In re Conflict of Interest of Office of the Phila. Dist. Attorney

Full title: IN RE: CONFLICT OF INTEREST OF THE OFFICE OF THE PHILADELPHIA DISTRICT…

Court: SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

Date published: Dec 16, 2020

244 A.3d 319 (Pa. 2020)

Opinion

No. 125 EM 2019

12-16-2020

IN RE: Conflict of Interest of the OFFICE OF the PHILADELPHIA DISTRICT ATTORNEY, Petition of: Maureen Faulkner, Widow of Deceased Police Officer Daniel Faulkner

PER CURIAM.

ORDER

PER CURIAM

AND NOW, this 16^th day of December, 2020, the King's Bench petition is hereby DISMISSED in accordance with the special master's recommendation. The special master is directed to unseal the record in this matter.

This Court's February 24, 2020 order staying all matters related to the underlying criminal case, Commonwealth v. Wesley Cook, a/k/a Mumia Abu-Jamal , No. 290 EDA 2019; CP-51-CR-0113571-1982, is hereby lifted.

Justice Dougherty files a concurring statement.

Justice Wecht files a concurring statement.

Justice Mundy files a dissenting statement.

Chief Justice Saylor and Justices Baer and Todd did not participate in the consideration or decision of this matter.

JUSTICE DOUGHERTY, concurring

Petitioner Maureen Faulkner, the widow of deceased Philadelphia Police Officer Daniel Faulkner, has asked this Court to invoke its extraordinary King's Bench powers and disqualify the Philadelphia District Attorney's Office ("DAO") from any further involvement in the matter of Commonwealth v. Wesley Cook , a/k/a Mumia Abu-Jamal , CP-51-CR-0113571-1982, "one of the most polarizing criminal cases in Philadelphia history, the nation, and perhaps worldwide[.]" PCRA Court Opinion, 12/27/2018, at 7. Consistent with the recommendation of the Special Master that we earlier appointed to investigate the alleged conflicts of interest that lie at the heart of petitioner's King's Bench request, the Court today declines petitioner's invitation to throw the DAO off the case and replace it with the Office of Attorney General ("OAG"). I write to elucidate my reasons for joining the Court's decision not to intervene any further at the present time, but also to address some of the troubling claims raised by petitioner — claims that may require closer judicial scrutiny should the DAO seek to continue its representation of the Commonwealth in any future proceedings in Abu-Jamal's case.

A.

A brief background is necessary to grapple with the rather unusual legal issues presented in this matter. Nearly forty years ago, in 1981, Officer Faulkner made a routine car stop in Center City Philadelphia. The driver of the vehicle was William Cook, Mumia Abu-Jamal's brother. While Officer Faulkner attempted to handcuff Cook, Abu-Jamal ran across the street and ambushed Faulkner from behind, shooting him once in the back. Although Faulkner was able to return a single shot which struck Abu-Jamal in the chest, he subsequently fell to the ground. Abu-Jamal then stood over the fallen officer and shot him four more times at close range, including once through the center of his face. Within seconds, Robert Chobert, a cab driver who witnessed the shooting, flagged down officers who were responding to Faulkner's earlier radio request for assistance to transport Cook. The responding officers found Abu-Jamal slumped against the curb in front of Cook's car, his emptied gun nearby. Two other pedestrians who had also witnessed the murder identified Abu-Jamal as the perpetrator, and two more witnesses later overheard him make a statement at the hospital to the effect he had "shot him" and "hope[s] the m*****f***** dies." See Commonwealth v. Abu-Jamal , 521 Pa. 188, 555 A.2d 846, 848 (1989) ; Commonwealth v. Abu-Jamal , 553 Pa. 485, 720 A.2d 79, 92 (1998).

A jury convicted Abu-Jamal of first-degree murder in 1982 and sentenced him to death the following year. From that point forward, Abu-Jamal's case has undergone a tortuous and infamous history spanning four decades and involving numerous appeals in state and federal courts. See Commonwealth v. Abu-Jamal , 596 Pa. 219, 941 A.2d 1263, 1265 (2008). Of note, in 2011, Abu-Jamal secured vacatur of his death sentence pursuant to a federal habeas corpus action. See Abu-Jamal v. Sec'y, PA Dep't of Corr. , 643 F.3d 370 (3d Cir. 2011). Rather than continue to pursue a sentence of death following the federal court's decision, the DAO, led by then-District Attorney R. Seth Williams, agreed to a life sentence for Abu-Jamal. This decision was made in consultation with petitioner, who "could not take the notoriety anymore" and did not want to endure the hardship of sitting through another months-long sentencing proceeding for Abu-Jamal. Video Hearing, 5/18/2020, at 3:45:00-3:46:06.

But petitioner's hopes for finality did not last long. In an August 2016 petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546, Abu-Jamal sought nunc pro tunc reinstatement of his appellate rights with respect to four previous unsuccessful PCRA petitions, on the basis that former Chief Justice Ronald D. Castille failed to recuse himself from those appeals. See Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016) (Chief Justice Castille's failure to recuse where he earlier had significant, personal involvement as District Attorney in a critical decision regarding the defendant's case gave rise to an unacceptable risk of actual bias under the Due Process Clause and constituted structural error). The DAO, under the leadership of now-District Attorney Lawrence Krasner, opposed Abu-Jamal's facially untimely fifth petition seeking Williams -based relief. However, after the PCRA court ruled in Abu-Jamal's favor and reinstated his nunc pro tunc appellate rights, the DAO ultimately declined to appeal that decision in spite of its shaky legal foundation. Meanwhile, Abu-Jamal sought to effectuate the grants of nunc pro tunc relief ordered by the PCRA court by filing a notice of appeal to the Superior Court from the denials of his prior PCRA petitions. See Commonwealth v. Wesley Cook , a/k/a Mumia Abu-Jamal , No. 290 EDA 2019.¹

1 The actual remedy directed by the PCRA court was that Abu-Jamal "be permitted to reargue his appeal[s] before the Pennsylvania Supreme Court." Supplemental PCRA Court Opinion, 3/26/2019, at 13. But since those prior PCRA appeals reached this Court only because Abu-Jamal was then serving a sentence of death, see 42 Pa.C.S. § 9546(d), and he was later resentenced to life imprisonment in 2012, he filed these nunc pro tunc appeals in the Superior Court.

Before those reinstated appeals were resolved in the Superior Court, the DAO informed the PCRA court that District Attorney Krasner had personally discovered several boxes of files in Abu-Jamal's case that had not been turned over to the court pursuant to its previously-issued discovery order pertaining to Abu-Jamal's fifth PCRA petition. The DAO then made the files available to Abu-Jamal's attorneys for review. Based on that review, Abu-Jamal filed a motion for remand in the Superior Court, alleging the discovery of new evidence including, inter alia , a letter which supposedly shows "the prosecution promised its most important witness [(Chobert)] money in exchange for his testimony." Application for Remand, 9/3/2019, at 3. The DAO responded that, while it presently took no position on the relevance or significance of any newly-discovered material found within the six boxes of files District Attorney Krasner had unearthed, it did "not oppose a remand so that the documents may be presented to the PCRA court." Response to Application for Remand, 9/17/2019, at 3. A few days later, the Superior Court issued an order noting it would defer the remand request to the merits panel.

News that the DAO had conceded to a remand to the PCRA court in Abu-Jamal's case was not well taken by petitioner. Consequently, on September 19, 2019, she filed a petition to intervene in the pending appeal before the Superior Court. Claiming the DAO had conflicts of interest preventing it from adequately representing the Commonwealth, petitioner asked the Superior Court to remove the DAO and substitute the OAG as the prosecuting authority. Abu-Jamal opposed the intervention request, maintaining that private citizens, even victims, lack standing to intervene in criminal proceedings. The DAO similarly argued petitioner could not be considered an aggrieved person who could raise the conflict of interest claim; it further suggested the proper forum for her to raise her claim for the first time was the PCRA court, not the intermediate appellate court. Apparently, the Superior Court credited at least one of these arguments, as it denied petitioner's request to intervene without explanation. Petitioner then turned to this Court in a last-ditch effort to seek the disqualification of what she views as an office "rife with conflicts of interest that undermine the integrity of the adversarial system, and raise clear questions of appearances of impropriety that will vitiate the public's faith in justice being done." King's Bench Petition at 15. To that end, she filed the present petition requesting the Court to "exercise its King's Bench authority by ordering the [DAO] to refer the prosecution of the [Abu -]Jamal matter to the [OAG.]" Id . at 6. In support of her atypical request, petitioner identifies a litany of circumstances that she argues demonstrates the DAO "suffer[s] from undeniable personal conflicts of interest which are so obvious and so incendiary that [its] continued representation of the Commonwealth all but guarantees a biased and unjust adjudication of the [Abu -]Jamal case." Id . at 2. I briefly recount some of those allegations.

