DA Larry Krasner gives up fight in more death-row appeals, stirring concern from courts, families

In August 2014, Tam Minh Le took three men captive in his Southwest Philadelphia garage. He and four masked associates tied up, blindfolded, and beat Vu “Kevin” Huynh and his brother Viet Huynh, who owed a $100,000 drug debt, and their friend Tan Voong.

Le and his conspirators then drove their targets to the Schuylkill, stabbed them multiple times, and dumped them into the river. Both Huynh brothers were weighted down with tar buckets.

Voong clambered out of the river and told police what happened. In December 2016, a Philadelphia jury convicted Le of the brothers’ murders, and declared he should be put to death.

Like most death-row inmates, Le appealed his sentence. He claimed, among other issues, that the state’s death penalty was unconstitutional. Philadelphia prosecutors had fought his appeal — until last September.

Nine months into the tenure of new District Attorney Larry Krasner, the office made an about-face in the case. In a “clarifying position” letter to the state Supreme Court, one of Krasner’s new deputies wrote that prosecutors “after close consideration, determined that it could not continue to argue for affirmance of the capital sentence in this case, at this time.”

Le’s case, still pending, is not an outlier. A review by The Inquirer shows that Krasner has taken steps or signaled a willingness to overturn more than one-third of the death sentences for the 45 Philadelphia convicted murderers currently on death row, often by effectively abandoning any challenge to the appeals.

In court filings, Krasner’s office has cited varying reasons, at times agreeing that defendants had ineffective lawyers or should have been found intellectually disabled and thus ineligible for the death penalty. The issue is not guilt or innocence, but whether the killer deserves to die.

Among those who the DA’s Office agreed should be removed from death row is Ronald Gibson, who fatally shot off-duty Philadelphia Police Officer Frederick Dukes and another bar patron during a botched robbery on Christmas Eve 1990. Gibson’s arguments include that he was a victim of racial discrimination during jury selection and that then-Supreme Court Justice Ronald Castille should have been precluded from considering his appeal because Castille was the city’s district attorney when prosecutors decided to seek the death penalty.

Krasner, a Democrat and former criminal defense attorney, had made clear while running for office his opposition to capital punishment. “I will never seek the death penalty — ever,” he said in a 2017 campaign video. “The DA’s Office is not required to do it and there’s no good reason to do it. It costs a fortune. We don’t execute anyone anyway, and Philadelphia does not have to remain the only city in the Northeast that still has the death penalty.”

But his efforts to reverse death sentences in years-old convictions have raised concerns among law enforcement officials and victims’ advocates about whether his office has been transparent with victims’ families. They also have brought pushback from those who say Krasner is attempting to impose his agenda by asking courts to undo punishments decided by juries.

In one filing last year, a former ranking Philadelphia prosecutor now working for the state Attorney General’s Office said letting new district attorneys invoke “prosecutorial discretion” to overturn past verdicts and decisions could lead to “chaos” in the courts.

“Each new prosecutor could quickly work to reverse every legal precedent of predecessors with whom he disagreed,” said the brief from Ronald Eisenberg, senior appellate counsel in the AG’s Office. “Thousands of convictions would be in jeopardy every four years; the law would be a seesaw.”

Asked to elaborate on the office’s stance on death-row appeals, Krasner’s spokesperson Ben Waxman said all post-trial decisions about whether or not to pursue the death penalty are considered by a committee within the District Attorney’s Office, which then makes a recommendation.

"Each post-trial death penalty matter is considered individually and carefully on many different criteria, depending on the claims raised,” Waxman said in an email Wednesday.

Other so-called progressive district attorneys in the 30 states where the death penalty still exists have taken similar stances on capital cases. In Missouri, newly elected St. Louis County Prosecuting Attorney Wesley Bell, who vowed never to seek the death penalty, has agreed to halt his office’s opposition in the handful of death-row appeals that have arisen this year.

