One of the proudest reforms instituted by progressive prosecutors is the willingness to review old convictions with an eye toward either innocence or denial of due process. And they deserve  appreciation and approbation for doing so, or to be more accurate, for undoing the errors of the past that put innocent men in prison, or at least put men in prison whose convictions were obtained improperly.

But then, what if a progressive district attorney doesn’t conclude that a man was wrongfully convicted, but that for reasons unstated, he’s doesn’t deserve the sentence imposed? What if that sentence was death, but the prosecutor doesn’t support capital punishment? What if he just decides to confess error?

Approximately three years ago, the Third Circuit directed that a hearing be held to determine whether Petitioner Robert Wharton’s trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Wharton alleged, with the District Attorney’s Office now in agreement, that his Sixth Amendment rights were violated by his trial counsel’s failure to investigate and present evidence of Wharton’s positive adjustment to prison at the penalty phase of his homicide trial. Wharton v. Vaughn, 722 F. App’x 268, 280 (3d Cir. 2018). The Third Circuit directed that analysis of this Strickland claim should entail reconstructing the record to consider mitigation evidence not presented by trial counsel and that this hearing “must also take account of the anti-mitigation evidence that the Commonwealth would have presented to rebut the petitioner’s mitigation testimony.” That court also ordered that the Strickland analysis be conducted “consistent with [its] opinion.”

In this case, the Philadelphia district attorney’s office changed its position between the remand from the Third Circuit directing a hearing into whether the defendant’s claim of ineffective assistance of counsel at his second imposition of death sufficed under Strickland v. Washington. Putting aside that the Strickland test is unduly restrictive, the DA decided not to hash it out at the hearing, but rather to throw up its hands and concede. The District Court was having none of it.

In siding with Wharton that his mitigation evidence that the Commonwealth would have presented to rebut the petitioner’s mitigation testimony.” Id. at 283 (emphasis added). That court also ordered that the Strickland analysis be conducted “consistent with [its] opinion.” Id. at 284. requested relief was warranted, the District Attorney’s Office has continually asserted that, despite specific guidance from the Third Circuit as to how Wharton’s Sixth Amendment claim should be analyzed, it was free to concede relief and that a full exploration by the Court of all relevant facts was unnecessary. But this position flatly contradicts unambiguous directives issued by the Pennsylvania Supreme Court regarding the handling of death penalty matters on collateral review. In Commonwealth v. Brown, 196 A.3d 130 (Pa. 2018), the Supreme Court spelled out its rejection, “in the strongest terms,” of the District Attorney’s position that it maintained authority, via a concession and stipulation, to undo a penalty of death on collateral review. Id. at 321. Brown’s reasoning is easily understood and mandates that after a jury has imposed a sentence of death, affirmed on appellate review, the only way to vacate that verdict is through “appropriate” and “independent” judicial review—with the District Attorney’s role in that process being limited to that of an “advoca[te].”

The prosecution’s position was that regardless of what the circuit directed, it retained the discretionary authority to decide not to pursue its opposition to the defendant’s application. The court held that once the authority of the judiciary was invoked, the prosecution has no choice but to adhere to the ruling of the circuit court.

To add insult to injury, the court found that the district attorney misrepresented the position of the victims’ family that they supported the district attorney’s position.

As to the assertion that the Office had decided to concede following “communication with the victims’ family,” this statement gave the impression that the Office had conferred with the family before making the decision to concede and that the family either agreed with the decision or did not object to it. In fact, the only communication was to inform a single family member that the Office was considering conceding. None of the family members supported the Office’s decision to concede, and several expressed shock and indignation that the District Attorney’s Office had suggested otherwise.

When pressed for an explanation, the response was shockingly cavalier.

In contrast to the regret demonstrated by the (now former) Supervisor of the Federal Litigation Unit, the District Attorney’s Office has steadfastly insisted that it has done nothing wrong, owes no explanation, and will provide none.

The court imposed non-monetary Rule 11 sanctions, which the district attorney appealed. Victim whisperer Paul Cassell has submitted an amicus brief for the family. While it may well be understandable that the Philadelphia district attorney’s office does not support capital punishment, and will do whatever it takes to reverse a sentence of death, this was not the way to do it. To be either dishonest with the court as to your purpose and position, or to simply refuse to explain your position despite the judge ordering you to do so, is no way to properly accomplish an outcome, no matter how salutary the outcome might be.

But more importantly, misrepresenting the facts, that a family supports the position when they were never asked or given the opportunity to object, is a flagrant violation of the duty of candor. What this may mean is that even a progressive district attorney who is against the death penalty may not be able to undo the choices of his predecessors to seek and obtain a sentence of death for a defendant, despite honestly informing the court that you, a new prosecutor, no longer approve of what your predecessor did. But deceiving a court is never the answer, any more than deceiving a court in obtaining a conviction. As broad as prosecutorial discretion in individual cases may be, it is not so broad as to dictate to a judge what he must do or to make up stories to accomplish your goal.