Petitioner initially asserts the DAO's failure to contest Abu-Jamal's remand petition "was tantamount to refusing to carry out the District Attorney's responsibility to enforce the law and defend the prosecution of a stone-cold murderer." Id . at 5. Relatedly, petitioner faults the DAO for failing "to do even the most cursory investigation into the bases for [Abu-]Jamal's requested new PCRA hearing" — most notably, the DAO did not contact Joseph McGill, the trial prosecutor whose "personal notes and correspondence are directly at issue in [Abu-]Jamal's remand request." Id . at 23. According to petitioner, if the DAO was "intending to fairly evaluate whether an opposition to [Abu-]Jamal's requested remand was appropriate, evaluating what McGill had to say about this evidence would be critical." Id .² Also relative to the DAO's agreement to Abu-Jamal's remand request, petitioner explains that after she organized a rally in front of the DAO to protest that decision, "Krasner's official, City-paid spokesperson posted [the following] Tweet mocking the protestors because of their race[.]" Id . at 22.Beyond the DAO's handling of Abu-Jamal's pending Superior Court appeal and PCRA remand request, petitioner contends District Attorney Krasner "has staffed his office with a cadre of individuals who not only are long-time and public advocates for [Abu-]Jamal's innocence, but also include [Abu-]Jamal's appellate lawyer[.]" Id . at 27. In this respect, petitioner refers to Paul George, Esquire, the Assistant Supervisor of the DAO's Law Division, which comprises the Appeals and PCRA Units, among others. More than a decade ago, petitioner tells us, "George signed and filed an appellate brief on behalf of [Abu-]Jamal in which George asserted that the conviction must be overturned as new facts establish that the prosecution ... was a product of fraud and false evidence deliberately orchestrated by members of the Philadelphia Police Department." Id . at 17 (internal quotations and citation omitted). Petitioner argues that George cannot simply be screened from Abu-Jamal's case while his subordinates "continue to defend what [George] considers to be criminal acts." Id . at 2. This is particularly true, from petitioner's perspective, since George "is responsible for [ ] performance evaluations, opportunities for promotion, salary increases and other fundamental terms of [ ] employment" for the ADAs assigned to handle Abu-Jamal's case within the PCRA and Appeals Units. Id . at 16; see id . at 27-28 ("the assigned ADA will have to proceed ‘against’ [Abu-]Jamal with the knowledge that his direct supervisor and many of his high ranking [DAO] colleagues have long voiced the belief — some in filed public pleadings — that [Abu-]Jamal should be free and that his conviction was based on criminal police misconduct").

2 Indeed, petitioner secured an affidavit from McGill in which he explains that he received the Chobert letter "after trial and after [Chobert] had testified truthfully," and that it merely reflects Chobert's mistaken belief "that he was owed money for lost time from work." Affidavit of Joseph McGill, 11/18/2019, at 3 (emphasis in original).

Petitioner further asserts District Attorney Krasner is personally biased, pointing to his comment to the media where he accuses some "former prosecutors of being ‘war criminals[.]’ " Id . at 3; see id . at 18-19 and n.22, citing Del Quentin Wilber, Once Tough-On-Crime Prosecutors Now Push Progressive Reforms , LOS ANGELES TIMES (Aug. 5, 2019) ("In interviews, he called McSwain, the U.S. attorney, a ‘liar,’ and former prosecutors in his office ‘war criminals.’ "). Petitioner specifically notes that "[t]wo of the lawyers Krasner has characterized as ‘war criminals’ ... both worked on defending the guilty verdict in the [Abu- ]Jamal case" through their former roles supervising the DAO's Appeals Unit and Law Division, respectively. Id . at 19. As well, in a supplement to her petition, petitioner informs us that she discovered information showing that District Attorney Krasner was associated with the National Lawyers Guild ("NLG"), which lists Abu-Jamal as a member. The NLG, petitioner explains, formed a group of five attorneys, including Krasner, to represent individuals arrested for protesting at the 2000 Republican National Convention, some of whom advocated for Abu-Jamal's release.

Finally, petitioner highlights several other staffing choices made by District Attorney Krasner that she believes reveals a bias in favor of Abu-Jamal. For instance, petitioner references DAO employee Jody Dodd, who previously served as the office manager in Krasner's private law firm, as having been an "active member" of a group that advocated for Abu-Jamal's exoneration. Id . at 3.

In light of this lengthy list of perceived conflicts of interest, and since "there is no procedural avenue for the public to object," petitioner urges that "this Court must exercise its King's Bench authority to rectify such a threat to the integrity of the judicial process." Id . at 24; see id . at 6 ("since both Krasner and [Abu-]Jamal are apparently satisfied to march side-by-side through the legal proceedings while ignoring the current conflicted representation and the numerous appearances of impropriety, the ethical crisis may never be judicially addressed unless this Court acts"); see also OAG's Response to King's Bench Petition at 3 ("Unlike the usual conflict of interest challenge, the kind of conflict identified in the King's Bench petition does not prejudice either party to the underlying litigation. Rather, the justice system itself is adversely affected, along with those it is intended to protect."); id . at 6 ("The governmental activity at issue here is uniquely within the role of the judiciary.").

Faced with these serious allegations which, if true, could adversely affect the integrity of the justice system, we appointed the Honorable John M. Cleland as a Special Master and tasked him with conducting such hearings or other proceedings as necessary "to determine if the [DAO's] participation in the underlying criminal case ... presents the appearance of a conflict of interest such as to impede the fair and impartial administration of justice." Order, 3/3/2020, at 1.³ In so doing, we afforded Judge Cleland significant discretion in determining how best to conduct the inquiry, but instructed that he "shall consider the various allegations of conflict referenced in the petitioner's King's Bench Petition and Supplement to King's Bench Petition[.]" Id . at 2. In service of that mandate, Judge Cleland permitted the parties to engage in limited discovery pertaining to the following four issues: "(a) Whether it is the intention of the DAO to defend the conviction in the pending PCRA proceeding; (b) Whether the DAO has any evidence to support or justify a decision by the DAO not to defend the conviction; (c) What the strategic or legal basis was for consenting to a remand to the PCRA court; ([d]) What the strategic or legal basis is for not interviewing Joseph McGill or otherwise preserving his testimony." Order, 4/7/2020, at 2.

3 I commend Judge Cleland for dispatching his assigned duties with haste and the same level of diligence and professionalism that he consistently demonstrates when called upon to aid this Court from time to time.

At the conclusion of discovery, the parties submitted pre-hearing statements, 107 hearing exhibits, transcripts of four depositions, a number of affidavits, and offers of proof for 25 witnesses. Judge Cleland reviewed all of this material before scheduling a video hearing for May 18, 2020. On that date, Judge Cleland questioned petitioner, Krasner, George, Dodd, and four other DAO witnesses: Nancy Winkelman, Esquire, Supervisor of the Law Division; Tracey Kavanagh, Esquire, Supervisor of the PCRA Unit and the ADA primarily responsible for handling Abu-Jamal's post-conviction claims; Lawrence Goode, Esquire, Supervisor of the Appeals Unit; and Grady Gervino, Esquire, the ADA within the Appeals Unit tasked with handling Abu-Jamal's pending appeal before the Superior Court. Judge Cleland limited examination of the witnesses to "subjects deemed relevant to [him] and only for the purpose of clarifying information provided by any witness and deemed of concern to [him]." Order, 5/14/2020, at 5; see also Special Master's Report, 6/17/2020, at 8-9 ("I conducted the initial questioning of each witness, focusing on the issues I believed required explanation or clarification beyond what had been already produced for my review."). Following the hearing, the parties were permitted to, and indeed did, file proposed findings of facts and conclusions of law.

Thereafter, on June 17, 2020, Judge Cleland submitted to this Court his report, which explains that since the supposed focus of the King's Bench petition is on two decisions made by the DAO — "not opposing a defense-requested remand to the PCRA court ... and not interviewing McGill" — discovery was limited to those issues. Special Master's Report, 6/17/2020, at 7. Ultimately, the report concludes "those two decisions rest on reasonable legal and strategic foundations" and that "no evidence has been presented that supports a finding that the District Attorney or his assistants do not intend to defend the conviction." Id . at 2. See also Krasner Deposition, 4/22/2020, at 26 ("the information that I have reviewed suggests to me that Mumia Abu[-]Jamal is guilty of this crime, that he committed a homicide"); id . at 28 ("I believe that this conviction should be maintained, not only because I think it reflects accurately that [Abu-Jamal] is guilty, but it should be maintained because I see nothing to date indicating a reversal is appropriate"). From there, the report proceeds to set forth and analyze nine "essential allegations ... supporting the contention that the DAO is beset by clear and unambiguous conflicts, as well as appearances of impropriety." Special Master's Report, 6/17/2020, at 9 (internal quotations and citation omitted). But Judge Cleland determines petitioner "failed to establish the existence of a direct conflict of interest, which compromises the ability of the District Attorney or his assistants and staff to carry out the duties of his office[,]" and likewise failed to establish "the existence of an appearance of impropriety that would compromise a reasonable person's confidence in the capacity of the District Attorney or his assistants and staff to serve the fair and impartial administration of justice[.]" Id . at 1-2. He thus recommends we dismiss petitioner's King's Bench petition.⁴

4 Petitioner filed objections to the Special Master's report to which the DAO responded.

B.