In Harris County, Texas, which includes Houston and once was considered the “capital of capital punishment,” District Attorney Kim Ogg, who took office before Krasner, has declared she would seek the death penalty only in rare cases, such as killings of police officers.

And public sentiment appears to be swinging in their direction. In a national Gallup Poll last year, just 49 percent of the respondents said they believed the death penalty was applied fairly, the lowest percentage since Gallup first asked the question in 2000.

Despite having 139 men on death row, Pennsylvania hasn’t executed an inmate since Philadelphia serial killer Gary Heidnik in 1999. Gov. Tom Wolf, a Democrat, has said that his 2015 moratorium should continue in light of a Joint State Government Commission report last summer that found cause for grave concern in the status of the death penalty.

State Sen. Sharif Street and State Rep. Chris Rabb, both Philadelphia Democrats, are among lawmakers who in April announced a plan to introduce legislation to end the state’s death penalty, saying it is unsuccessful as a crime deterrent, incredibly costly, and flawed.

There are, however, no signs the bill will gain traction in the Republican-controlled legislature. Asked about their proposal, State Senate President Pro Tempore Joe Scarnati (R., Jefferson) replied: “I do not take the issue of the death penalty lightly. However, in the most cold-blooded cases, the death penalty is an appropriate punishment when the evidence is clear."

The Philadelphia killers now on death row arrived there over decades, from Henry Fahy, sentenced in 1983 for the rape and murder two years earlier of a 12-year-old girl, to Le, sent there after his conviction in 2016. (Fahy does not have an active appeal.)

In Le’s case, the district attorney’s Sept. 26 letter to the state Supreme Court clarifying its position was written by Paul George, whom Krasner had hired in February 2018 to be assistant supervisor in the Law Division. During his practice as a defense attorney, George had advocated against the death penalty for clients including Linda Ann Weston, ringleader of a decade-long scheme to enslave and exploit mentally disabled people.

George noted that the DA’s Office in the month prior had taken the position that Le’s “capital sentence should be affirmed” but that because of “ensuing events,” the office now was taking a “change in position.” (In his statement, Waxman said prosecutors “have not agreed that Tam Minh Le should be sentenced to life in prison” but rather have not settled on a stance.)

In his filing, George wrote that he could not argue for Le to be executed until the state Supreme Court resolved the appeals of two other Philadelphia death-row inmates.

One is Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.

Federal public defenders representing Cox and another death-row inmate from Northumberland County are asking the high court to end capital punishment, citing last summer’s commission report and arguing that the death penalty violates the state constitution’s ban on cruel punishment.

In his September letter, George praised Cox’s petition, writing that it “brought into sharp focus serious issues regarding the administration of capital punishment” and “also caused the Commonwealth to reassess” Le’s case.

George also referenced Cox’s petition in a May 3 response to an appeal by Borgela Philistin, sentenced to die for fatally shooting Police Officer Robert Hayes and wounding his partner, Officer John Marynowitz, during a June 1993 traffic stop. He said he wants to wait until after his office responds to Cox’s petition before replying to Philistin’s appeal. The DA’s “position regarding this grave constitutional question has not yet been fully formulated,” he wrote in the Philistin matter.

Three other inmates are also on death row for killing Philadelphia law enforcement officers: John “Jordan” Lewis, who shot Police Officer Chuck Cassidy; Darien Houser, who killed First Judicial District Sgt. Joseph LeClaire Jr.; and Christopher Roney, who shot Police Officer Lauretha Vaird. Krasner’s office, as in other death-row cases, has not said whether it still seeks the death penalty for the three.

But Krasner signaled last year that he won’t push for the death penalty even for cop-killers when he agreed to let Carlton Hipps and Ramone Williams plead guilty and receive life sentences for fatally shooting Sgt. Robert Wilson III during a 2015 GameStop robbery.

Signs of pushback against the office’s new stance began to emerge months after Krasner’s arrival, during the appeal of Lavar Brown. Brown had been sentenced to die for fatally shooting Robert Crawford in December 2003 in North Philadelphia. It was his second murder that year.

