Defense lawyers worry about ‘collateral damage’ as DA Larry Krasner and judge spar over conflict of interest

Philadelphia Common Pleas Court Judge Scott DiClaudio took an unexpected day off Tuesday after the District Attorney’s Office filed a motion arguing he should be disqualified from hearing cases from the District Attorney’s Office because his domestic partner, former Assistant District Attorney Catherine Smith, has filed a discrimination complaint against the office.

On Wednesday, with court back in session, DiClaudio denied the motion to recuse — and then some.

“I am here today and every day as I have been for four years to administer justice. ... I intend to fulfill my oath,” he said.

Paul George, assistant supervisor of the office’s law division, said he would appeal DiClaudio’s decision to Superior Court. “There is now active litigation by this person against this office. ... It creates an appearance of impropriety.”

Meanwhile, defense lawyers stopped by to register their concern — including the ongoing potential impact of that appeal on any cases that may be resolved in DiClaudio’s courtroom while the dispute is ongoing.

“There’s collateral damage here,” said Keir Bradford-Grey, chief of the Defender Association, adding that her clients are in an uncertain position. “We don’t know what the intended or unintended consequences may be. We just want to make sure our clients aren’t harmed in the process.”

Defense attorneys Peter Bowers and Nino Tinari, who both had cases in the courtroom, said they were exploring filing motions opposing DiClaudio’s disqualification. “I think the defense bar is in unison that Your Honor is fair-minded,” Tinari said. He called the district attorney’s petition an act of “emotionality rather than rationality.”

Speaking from the bench, DiClaudio appeared confident he would not ultimately be disqualified. In fact, he appeared to argue that if anyone is compromised, it is Krasner.

Then, before taking up his regular docket, he confronted George with a list of cases in which the work of the district attorney intersected with cases and key players from Krasner’s long career as a civil rights and criminal defense attorney. After each, DiClaudio asked: “Do you think that would be an appearance of impropriety?”

He brought up potential issues arising from any number of cases that hinge on the testimony of police officers whom Krasner once sued. He also questioned the office’s handling of specific cases defended by Krasner’s former associates, including transition team member Michael Coard and Krasner campaign lawyer Marni Jo Snyder.

“I was floored," DiClaudio said, that the prosecutor on one case, also a former Krasner colleague, allowed the defense lawyers to accept service for their clients who were charged in an assault and were not at court that day. (Snyder said she had negotiated with the district attorney in advance to allow the clients not to appear for the pretrial court date, because on a previous status hearing the clients had been “harassed by members of the right-wing press” on their way into the building. “I’ve never been harassed before, I didn’t like it, and I don’t want my clients to keep going through it.”)

And DiClaudio mentioned the case of Jamal Wright, whom George himself had defended in a first-degree murder case; the District Attorney’s Office filed motions supporting vacating that sentence and replacing it with a third-degree murder sentence that would make Wright eligible for immediate parole. George said he was screened from any knowledge of the Wright case.

George responded that those cases were poor analogies for DiClaudio’s current situation.

He likened it, instead, to the case of Terrance Williams, an inmate whose previously overturned death sentence was reinstated in 2014 by a Pennsylvania Supreme Court that included Justice Ronald D. Castille — who, as Philadelphia district attorney in 1986, had approved seeking the death penalty against him in the first place. The U.S. Supreme Court reversed the ruling, calling it a conflict.

“My girlfriend is suing the DA’s Office for alleged discrimination," DiClaudio told those in the courtroom, referring to her firing in February. “That will in no way affect my ability to be fair.”

But, he added, any victims, witnesses, defendants, or other parties may raise the issue on a case-by-case basis.

“If anyone thinks I cannot be fair,” he said, "I will automatically recuse upon request.”