Initially, it is important we acknowledge the proper scope and standard of review over this matter, including over the Special Master's Report. Generally speaking, "[b]y its ‘supreme’ nature, the inherent adjudicatory, supervisory, and administrative authority of this Court at King's Bench ‘is very high and transcendent.’ " In re Bruno , 627 Pa. 505, 101 A.3d 635, 669 (2014). For that reason, "[t]he exercise of King's Bench authority is not limited by prescribed forms of procedure or to action upon writs of a particular nature; the Court may employ any type of process or procedure necessary for the circumstances." Id . Moreover, and critically, we have held that "in matters such as these where we have exercised plenary jurisdiction and have not relinquished that jurisdiction to the tribunal which is in essence acting as a special master for this Court, our review must be de novo ." Annenberg v. Commonwealth , 562 Pa. 581, 757 A.2d 338, 342-43 (2000) (emphasis added); accord Commonwealth v. Banks , 612 Pa. 56, 29 A.3d 1129, 1134 (2011) ("In other matters where we have invoked plenary jurisdiction, and appointed a trial judge to essentially act as a master while retaining jurisdiction, we have concluded that our review is de novo ."). When addressing a special master's factual findings, "we will afford them due consideration," but they "are not binding on us [.]" Annenberg , 757 A.2d at 343 (emphasis added).

Here, we deemed it appropriate to "appoint a special master to investigate the matters referenced in the King's Bench Petition [ ] and to make recommendations to this Court." Order, 2/24/2020, at 1. Significantly, in doing so, we made clear that "[j]urisdiction is retained." Order, 3/3/2020, at 2. By declining to relinquish our jurisdiction to the Special Master, we signaled our intent to maintain de novo review over this matter in its entirety, consistent with our practice in other matters in which we invoked plenary jurisdiction and appointed a special master to assist the Court in performing its various functions. See In re Thirty-Fifth Statewide Investigating Grand Jury , 631 Pa. 383, 112 A.3d 624, 633 n.3 (2015) (Baer, J., concurring) (collecting cases in which we appointed a special master). As a result, although we must give Judge Cleland's factual findings due consideration, they quite simply "are not binding on us[.]" Annenberg , 757 A.2d at 343. And to the extent Judge Cleland has provided conclusions of law based on his factual findings, those conclusions are, as plainly expressed in our prior order, "recommendations." Order, 2/24/2020, at 1; see also In re Thirty-Fifth Statewide Investigating Grand Jury , 112 A.3d at 633 (Baer, J., concurring) ("The function of a special master is to gather necessary factual information, consider pertinent legal questions, and provide the court with recommendations.") (footnote omitted). With this understanding of the applicable standards, I proceed to address the claims raised by petitioner.

C.

As noted at the outset, I join the Court's decision to adopt the Special Master's recommendation to dismiss petitioner's King's Bench petition. However, upon my own de novo review of the record and the claims presented, I believe petitioner has actually made a colorable showing that the DAO is afflicted by (at the very least) the appearance of a conflict of interest such as to impede the fair and impartial administration of justice in Abu-Jamal's case.

The conflict alleged in this case is highly unusual, in that it suggests an elected District Attorney and his office are biased in favor of a convicted criminal defendant. This reality undoubtedly makes the conflict, if there is one, more difficult to identify and confirm. Indeed, as the OAG cogently explains, "[c]onflicts such as that averred here ... will not often manifest themselves as failures or refusals to prosecute. The effect of an improper conflict of interest will generally be less blatant." OAG's Response to King's Bench Petition at 6-7 n.2 (internal quotations omitted); see also id . at 3-4 (Where the claim is "that counsel for the prosecution [is] conflicted by bias in favor of the defendant, neither counsel nor the defendant would have any interest in raising it. To the contrary, the defendant would wish to preserve pro-defense bias for his personal benefit, while counsel for the prosecution would wish to avoid judicial review of his conduct.") (emphasis in original). Despite these circumstances, and the uphill battle they represent, I find that petitioner has identified a number of circumstances that strongly suggest a less blatant conflict of interest does in fact exist.

First, I question the DAO's decision to withdraw its appeal from the PCRA court's order reinstating Abu-Jamal's appellate rights nunc pro tunc . Although the DAO has throughout this litigation emphasized that it opposed Abu-Jamal's Williams -based post-conviction claims, it has proffered no explanation, strategic or otherwise, in support of its decision to terminate the Commonwealth's appeal from the PCRA court's unfavorable ruling. This is significant because, had the DAO succeeded on appeal in showing that the PCRA court erred in reinstating Abu-Jamal's appellate rights nunc pro tunc , that would have put an end to the current round of litigation entirely, which is precisely what the DAO claims is its overarching objective.

The DAO's concession to Abu-Jamal's remand request in the Superior Court is similarly questionable. Strategic reasons aside, the fact remains that the remand request to which the DAO agreed is contrary to the procedure this Court has specified for such matters. See Commonwealth v. Lark , 560 Pa. 487, 746 A.2d 585 (2000) (providing that, when newly discovered evidence claims arise during a PCRA appeal, the proper course is for the petitioner to file a new PCRA petition upon resolution of the pending matter); accord Commonwealth v. Bond , 572 Pa. 588, 819 A.2d 33 (2002). And despite touting himself as the final decision-maker for all strategic choices made in Abu-Jamal's litigation, District Attorney Krasner also candidly admitted during his deposition that in formulating his decision not to oppose the remand request, he had not familiarized himself with the applicable legal standards. See, e.g. , Krasner Deposition, 4/22/2020, at 44 ("I wasn't so focused on some sort of an academic analysis[.]"). While I have no doubt that District Attorney Krasner credibly testified to his sincere belief that it would be in the best interest of all parties to concede to a remand under the circumstances, it is still disconcerting to me that a District Attorney would make such an important decision in this high-profile case without first considering whether the decision comports with the law.⁵ More troubling still are the comments District Attorney Krasner has made to the media suggesting that several former prosecutors who previously worked on Abu-Jamal's case are "war criminals." Although the article in which Krasner's remark appeared did not specifically mention Abu-Jamal or the two former DAO supervisors who previously handled Abu-Jamal's appeals, the implication was obvious; Krasner practically admitted as much throughout these proceedings. See Video Hearing, 5/18/2020, at 2:13:38-2:14:12 (explaining his "war criminals" quote referenced a "joke about certain individuals in the DA's Office who had run off and been hired by a different law enforcement agency"); id . at 3:08:39-3:09:19 (discussing the circumstances of the former DAO supervisors’ departure from the DAO and subsequent hiring by the OAG). See also Chris Brennan, Philly DA Larry Krasner Clashes with Pa. AG Josh Shapiro — Again — Over Alleged Power Grab , PHILADELPHIA INQUIRER (Aug. 9, 2019) ("DA's staffers now call the Attorney General's Office ‘Paraguay,’ Krasner told Clout, a reference to the South American country where Nazis took refuge after World War II."). While District Attorney Krasner and the DAO shrug off the comment as "hyperbolic humor[,]" Answer to King's Bench Petition at 22, there are presumably many others out there who would just as quickly deem the reference highly offensive.⁶ Regardless, such comments — much like the DAO's spokesperson's racially-charged tweet aimed at petitioner and her supporters — are utterly inappropriate, have no place in our ordered system of justice, and potentially evince a bias against those who have sought over the years to uphold Abu-Jamal's conviction.⁷ Yet another arguably disqualifying conflict in this matter involves George's role as the Assistant Supervisor of the Law Division. No one disputes that George has an actual conflict of interest due to his prior representation of Abu-Jamal. And petitioner asserts that "[n]o level of screening can eliminate this conflict[.]" King's Bench Petition at 2. The Special Master disagrees, however, concluding instead that "George has been screened from involvement in the underlying litigation, and there is no evidence that he has been involved in making or influencing any legal or strategic decisions." Special Master's Report, 6/17/2020, at 15.