In April 2018, George filed a joint motion with Brown’s federal public defender, agreeing that Brown should get off death row and be sentenced to life in prison. In a subsequent brief, George called his office’s move to abandon the death penalty a “policy-based decision” and wrote that the office saw “no reason for [the high court] to expend judicial resources” reviewing the case. He contended that Brown had ineffective counsel during the penalty phase of his trial.

In a bid to bolster the argument, 43 current and former prosecutors nationwide filed an amicus brief supporting the Philadelphia DA’s position and arguing that prosecutorial discretion extends beyond a conviction.

One signer was Miriam Krinsky, executive director of the group Fair and Just Prosecution. In an email to The Inquirer, she contended the practice of prosecutors in reviewing past death sentences is increasing and “is entirely consistent with the ethical obligation of prosecutors” to “address past miscarriages of justice.”

The Pennsylvania Supreme Court invited the state Attorney General’s Office to weigh in. That’s when Eisenberg, who had led the Philadelphia DA’s Law Division but left before Krasner arrived, argued that the justices “must still conduct review” of Brown’s appeal or they would be “acting as rubber stamps.”

He also noted the potential precedent of letting Krasner’s office, without an evidentiary cause, reconsider past convictions: “After trial and on appeal, prosecutors are without authority to undo the jury’s verdict, even for policy-based reasons.”

The high court agreed. In the majority opinion in October that denied Brown’s appeal, Justice Christine Donohue wrote that the DA’s Office, after having previously sought and obtained the death sentence for Brown, “cannot now seek to implement a different result based upon the differing views of the current office holder.”

A similar judicial challenge has emerged in another case.

Krasner’s office in February had asked U.S. District Judge Mitchell Goldberg to vacate the death-penalty sentences of Robert Wharton, convicted of the 1984 strangulation and drowning deaths of a pastor’s son and daughter-in-law in their East Mount Airy home.

City prosecutors said that after reexamining the case and communicating with the victims’ family, they were conceding Wharton’s claim that his trial lawyer was ineffective and that Wharton deserved life in prison instead of lethal injection.

The turnabout perplexed the judge. The DA’s Office previously had “zealously opposed” Wharton’s appeal and suddenly had a “complete reversal of course,” Goldberg wrote in a March opinion. He denied the petition and asked the office to explain its position.

In response, prosecutors wrote that their “responsibility includes changing course, if a prosecutor determines that the facts and law require a position different from that previously taken.”

Goldberg wasn’t swayed. On May 7, he asked the state Attorney General’s Office to weigh in. “[I]t appears as though the District Attorney’s Office has accepted the additional evidence offered by [Wharton] at face value, without exploring whether contrary views may be viable and worth considering,” he wrote.

Former Philadelphia district attorneys Lynne Abraham and Castille, who had once served as the Supreme Court chief justice, said the courts’ invitations to the AG’s Office were unusual.

“As a general proposition, when the case was dismissed, when the verdict was upheld on appeal … we didn’t try to nullify the jury’s verdict,” Abraham told The Inquirer. “That’s what he’s [Krasner’s] doing. He’s nullifying the jury’s verdict.”

Beyond the legal challenges are questions about whether the DA’s Office has been notifying victims’ families when it changes position on sentences, as required under the state Crime Victims Act.

The mother and sisters of Lavar Brown’s victim, Robert Crawford, said they had not been informed by the DA’s Office that it agreed to a life sentence for Brown. Suzette Crawford, 51, one of the sisters, said the family learned from investigators in the Attorney General’s Office about the DA’s new stance. Waxman, Krasner’s spokesperson, disputed that in a March email, contending that a victim-services supervisor had told the victim’s mother of the DA’s motion.

Tram Huynh, 41, sister of the brothers tortured and killed by Le, said in a phone interview last month that “nobody informed me” that the DA’s Office had said it would not continue to fight to keep Le on death row.

“He deserved it," she said.