. Maybe that’s just what Judge Coyle wanted to happen. Regardless, the prosecutor refused, and the judge went nuclear, screaming at the prosecutor to do as she commanded. She then “appointed” a special prosecutor, a random defense lawyer in the courtroom, to file the motion since the prosecutor failed, in the judge’s view, to do his job.

Krasner’s office explained that its position was not to seek violation of probation in advance of conviction for the new charge.

In court Thursday, [assistant supervisor of the district attorney’s law division, Paul] George said the office wanted to wait until after Mayfield’s open case is resolved before proceeding with a probation violation hearing, thus avoiding future appellate issues.

Certainly not a crazy position, and not inconsistent with the discretion to be exercised by a prosecutor. This wasn’t a dereliction of duty, but a decision not to leap over the minor detail of conviction first, punishment after. But it wasn’t the way Judge Coyle, a long-time prosecutor before taking the bench, preferred it to be handled. Does that give her the authority to replace the District Attorney with a more compliant prosecutor?

Coyle said in court Thursday that she had ordered assistant district attorneys to file a “Daisey Kates motion,” in which a prosecutor asks the court to revoke probation based on a new arrest before the person is tried. But, she said, prosecutors did not proceed with the motion.

More recently, on Sept. 19, when she wanted to hold the hearing, the District Attorney’s Office refused to participate and “effectively removed itself from the revocation hearing,” Coyle said.  That left her with no other option than to appoint a special prosecutor, she said.

Judge Coyle defended her authority to replace the prosecutor with one of her choosing by this “effectively removed itself” rationale, curious in its circularity since it was Judge Coyle, not the prosecutor, who sought a motion by the prosecution to violate the defendant. Having inserted herself into the role of prosecutor, she created the putative conflict, which she thereupon relied on to condemn the prosecution’s failure.

There is no law that provides for a judge to appoint a special prosecutor when the district attorney just won’t do what she wants.

“There’s already a law that lets a judge follow a process to get the attorney general involved if for some reason the District Attorney’s Office can’t do a case,” said Jules Epstein, a Temple University law professor.

In this context, “can’t” means precluded from serving, as might be the case when there is a conflict of interest. Here, there was no conflict. The DA just decided not to play her game of ball. The exercise of discretion belonged entirely to Krasner.

One concern, he said, is that “judges are supposed to be judges, and prosecutors are supposed to be prosecutors.”

A district attorney is an official of the Executive Branch of government. A judge is an official of the Judicial Branch. Separation of powers demands that one branch not dictate to another how to do its job, absent a statutory or constitutional mandate.

Here, it was just a discretionary choice by the prosecution to file, or not file, a motion. Krasner chose not to do so. Judge Coyle, being a putatively neutral magistrate, gets no vote in the prosecution’s decision, no matter how much she might believe that it’s the wrong decision.

It’s understandable that a judge wants to “defend” her earlier decision to cut a defendant a break by giving him probation. Sentences often come with stern lectures, including that part where the judge threatens the defendant that if he does anything wrong, he’s going to pay. Here was the opportunity for Judge Coyle to make good on her threat, to teach a defendant not to take her admonition lightly.

But a judge, for all the power they wield, is still only a judge. Some forget that. Some can’t let go of their carceral sensibilities, of their association with the prosecution they once served with fidelity. Whether Krasner made the right call isn’t the question, and isn’t subject to Judge Coyle’s approval. This wasn’t up to Judge Coyle, and Krasner was doing his job, as he saw fit. That’s how it’s supposed to work.

17 thoughts on “When The Prosecutor Won’t

  1. B. McLeod

    This is nuts, and an obvious separation of powers problem. A judge who thinks it is OK to take over and direct the prosecutor’s functions should be recused from hearing criminal cases.

    Reply
      1. B. McLeod

        Which is probably how this judge somehow managed to completely miss it. In my years as a prosecutor, I encountered only one judge like this (who was also a career prosecutor prior to taking the bench). After returning to private practice, he went on to disgrace himself and retire after basically failing to defend a client in a sexual predator commitment. Some people stay prosecutors no matter what hat they put on, and colleagues who have that problem should never try to touch (and should never be allowed to touch) any criminal or quasi-criminal matter in any capacity but prosecutor, since that is all they know.

        Reply
  2. wilbur

    ” … after police found drugs and two guns in a car he had been in with a passenger”

    That’s a hell of a long way from proving anything on Mr. Mayfield.

    It sounds like the judge invested herself personally in the decision to cut him a break the first time around, as if she was placing herself on the line in doing so. I understand the urge to do so, but if it comes back to bite you the urge to react personally has to be resisted. Easy to say, not so easy to do.

    Reply
  3. Billy Bob

    FilthyDelphia is a filthy town, always was, always will be, going back,… Which is unfortunate. They got great minority clubs however. That is affirmative.

    Been there, done that. Can you say Passyunk and 6th? I did not think so. Hard to believe this is the place where the Constituition was hammered out. Benjamin Franklin-breath. Hamilton had a misdress there, no? Well somebody did!

    Wonder why Trump and family don’t open a hotel/casino complex in downtown?

    Probobably too close to ATlantic City, and its own ghetto.
    P.S., Philly has the largest “working ghetto” this side of CHICago. You have nothing to fear but Law Enforcement itself. And any prosecutor or judge who is not woke. If the two are not on the same page, we have a problem, Houston. (Pronounced HowSton up North.)

    Reply
      1. Billy Bob

        Piccadilly Club, BreweryTown, NW, “Closed by Order of the Pennsylvania Liquor Conrol Board for CRIMINAl VIOLATIONS.” Ha. How many violations was that? When I was there, I did not see any violations. But then again, I was not looking for any! I did see a lot of naked flesh. Ha. (Which you wouldn’t see outside a porno mag.)

        Funny thing: nobody bothered me or hardly paid any attention, except the babes. They were all over me like a rash.
        As long as the $s kept flowing. Ha. That is what I call InTeGraTion.

        Reply
  4. DaveL

    I have to wonder, how did this random CDL react to being appointed Special Prosecutor In-Charge-Of-Revoking-Some-Dude’s-Probation?

    Reply
  5. Dan

    Is it wrong, or just naive, that I’m shocked by this? It’s so wrong on so many levels–how could the judge have thought this was legitimately within her power?

    Reply
  6. CharlieMack

    Just for fun, I think the DA’s office should use prosecutor’s discretion and drop the charges against Mayfield. Then notify the judge that the probation violation is no longer an issue.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.