5 This is not the only instance in which District Attorney Krasner has mischaracterized the relevant law in this matter. For example, I note that, in defending the decision not to interview McGill prior to agreeing to the remand request, Krasner repeatedly asserted that "there's some case law that can be interpreted to say that the prosecution really should not talk to any witnesses in a PCRA matter." Krasner Deposition, 4/22/2020, at 20; see also id . at 53 ("there are a couple of cases, one of which instructs that there should not be consultation with the defense attorney by the prosecutor on a PCRA"). These statements undoubtedly refer to our decision in Commonwealth v. King , ––– Pa. ––––, 212 A.3d 507 (2019). There, we held that now-retired Philadelphia Court of Common Pleas Judge M. Teresa Sarmina did not abuse her discretion by barring the Commonwealth from privately interviewing the defendant's trial counsel under the unique circumstances of that case, which included "allegations that trial counsel refused to cooperate with [PCRA counsel] in preparation for an evidentiary hearing but, at the same time, counsel purportedly was cooperating with the Commonwealth's preparation for the same hearing." Id . at 514. On its face, King has no applicability here since McGill was the prosecutor , not Abu-Jamal's defense counsel . In any event, District Attorney Krasner's understanding of our holding in King even as it pertains to defense counsel is equally wrong, as our opinion expressly states that "nothing in the law specifically prohibits the Commonwealth from interviewing trial counsel when that counsel's representation of a PCRA petitioner is under scrutiny[.]" Id . at 513 ; see also id . at 518 (Mundy, J., concurring) (emphasizing "the holding should be narrowly construed based on the unique set of circumstances before us" and "not be read to stand for the proposition that the Commonwealth is generally prohibited from communicating with trial counsel in preparation for an evidentiary hearing").

6 Along similar lines, I observe the District Attorney has adopted an especially defensive posture to the instant judicial inquiry, including suggesting the motives behind it are improper. See id . at 2:24:23-2:24:37 ("this litigation itself is a delay"); id . 2:24:37-2:24:45 ("the instigation of these proceedings, frankly, I consider to be political"); see also Answer to King's Bench Petition at 35 (suggesting petitioner is trying to "thwart the will of the people" who elected the District Attorney). But in my view, far from being some sort of political witch hunt, the present proceedings have simply brought to this Court's attention viable claims of a serious conflict of interest that otherwise might have gone unnoticed — allegations which strike at the heart of our role as the ultimate authority over attorney conduct and the judiciary.

7 I fully agree with Justice Wecht that "[t]he fact that we, like others, might take personal offense to [District Attorney] Krasner's statements cannot play a role in our adjudicative function[,]" Concurring Statement (Wecht, J.) at ––––, and I stress that it has played no such role here. But we cannot just dismiss the District Attorney's remarks, either, as petitioner persuasively asserts they demonstrate an improper bias with respect to Abu-Jamal's case and those who have been involved with it.

In terms of the facts, there is actually some evidence in the record supporting the notion that George's screening from the Abu-Jamal litigation has been insufficient. See, e.g. , George Deposition, 4/20/2020, at 24 (asserting Abu-Jamal's case "would come up from time to time in conversation" though he would "immediately say I can't participate in this"); id . at 25 (expressing uncertainty regarding how many of the approximately sixty lawyers within the Law Division he had actually told about his screening); id . at 31 (admitting no restrictions have been imposed on his access to an office-wide electronic database of files). Moreover, as the following exchange makes clear, there was no formal policy in place regarding George's screening beyond his own self-policing:

Counsel: Do you know if anybody else in the DA's office was involved in making sure that the screening of you from the Abu[-]Jamal case was an effective screen?

George: I don't know.

Counsel: No one ever discussed it with you that they were part of the screening process or were monitoring the screening to make sure that it was effective?

George: No.

Counsel: Did you ever receive any written directive from anybody else in the DA's office regarding the steps you should take to be screened?

George: No.

Counsel: Or how most effectively to screen you?

George: No.

....

Counsel: Has anybody ever described for you what steps should be taken to effectively screen yourself from the Abu[-]Jamal case?

George: Not with respect to that particular case[.]

Id . at 27-28. While I recognize all DAO employees who testified in this matter uniformly stated they had no interaction with George regarding Abu-Jamal's case, and the Special Master found no reason to doubt those assertions, it does not alter the fact that the record reveals legitimate reasons to believe George's self-imposed screening procedure has been inadequate.⁸ I believe there is in any event substantial force to petitioner's claim that no level of screening is capable of removing George's conflict given that he "is directly involved with providing performance reviews for all members of the PCRA and Appeals Units, including those actively working on the current [Abu -]Jamal appeal[.]" Petitioner's Objections to Special Master's Report at 7 (emphasis in original). As petitioner correctly notes, there is some precedent suggesting that screening and transferring a case to a conflicted prosecutor's subordinates is not enough when the subordinate remains subject to the superior prosecutor's "guidance, control, and supervision." Commonwealth v. Eskridge , 529 Pa. 387, 604 A.2d 700, 701 (1992). And "[w]hile it is true that Eskridge ... involved conflicts of the elected district attorney," I believe petitioner forwards a viable argument that "the same rationale should apply to George given his high ranking role in the [ ] DAO and his continuing involvement in performance evaluations." Petitioner's Objections to Special Master's Report at 8. At a minimum, petitioner appears to have identified an issue of first impression ripe for judicial review.⁹

8 Justice Wecht asserts that I have "elect[ed] to forego the requirement that we afford factual findings ‘due consideration[.]’ " Concurring Statement (Wecht, J.) at –––– (citation omitted). I respectfully disagree. In point of fact, I have meticulously reviewed and considered all of the voluminous material contained in the record, including all testimony and every finding and recommendation made by the Special Master, as our de novo standard of review demands. But it is important to recall that Judge Cleland, pursuant to the wide discretion we afforded him, limited discovery in this matter to only four topics. See supra at ––––, citing Order, 4/7/2020, at 2. Notably, the implications of George's role as a current high-ranking DAO supervisor, when he was previously Abu-Jamal's counsel, was not one of them. I therefore believe that this issue — perhaps more than any other in this case — warrants the closer examination that this concurring statement has afforded it. The fact that I have undertaken such an intensive review of the record with respect to this claim, as we are required to do, obviously does not mean that I have failed to give Judge Cleland's findings the consideration to which they are entitled.

9 The fact that this allegation concerns a legal issue of first impression renders any deference to the Special Master's conclusions particularly ill-suited to the task. I note as well that Justice Wecht adopts the Special Master's conclusion that "ADA George worked in tandem with the DAO's ethics officer to ensure that no conflict of interest presented itself." Concurring Statement (Wecht, J.) at –––– – ––––. But the record actually undermines this purported finding, and highlights precisely why we cannot take lightly our responsibility to review the entire record de novo . See George Deposition, 4/20/2020, at 27-28 ("What happened with respect to this [Abu-]Jamal case, however, is that I'm the one that announced it within the first days of my taking my position before I even knew that Mr. Glazer [the ethics officer] was involved in monitoring and screening and so forth.").

To be clear, I acknowledge it is subject to reasonable debate whether any of the above circumstances (with the exception of George's conceded conflict) definitively proves an objective conflict of interest. Nor do I in any way mean to suggest that most discretionary actions taken by a district attorney's office should ordinarily be subject to judicial review. Cf. Commonwealth v. Buonopane , 410 Pa.Super. 215, 599 A.2d 681 (1991) (absent a finding of bad faith, the separation of powers doctrine requires courts to refrain from reviewing a prosecutor's discretionary acts). But, taken together, the circumstances surrounding this case paint a disturbing picture. When further considered alongside the ever-growing number of documented instances suggesting a dereliction of duty on the DAO's part with respect to other high-profile homicide cases, see, e.g. , Commonwealth v. Brown , 649 Pa. 293, 196 A.3d 130, 149 (2018) (rejecting DAO's improper attempt "to implement a different result [in a death penalty case] based upon the differing views of the current office holder"); Wharton v. Vaughn , No. 01-6049, 2020 WL 733107 (E.D. Pa., filed Feb. 12, 2020) (Goldberg, J.) (appointing the OAG to serve as amicus curiae due to the DAO's failure to independently investigate claim it sought to concede, and in light of doubt over whether the DAO had contacted the victim's family in accordance with its statutory obligations), one might easily see why petitioner fears District Attorney Krasner and his office are perhaps not capable of objectively serving the interests of the Commonwealth in Abu-Jamal's case. Notwithstanding all of this, I conclude our further intercession is not necessary at this time. This is because the procedural landscape of this case is almost certain to change due to a significant intervening development in the law. We recently decided Commonwealth v. Reid , –––– Pa. ––––, 235 A.3d 1124 (2020), wherein we held the Williams decision does not provide an exception to the PCRA's timeliness requirements, and that nunc pro tunc appeals reinstated pursuant to Williams are subject to sua sponte quashal. By all appearances, Abu-Jamal's case falls squarely in this category. Compare PCRA Court Opinion, 12/27/2018, at 13 (declaring it exercised jurisdiction over Abu-Jamal's facially untimely fifth PCRA petition because it found the holding in Williams "constitutes a newly-discovered fact that was previously unknown") with Reid , 235 A.3d at 1148 ("neither the Williams decision itself nor the legal conclusions contained therein constitute a new fact"). In fact, the reinstatement of Abu-Jamal's appellate rights in some ways appears to be even further beyond the pale than in Reid , as the PCRA court explicitly found "no evidence of record that shows that Castille was involved in a critical decision in [Abu-Jamal's] underlying case." Id . at 26. That being the case, Williams appears to be wholly inapplicable to Abu-Jamal, and thus could not possibly have supplied a basis for establishing jurisdiction in the PCRA court. See Reid , 235 A.3d at 1154 n.19 (limited rule "announced in Williams is that ‘under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case’ "), quoting Williams , 136 S.Ct. at 1905. See also Commonwealth v. Jones , –––– Pa. ––––, 239 A.3d 18, 19 (2020) (Donohue, J., concurring) ("Because Castille lacked involvement in the actual prosecution against Jones that resulted in the death sentence, Williams is not implicated."). I therefore see no pressing need for any additional action on our part at this stage.

