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.