Philly DA Larry Krasner’s office misled court while trying to free a man from death row, federal appeals court rules

The Philadelphia District Attorney’s Office misled a court overseeing its effort to overturn the death sentence of a man convicted of killing an East Mount Airy couple in the ‘80s, and it deserved sanctions later imposed as a consequence, a federal appeals court has ruled.

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the Third Circuit determined that top prosecutor Larry Krasner’s administration “slant[ed] the facts” surrounding defendant Robert Wharton’s case before asking a lower federal court in 2019 to vacate the death penalty and order Wharton to spend life in prison instead.

The punishments U.S. District Judge Mitchell S. Goldberg imposed — including requiring Krasner to write a letter of apology to the family of Wharton’s victims — were both “mild and fitting,” given the circumstances, the appellate panel concluded.

“Courts rely on lawyers’ honesty; lawyers may not mislead them,” Circuit Judge Stefanos Bibas said, writing for the panel in an opinion issued Friday. “But the Philadelphia District Attorney’s Office did just that.”

The ruling both affirmed Goldberg’s scathing rebuke of the office’s conduct in 2022 and provided yet another instance in which courts have questioned his office’s handling of death row appeals.

Since Krasner took office six years ago, courts have repeatedly questioned whether, in withdrawing the office’s historic opposition to several old death penalty convictions, the district attorney’s office has cut corners or failed in its duty to apprise victims of what it is arguing in court.

The Pennsylvania Supreme Court in 2018 questioned the office’s attempts to concede to another defendant’s death penalty appeal without providing substantive reasons for doing so — holding that “a district attorney’s concession … is not a substitute for independent judicial review.”

In the Third Circuit opinion last week, Bibas described that and similar reprimands as a pattern and said Goldberg, the judge overseeing Wharton’s appeal, had ample grounds to question whether the DA’s office had been entirely forthcoming in its representations to his court.

A spokesperson for the district attorney’s office declined to comment Tuesday, except to note that the department that handled Wharton’s appeal was separate from the office’s Conviction Integrity Unit, which since 2018 has helped to overturn more than 40 convictions — mostly in murder cases — that it said were tainted by police or prosecutorial misconduct.

Wharton, now 61, was convicted along with a codefendant in the 1984 strangulation and drowning deaths of Bradley and Ferne Hart inside their East Mount Airy home.

A jury concluded that Wharton, angry over a disputed debt, spent months terrorizing the family — repeatedly breaking into their house, ransacking it, and, on one occasion, leaving a threatening note and a doll with a noose around its neck — before he ultimately forced his way inside at knifepoint and killed the couple.

After the slayings, he turned off the heat, leaving the couple’s surviving child — then-seven-month-old Lisa Hart — alone to freeze to death. She survived.

But while the DA’s office consistently fought Wharton’s appeals in the decades after his death sentence, it abruptly changed course in 2019 after Krasner, a death penalty opponent, took office.

At the time, Wharton was in the midst of an appeal arguing that his original lawyer at trial failed to provide records showing he had been a compliant and obedient prisoner since his arrest — a fact, he argued, might have persuaded the jury to spare him the death penalty and sentence him to life in prison instead.

The DA’s office supported Wharton’s claims, saying it had “carefully reviewed the facts and the law” around his case and communicated with the Hart family before reaching that decision.

However, Goldberg, tasked at the time with deciding whether there was merit to Wharton’s argument, found that explanation for the Krasner administration’s change in stance insufficient. He ordered the Pennsylvania Attorney General’s Office to review the case anew.

Among the facts that investigation uncovered were that the DA’s office had failed to inform Goldberg that Wharton had been cited at least six times for breaking prison rules — including two instances in which he was found with makeshift handcuff keys — and that during a separate robbery trial, he violently attempted to escape from a City Hall courtroom.

The DA’s office chalked up those omissions as “mistakes” and maintained it had not been aware of the escape attempt even though a simple search of Wharton’s criminal history would have uncovered his conviction for that crime.

The attorney general’s office also cast doubt on representations from Krasner’s office that the Hart family had been briefed on and supported its decision to back Wharton’s appeal.

In truth, the DA’s office had not contacted the couple’s only surviving child — Lisa Hart-Newman — and other members of her family, who were vehemently opposed to the decision.

The only member of the family they spoke to, Bradley Hart’s brother, maintained that prosecutors only told him they were considering changing their stance — not that the decision had been made. He, too, told AG’s office investigators he would have disagreed with the DA’s choice.

Lawyers for the Hart family would later describe the lack of communication from the DA’s office as an “affront to justice” and “only the latest chapter in the Hart family’s continued victimization” in a brief filed with the Third Circuit last year.

Goldberg, calling prosecutors misrepresentations “egregious” and “exceptional,” admonished two top supervisors in Krasner’s office, Nancy Winkelman and Paul George, saying they violated their duty of candor to the court.

And though he stopped short of imposing specific penalties against them, he ordered Krasner to write apology letters to four of the Harts’ relatives, including Hart-Newman, and the office to provide a “full, balanced explanation of the facts” in any future cases in which they supported a defendant’s effort to overturn a conviction.

Though Krasner did issue apologies to the Harts, his office appealed Goldberg’s findings, insisting George and Winkelman had not lied and were being punished simply for conceding to Wharton’s contentions on appeal.

The Third Circuit, in its ruling last week, rejected those arguments and, in a separate opinion, rejected the grounds for Wharton’s appeal.

“As officers of the court, lawyers must not mislead courts. So, before they state facts, they must investigate reasonably,” Bibas wrote. “In this case, the Philadelphia District Attorney’s Office and two of its supervisors did not live up to that duty.”