Of course, it goes without saying that even once Abu-Jamal's presently pending appeal is resolved, a new round of post-conviction proceedings in his case will almost certainly follow, based on the material that was recently disclosed to him by the DAO. But unlike here, where petitioner had no remaining option but to resort to this Court's King's Bench jurisdiction, other statutory mechanisms for removing the DAO would be available in any future PCRA proceeding. For example, pursuant to Section 732-205 of the Commonwealth Attorneys Act, the President Judge of the Philadelphia Court of Common Pleas could, if she believed it proper, request the Attorney General's intervention. See 71 P.S. § 732-205(a)(5). Or the Attorney General himself could petition the PCRA court to permit the OAG to supersede the DAO. See 71 P.S. § 732-205(a)(4).¹⁰ And lastly, of course, District Attorney Krasner could simply refer the case to the OAG based upon "the potential for an actual or apparent conflict of interest on the part of the district attorney or his office." 71 P.S. § 732-205(a)(3). This latter path would undoubtedly alleviate all conflict concerns, remove the likelihood of further litigation on this issue, and advance the District Attorney's asserted desire for a fair, full, and expedient resolution of Abu-Jamal's claims.

10 The OAG implies a sense of hesitation with respect to invoking Section 732-205(a)(4) because the conflict alleged by petitioner has not manifested itself in a way that proves "the district attorney has failed or refused to prosecute[.]" 71 P.S. § 732-205(a)(4). See OAG's Reponses to King's Bench Petition at 6-7 n.2. This raises an interesting and novel issue which is likely worthy of further consideration by this Court at some future point. In any event, as I see things, even an unsuccessful petition filed by the OAG in the trial court would serve to place both the judiciary and the District Attorney on notice that the Attorney General believes there may be grounds for disqualification, which in turn would allow those parties to consider whether it might be appropriate to pursue one of the other statutorily-prescribed grounds for removal. See generally Commonwealth v. Mulholland , 549 Pa. 634, 702 A.2d 1027, 1037-38 (1997) (where trial court believes district attorney has a conflict, "the proper course of action [is] for the trial judge, through the president judge, to request the attorney general's intervention in accordance with the statutory provisions of the Commonwealth Attorneys Act").

D.

Judicial removal of a District Attorney, an elected constitutional officer, is never a small matter. Still, this Court has a constitutional imperative to "conscientiously guard the fairness and probity of the judicial process and the dignity, integrity, and authority of the judicial system[.]" In re Bruno , 101 A.3d at 675 ; see also Special Master's Report, 6/17/2020, at 23 ("Under unusual circumstances, a petition to remove a prosecutor in a given case because of the appearance of a conflict of interest may be appropriate."); Eskridge , 604 A.2d at 701 (prosecutor must be "an administrator of justice with his mind on the public purpose, not [ ] an advocate whose judgment may be blurred by subjective reasons") (internal quotations and citation omitted). Fulfilling that duty requires even more vigilance where the alleged prosecutorial bias is in favor of the defense, since the defendant naturally will be incentivized not to raise a conflict that operates to his benefit. See generally In Re Hickson , 573 Pa. 127, 821 A.2d 1238, 1245 n.6 (2003) (cautioning against allowing important issues to "escape judicial review entirely" where the parties would be disinclined to complain "as the conduct impacted them in a positive, rather than a negative, fashion"); Sprague v. Casey , 520 Pa. 38, 550 A.2d 184, 187 (1988) (judiciary must be cognizant of claims that are "likely to escape judicial review when those directly and immediately affected by the complained of conduct [are] beneficially affected as opposed to adversely affected").

Here, petitioner has exposed several grave and alarming allegations concerning District Attorney Krasner and his office's ability to act impartially in this case. While I do not believe that now is the appropriate time for this Court to further explore those serious and important claims, I do wish to reiterate a salient point raised by the Attorney General: only the courts have "the power to police attorney conflicts of interest so that they do not distort judicial proceedings." OAG's Response to King's Bench Petition at 6.¹¹ In other words, should the DAO seek to continue to represent the Commonwealth in this case, it may well be encouraging more exacting judicial review of that decision in the future.

11 It is true, as petitioner observes, see King's Bench Petition at 31-32, that "[a] district attorney shall be subject to the Rules of Professional Conduct and the canons of ethics as applied to judges in the courts of common pleas of this Commonwealth insofar as such canons apply to salaries, full-time duties and conflicts of interest." 16 P.S. § 1401(o) (emphasis added); see also Pa.C.J.C. 1.2 ("A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."). But as the OAG persuasively explains, "even the Disciplinary Board, which might in theory eventually review a claim of attorney misconduct, has no authority to remedy any damage to the underlying case." OAG's Response to King's Bench Petition at 6. It therefore falls upon the courts to police attorney misconduct, if possible, before such conduct taints the judicial process and prejudices the administration of justice.

JUSTICE WECHT, concurring

The present controversy centers upon claims by a murder victim's widow that an elected prosecutor is litigating the case in a duty-defying, defendant-friendly way. To advance these claims, Maureen Faulkner sought our rarely-deployed King's Bench jurisdiction. Following due consideration, we chose to invoke that power in a limited fashion. We decided that, under these exceptional circumstances, it was most prudent to appoint a special master for purposes of a proper inquiry. The Honorable John M. Cleland once again answered this Court's call, shouldering a substantial burden, and doing so in an expeditious and meticulous way. Judge Cleland conducted detailed fact-finding proceedings and arguments, soldiering on remotely as the COVID-19 pandemic raged and impeded ordinary court operations. It is difficult to find a similar set of circumstances in our Court's long history.

Nonetheless, despite these and other idiosyncratic features, this case, for purposes of resolution, is just like any other case. As in countless other disputes, there have been allegations, responses, petitions, discovery, depositions, submission of evidence, testimony, fact-finding, rulings, exceptions, and advocacy. All that we must do now is apply our appellate rules and decide the case. In cases predicated upon the exercise of our King's Bench jurisdiction, we must afford "due consideration" to supported factual findings, to which we then apply a de novo standard of review. Annenberg v. Commonwealth , 562 Pa. 581, 757 A.2d 338, 342-43 (2000). When that is done here, the outcome becomes obvious. The petitioner, Maureen Faulkner, did not prove her claims, and so we must dismiss her petition. Thus, I join today's order.

It is not unreasonable to characterize this as one of the most famous criminal cases in Pennsylvania history. In the almost forty years since Mumia Abu-Jamal's 1981 murder of Philadelphia Police Officer Daniel Faulkner, the case has generated impassioned debate. The merits of Abu-Jamal's murder conviction are not before this Court today. Nor are the facts underlying that conviction.

What is important here are Ms. Faulkner's claims that, since the election of Lawrence Krasner as District Attorney of Philadelphia, that office (the "DAO") has been conflicted, has not litigated the case with due vigor, and must be replaced by the Office of the Attorney General of Pennsylvania (the "OAG").

In 2016, Abu-Jamal filed a facially untimely Post Conviction Relief Act ("PCRA"),^{1 1} seeking relief based upon the United States Supreme Court's decision in Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016). The DAO, by that point led by DA Krasner, argued that Abu-Jamal was not entitled to relief. The PCRA court nonetheless ruled in favor of Abu-Jamal, restoring his appellate rights in connection with several prior appellate and post-conviction proceedings. The DAO did not appeal the ruling, and Abu-Jamal proceeded to file a consolidated notice of appeal in the Superior Court.

1 42 Pa.C.S. §§ 9541 -46.

1 This Court engages in de novo review of the Special Master's findings of facts and conclusions of law. See Concurring Statement (Dougherty. J.) at –––– – ––––.

While that appeal was pending before the Superior Court, DA Krasner found boxes of files related to Abu-Jamal's case that had not been provided to Abu-Jamal. Upon review of those files, Abu-Jamal's attorneys located a letter that they believed gave rise to a claim that a key Commonwealth witness may have been compensated for his testimony against Abu-Jamal. Abu-Jamal asked the Superior Court to remand his appeal to the PCRA court for consideration of the newly-discovered evidence. At that time, the DAO did not contact the trial prosecutor to investigate the letter or the claim. Instead, while taking no position on the merits of the issue or on the question of whether relief was due, the DAO decided not to oppose the remand request.

The DAO's decision not to appeal the PCRA court's ruling, and its decision not to oppose the remand, caused Ms. Faulkner to believe that the DAO was not defending Abu-Jamal's conviction with sufficient vigor, and prompted her to seek the DAO's removal. As Ms. Faulkner was not a party to the case, she filed a petition to intervene in the pending appeal. The Superior Court ultimately denied Ms. Faulkner's petition.

Ms. Faulkner then filed the King's Bench petition that is at issue here. Her belief that the DAO must be removed from the case rests upon several allegations that are undeniably troubling. Among those claims, Ms. Faulkner maintained that, by consenting to the remand of Abu-Jamal's appeal without at least speaking with the trial prosecutor, the DAO effectively refused to perform its duty to defend Abu-Jamal's conviction on appeal. Ms. Faulkner also addressed the personal and professional conduct of DAO employees that she insisted created conflicts of interests that prevented the DAO from advancing the Commonwealth's interests. First, she asserted that DA Krasner was personally biased in favor of Abu-Jamal based upon DA Krasner's statement that certain former DAO prosecutors were "war criminals." Ms. Faulkner also noted that DA Krasner at one time had been a member of the National Lawyers Guild, an organization that represented protesters in 2000, some of whom had expressed support for Abu-Jamal. Second, Ms. Faulkner highlighted distasteful social media posts from a DAO spokesperson, and also asserted that Jody Dodd, DA Krasner's assistant, was an active member of a pro-Abu-Jamal organization. Finally, Ms. Faulkner contended that, because Assistant Supervisor of the DAO's Law Division, Paul George, Esquire, had once signed a brief that criticized Abu-Jamal's conviction, ADA George's employment at the DAO compromised that office's ability objectively to litigate Abu-Jamal's appeals and PCRA proceedings. Ms. Faulkner contended that the conflict permeated the entire Law Division, and that ADA George could not adequately be screened off from the case.

Ms. Faulkner maintained overall that the DAO could not litigate the case in a fair and unbiased manner. She implored this Court to invoke our King's Bench jurisdiction, and to direct the OAG to take the case over from the DAO. This was an extraordinary request, and we concluded that a factual inquiry into the extraordinary allegations raised by Ms. Faulkner was warranted. Recognizing that this Court is ill-equipped to take evidence and find facts, we invoked our King's Bench jurisdiction and appointed Judge Cleland as special master. We directed him to "determine if the [DAO's] participation in the underlying criminal case ... presents the appearance of a conflict of interest such as to impede the fair and impartial administration of justice." Order, 3/3/2020, at 1. We conferred upon Judge Cleland substantial discretion over the proceedings, requiring only that he consider the claims that Ms. Faulkner raised in her petition to this Court and that he complete his task by June 1, 2020.

By any yardstick, Judge Cleland performed his duty with thoroughness, diligence, and skill. Judge Cleland focused the issues, guided the discovery and submission of evidence, and oversaw depositions and live (albeit remote, in view of the pandemic) testimony. Thereafter, Judge Cleland submitted a Report to this Court setting forth his factual and legal findings. In his Report, Judge Cleland determined that, based upon the evidence and testimony submitted, Ms. Faulkner "failed to establish the existence of a direct conflict of interest which compromises the ability of [District Attorney Krasner] or his assistants and staff to carry out the duties of his office." Report, 6/17/2020, at 1-2. Not only did Judge Cleland discern no actual conflict of interest; he concluded as well that Ms. Faulkner failed to establish "an appearance of impropriety that would compromise a reasonable person's confidence in the capacity" of the DAO to litigate Abu-Jamal's case. Id. at 2.

Judge Cleland recognized that the fulcrum of Ms. Faulkner's petition was the procedural decision-making that the DAO made recently in Abu-Jamal's criminal case: to wit, (1) the decision not to appeal the PCRA court's award of relief based upon Williams ; and (2) the decision not to oppose Abu-Jamal's petition for remand after the DAO uncovered new evidence and made it available to the defense. To evaluate the nature and circumstances of these decisions, Judge Cleland

interviewed, under oath, every person directly referenced in the King's Bench Petition as having some involvement in litigating the underlying PCRA matter and also reviewed their depositions, taken under oath. Some of those referenced testified that they had no involvement in the case. All witnesses having a role in the PCRA dispute, however, stated that it is their intention to defend the conviction, and that they are aware of no evidence that would support or justify a decision to the contrary or to concede any PCRA relief. In addition, [Judge Cleland] specifically questioned those people directly involved in making [the two key] decisions criticized in the King's Bench Petition.

Id. Based upon this evidence, and his attendant credibility determinations and findings of fact, Judge Cleland concluded that the DAO's decisions "rest[ed] on reasonable legal and strategic foundations." Id. Further, Judge Cleland emphasized that "no evidence has been presented that supports a finding that the District Attorney or his assistants do not intend to defend the conviction." Id.

In explaining his decisions, Judge Cleland focused upon nine "essential allegations." A brief review of each follows.

First, Judge Cleland evaluated Ms. Faulkner's assertion that the DAO had no reasonable justification for electing not to oppose Abu-Jamal's petition for remand. Two ADAs addressed the reasoning behind the DAO's concession, which Judge Cleland quoted at length in his Report. ADA Tracey Kavanagh explained that, when she was made aware of the newly-discovered materials, particularly the letter pertaining to the alleged payment to a material witness, she believed that a hearing likely would be required to ultimately resolve the issue. She had spoken to ADA McGill before the materials were uncovered and noted that he was getting older. In fact, he was in his late seventies. She knew that his testimony would be necessary at a hearing, and believed that, due to his advanced age, delaying the proceedings by insisting on interviewing him before the case was remanded could jeopardize the opportunity to get him on the witness stand and under oath. In short, she consented to the remand to expedite the matter to ensure that ADA McGill would be alive to testify. ADA Nancy Winkelman testified that there also was a procedural concern underlying the decision to agree to the remand. She believed that, if the newly-discovered evidence claim had merit (and it seemed to), the claim would have to await the end of the pending proceedings before it could move forward. That would mean having to litigate a sixth PCRA petition and any subsequent appeals. ADA Winkelman believed that it made more sense to stay the appeal and to take action on the new claim, for purposes of expediency and conservation of resources.

DA Krasner echoed ADA Winkelman's concern about how long the litigation would take if Abu-Jamal had to file yet another PCRA petition. He testified that it was "extremely concerning" that, after the pending appeal was concluded, the parties would have to return to the PCRA court for more fact-finding and more litigation, which could last another "three to five years." Id. at 13. DA Krasner wanted to integrate the issue into the pending proceedings, obtain any necessary factual determinations, and then litigate any ruling as part of the pending appeal before the appellate court.

Judge Cleland, implicitly crediting the testimony of these prosecutors, found that the DAO's decision to agree to a remand did not "lack merit," and that it was "arguably appropriate." Id. at 13 n.8. The judge found it pertinent that there had to be a factual determination to discern whether the material was, in fact, newly discovered, and, because the appeal was pending, the PCRA court lacked jurisdiction to make that finding. A remand was the only option to allow that fact-finding, and was "[i]n the interest of moving the case as expeditiously as possible" instead of forcing the issue to be addressed on "another, and long-delayed, day." Id. at 13. Thus, Judge Cleland found the DAO's decision to be reasonable.

Second, Judge Cleland addressed Ms. Faulkner's claim that the DAO at least should have interviewed ADA McGill, the trial prosecutor, before agreeing to a remand. Again, the judge relied upon ADA Kavanagh's testimony. She explained that, if McGill, who at the time was in his late seventies, became incapacitated, there would be no evidence to dispute Abu-Jamal's claim for a new trial. ADA Kavanagh knew ADA McGill to be a fair prosecutor with a good reputation, so she did not believe that he agreed to pay a witness. Having no such doubts, she found no immediate need to interview ADA McGill, particularly considering her concern that his age could compromise his availability at a future hearing.

ADA Kavanagh also explained that, at the time, there was a critical ruling that emanated from Philadelphia that she interpreted as prohibiting a prosecutor from interviewing attorneys in PCRA matters.² In an abundance of caution, and to avoid violating the perceived rule, ADA Kavanagh elected not to proceed in a piecemeal fashion, instead intending to conduct a full interview at a later date.

2 See Commonwealth v. King , ––– Pa. ––––, 212 A.3d 507 (2019). In King , we upheld the PCRA court's ruling preventing the prosecutor from interviewing defense counsel who had refused to be interviewed by the PCRA petitioner. Our decision was based upon the unique circumstances of that case. Our ruling in King does not in any way prevent prosecutors from interviewing any witnesses in PCRA proceedings, including fellow prosecutors.

Judge Cleland, again implicitly accepting ADA Kavanagh's testimony as credible, found that in "a high-profile case such as this, it cannot be disputed that an abundance of caution would be warranted." Id. at 14. The ruling in King , Judge Cleland opined, reasonably would cause any prosecutor to be "justifiably hesitant" before interviewing witnesses without court permission. Id. at 14-15.

Third, Judge Cleland turned to Ms. Faulkner's claim that ADA George permanently was conflicted based upon his prior involvement as an attorney for Abu-Jamal, as well as her assertion that no amount of screening could eliminate what was at the least an appearance of impropriety. It was not disputed that ADA George signed a brief for Abu-Jamal in 2007. However, Judge Cleland noted, ADA George testified that he merely signed the brief as local counsel, and that he had never met or spoken with Abu-Jamal. He conducted no legal research or analysis for the brief. Nor did he draft any part of the filing. ADA George explained that, by signing the brief, he was not agreeing with anything stated therein regarding the propriety of Abu-Jamal's conviction. His signature indicated only that he agreed that an evidentiary hearing was justified. Otherwise, ADA George had never advocated for, supported, or spoken on behalf of Abu-Jamal.

When hired as the supervisor of the Law Division, ADA George spoke with ADA Winkelman about the need to be screened off from Abu-Jamal's case. ADA George discussed the procedure with an ethics professional at the DAO, and has been walled off from the case. He receives no information about the case and does not discuss it with anyone. Judge Cleland pointed out that DA Krasner, ADA Winkelman, ADA Kavanagh, and ADA Grady Gervino all testified consistently that ADA George has been blocked entirely from participation in the case.

ADA Gervino pointed out that ADA George's employment by the DAO has not changed the DAO's position on Abu-Jamal's conviction. ADA Gervino explained that he has been an attorney with the DAO since 1995, and has worked on the responses to Abu-Jamal's appeals. He testified that the DAO's arguments regarding the case since the time that DA Krasner and ADA George joined the DAO have remained consistent with those advanced prior to their arrival. ADA Gervino emphasized that, over the decades, his defense of the conviction has been "vigorous" and that he had not been approached by anyone about how to litigate the case. He has "written the brief like I would any other brief in any other case." Id. at 18 (citation to notes of testimony omitted).

On this record, Judge Cleland found no evidence establishing a conflict of interest. And he found no cracks in the wall separating ADA George from the DAO's work on Abu-Jamal's case.

Next, Judge Cleland evaluated Ms. Faulkner's claims that Jody Dodd was a well-known supporter of Abu-Jamal and that Dodd's employment with the DAO evinces an appearance of impropriety. When Dodd and DA Krasner worked in the private sector, they both interacted with entities that directly or indirectly intersected with Abu-Jamal's cause. However, Judge Cleland concluded that, aside from some flyers that listed DA Krasner and Dodd as persons that protesters could contact for legal assistance in connection with the 2000 Republican National Convention (flyers that were circulated some twenty years earlier), "there is no evidence supporting an argument that Dodd has participated in any meaningful way in efforts to support Abu-Jamal or that could be deemed to undermine the efforts of the DAO to uphold his conviction." Id. at 19-20. Judge Cleland also noted that Dodd has played no role in the PCRA litigation: "[s]he is not an attorney, and there is no evidence that she has discussed the case with any of the attorneys involved on behalf of the DAO." Id. at 20. Next, Judge Cleland addressed Ms. Faulkner's contentions that two individuals intimately associated with the DAO and DA Krasner created a pro-Abu-Jamal atmosphere in the DAO that gave rise to an incurable conflict of interest. Those individuals are Patricia McKinney, Esquire, a criminal defense attorney who DA Krasner hired as a DAO supervisor, and Michael Coard, an attorney who espoused controversial views about policing and prosecuting crime and who served on DA Krasner's transition team after DA Krasner won election. DA Krasner testified that he had never spoken to McKinney about Abu-Jamal, and that he had never expressed any doubts to her about Abu-Jamal's conviction. In endorsing Krasner for District Attorney in 2017, Coard had stated: "everything I support Larry Krasner supports." Id. at 20. In view of this, Judge Cleland asked DA Krasner specifically if he told Coard that Abu-Jamal's conviction was improper or should be overturned. DA Krasner testified "no." Ms. Faulkner offered no evidence to rebut this testimony, which Judge Cleland proceeded to credit.

Judge Cleland found no actual conflicts of interests regarding McKinney and Coard, concluding that Ms. Faulkner's claim that DA Krasner's relations with them posed an appearance of impropriety was "simply not persuasive." Id. at 20. To the extent that ADA George's prior work indicated support for Abu-Jamal, that engagement occurred some thirteen ago, and "Coard's endorsement, in the midst of a political campaign that generated multiple endorsements, is simply too tenuous to raise the concern of an impropriety." Id. at 20-21

Ms. Faulkner further alleged that DA Krasner's representation of individuals some twenty years ago who supported Abu-Jamal and were arrested for protesting the 2000 Republican National Convention, and his involvement with the National Lawyers Guild (which listed Abu-Jamal as a member of its Board of Directors), created a conflict of interest. Judge Cleland deemed this argument "somewhat obscure." Id. at 21. At the hearing, Ms. Faulkner's counsel maintained that membership in the same organization as Abu-Jamal sufficed to give rise to a conflict. In response, DA Krasner stated that he never paid dues to the National Lawyers Guild.

Judge Cleland again found the connections too tenuous to sustain Ms. Faulkner's claim. "Even if [DA] Krasner was a member of a large national professional organization, mere association with the organization, or one of its directors, is hardly proof of a conflict of interest." Id. Judge Cleland also held that DA Krasner's professional representation of individuals arrested during protests "does not identify him with the causes for which the clients were protesting." Id.

Next, Judge Cleland assessed the claim that DA Krasner's alleged pro-Abu-Jamal mindset affected the litigation of the case on behalf of the Commonwealth. In his Report, Judge Cleland quoted an exchange between him and DA Krasner, during which the judge pointedly asked DA Krasner if he believed Abu-Jamal was guilty. DA Krasner stated, "Sir, in my opinion based upon all the facts in law [sic ] that I have is that he is guilty." Id. at 22 (citation to notes of testimony omitted). Judge Cleland then asked if DA Krasner had "any personal doubts" about Abu-Jamal's conviction, to which DA Krasner responded: "No. Based on all the facts in law [sic ] known to me, no, I do not." Id .

Judge Cleland observed that "District Attorney Krasner and his assistants have followed the same strategy and defended the case in the same manner as prosecutors before him have done for 30 years." Id. Judge Cleland noted that the testimony of DA Krasner and ADAs Kavanagh, Winkelman, Gervino and Goode was "consistent" in this regard. Id.

Finally, Judge Cleland weighed the cumulative effect of DA Krasner's past political and professional activities, and examined whether those activities in the aggregate could lead to a reasonable question as to DA Krasner's ability to litigate this case in an unbiased manner on behalf of the Commonwealth. Judge Cleland observed: "It is, of course, beyond dispute that Krasner, as a so-called progressive prosecutor, is in some quarters a polarizing figure in a polarized political environment." Id. at 23. DA Krasner's role requires him to make decisions that give rise to criticism, debate, and concern: "If one were to judge him based on the cumulative effect of criticism from his detractors, one might have an understandable concern about his devotion to prosecutorial priorities." Id. Nonetheless, Judge Cleland emphasized, his focus, as we directed, was upon "one special case:" Abu-Jamal's. Id. "A perception based on the arguments of detractors cannot overcome the actual and undisputed fact that [Ms. Faulkner] has presented no evidence that [DA] Krasner or his assistants have not defended the conviction of Mumia Abu-Jamal or do not intend to do so in the future." Id. Judge Cleland concluded: "no credible argument has been made that [DA] Krasner and his assistants have adopted legal positions or legal strategies that do not have arguable merit or are not supported in law based on the facts." Id.

Judge Cleland acknowledged that, in "unusual circumstances," removal of a conflicted prosecutor "may be appropriate." Id. To obtain that extraordinary remedy, "the burden should be on the objector to support such a course by presenting more than predictions based on suspicions." Id. Ms. Faulkner did not do so. Thus, Judge Cleland recommended that her King's Bench petition be denied.

And so the case has returned to this Court. Our analysis is straightforward, the result inescapable. We apply the settled standards of review, and we rule upon Ms. Faulkner's pending King's Bench petition. Those standards are familiar. A fact-finder may believe all, part, or none of the testimony or evidence, and is tasked with evaluating the credibility of the witnesses. As noted, while we are not ineluctably bound to or by Judge Cleland's fact-findings, we must give them "due consideration." Annenberg , 757 A.2d at 343. In my view, there is no valid or compelling reason in this case to ignore Judge Cleland's findings, as he was, after all, in the best position to view the witnesses and make credibility findings.

This Court correctly dismisses Ms. Faulkner's petition. On the record before us, the law affords us no other choice. Judge Cleland's factual findings are supported by the record, and each of his recommendations that derived from those findings is reasonable and correct based upon the evidentiary record. As required by law, Judge Cleland placed the burden upon Ms. Faulkner, as petitioner, to demonstrate the necessity of the DAO's removal. On the record developed, he then determined that she failed to satisfy that burden. Judge Cleland emphasized Ms. Faulkner's failure to present evidence that would support her allegations or would undermine the credible testimony of the relevant witnesses. A record such as this properly allows for only one outcome: dismissal of the petition. The facts, as found by Judge Cleland, permit no other result as a matter of law.

The dearth of evidence in the record to support Ms. Faulkner's allegations does not deter my learned colleague, Justice Dougherty, with whose perspective I respectfully disagree. Justice Dougherty elects to forego the requirement that we afford supported factual findings "due consideration," see Annenberg , 757 A.2d at 343, and chooses instead to ignore those findings and reach his own conclusions. Notwithstanding the broad prerogatives attendant to our review at King's Bench, this approach strikes me here as unwise and in any event unavailing. It is axiomatic that we afford due consideration to fact-finders, because "the jurist who presided over the hearings was in the best position to determine the facts." Id . I see no reason not to give Judge Cleland's findings their due consideration.

To be sure, I share some of Justice Dougherty's concerns, particularly regarding DA Krasner's profoundly outrageous and deeply offensive use of the term "war criminals" in reference to some former prosecutors.³ However, my personal feelings about a party's actions are irrelevant to my role in resolving a particular case. As in all cases that come before us, our duty requires us to put our individual beliefs aside, and to evaluate legal claims according to the applicable standard of review and based upon the factual and procedural record submitted to the Court.⁴ The fact that we, like others, might take personal offense to DA Krasner's statements cannot play a role in our adjudicative function.

3 I note as well that the beyond-the-pale nature of DA Krasner's slur was aggravated further by DA Krasner's apparent statement that these "war criminals" had fled to "Paraguay," a hateful suggestion that served to liken the OAG to a country that harbored Nazi war criminals following World War II. See Chris Brennan, Philly DA Larry Krasner Clashes with Pa. AG Josh Shapiro — Again — Over Alleged Power Grab , Philadelphia Inquirer (Aug. 9, 2019); Benjamin Lerner, By Publicizing Distasteful "Office Joke," DA Larry Krasner Crossed an Ethical Line , Philadelphia Inquirer (Aug. 14, 2019).

4 Those aggrieved by DA Krasner's statements or actions may seek recourse in disciplinary fora or in the political realm that boils and bubbles entirely outside the world of this Court.

When Ms. Faulkner filed her initial petition here, it was filled with allegations. Mere allegations can be troubling, and can sometimes provoke courts to take extraordinary actions. Indeed, here, Ms. Faulkner's allegations alone sufficed to warrant a temporary invocation of our King's Bench jurisdiction and to provide her with a rare opportunity to prove her claims to a fact-finder. I fully supported our decision to afford her that chance. However, when given the opportunity to provide evidence that would elevate her allegations into actionable legal claims, Ms. Faulkner failed. Judge Cleland simply found no evidence to support her claims.

Thus, Ms. Faulkner's claims currently stand in the same posture as when they were initiated. They were allegations then, and, for an appellate court's purposes, they remain allegations now. They were not proven.

Although it appears that Justice Dougherty has concurred (albeit reluctantly) in today's judgment, he chooses not to afford Judge Cleland's findings and the established evidentiary record their "due consideration". Where the record contains no proof, Justice Dougherty discerns what he calls "a colorable showing." Conc. Stmt. at ––––. Where Judge Cleland found "[n]o credible argument," Report, 6/17/2020, at 23, that the DAO adopted legal positions that undermine its duty to defend Abu-Jamal's conviction, Justice Dougherty finds "questionable" legal strategies. Conc. Stmt. At ––––. Where the record demonstrates that Ms. Faulkner failed to "establish the existence of a direct conflict of interest ... or the appearance of an impropriety," Report, 6/17/2020, at 1-2, Justice Dougherty insists that Ms. Faulkner "has identified a number of circumstances that strongly suggest a less blatant conflict of interest does in fact exist." Conc. Stmt. at ––––.

The flaw in Justice Dougherty's conclusions is that they have no more evidentiary support than Ms. Faulkner's initial claims. For instance, Justice Dougherty "questions" the DAO's decision to decline to appeal the PCRA court's decision restoring Abu-Jamal's appellate rights based upon Williams . Justice Dougherty is troubled by the fact that the DAO has never explained its reason for this decision Not only did Judge Cleland find that the DAO has not deviated from that office's overall strategy for decades, but there is no proof in the record that the DAO possessed some improper motive for choosing not to appeal. In fact, the credited evidence suggests no ill-intent in the way that the DAO has handled the case.

Justice Dougherty also finds the DAO's concession to a remand while Abu-Jamal's appeal was pending to be "questionable." Id. at ––––. To support his belief that the DAO's decision concerning remand points toward a pro-Abu-Jamal litigation strategy, Justice Dougherty asserts that the remand may have contravened the appropriate procedure when newly-discovered evidence is uncovered while a case is on appeal. Justice Dougherty finds it "disconcerting" that a prosecutor could ever agree to a course of action that may not fit within that procedure. Notably, as referenced above, each of the prosecutors that participated in the decision explained the multi-faceted reasoning behind the decision. Justice Dougherty selects one line from DA Krasner's deposition, one not repeated or credited by Judge Cleland in his factual findings, and ignores entirely the credited statements of ADA Kavanagh and ADA Winkelman, as well as Judge Cleland's conclusion that the DAO's approach was a reasonable strategic decision based upon the circumstances presented to those prosecutors.

Justice Dougherty then turns to DA Krasner's statement that certain prosecutors are "war criminals." As noted, I share Justice Dougherty's view that DA Krasner's statement is "highly offensive." Id. at ––––. It is indeed that, and more. My personal feelings, however, are not at all relevant to the task at hand, nor can they be a substitute for the absence of record evidence.

Next, Justice Dougherty focuses upon ADA George's role in this matter, who Justice Dougherty believes cannot be screened off adequately from Abu-Jamal's case so as to eliminate any appearance of impropriety. Judge Cleland examined this issue closely, evaluated the testimony and depositions, implicitly made the necessary fact-finding, and concluded that ADA George had been adequately walled-off from the case. Judge Cleland found "no evidence that [ADA George] has been involved in making or influencing any legal or strategic decisions." Report, 6/17/2020, at 15.

In reaching this conclusion, Judge Cleland highlighted numerous statements and assurances made by ADA George during his actual testimony. Judge Cleland also noted that ADA George worked in tandem with the DAO's ethics officer to ensure that no conflict of interest presented itself. ADA George consistently explained that he is not involved in Abu-Jamal's case in any way. Judge Cleland specifically found that ADA George's exclusion from the litigation of the case was confirmed and corroborated by undisputed testimony from DA Krasner and ADAs Winkelman, Kavanagh, and Gervino. Justice Dougherty disregards all of this evidence, and instead proceeds to scour the record in a quest for evidence that ADA George in fact was not adequately being screened from the case. The resulting "evidence" does not undermine Judge Cleland's ruling. For instance, Justice Dougherty cites ADA George's statement in his deposition that "from time to time" Abu-Jamal's case would come up in office conversation. Conc. Stmt. at ––––. As Justice Dougherty notes, ADA George explained that, when this happened, he "immediately" removed himself from any participation in the conversation. Id. Inadvertent references to Abu-Jamal may be unavoidable, and may occur within ADA George's earshot. That does not mean that the DAO has not adequately screened him from the case. Rather, ADA George's immediate removal from the situation demonstrates that a wall has been erected and that he respects it. There is no evidence to the contrary. And it is evidence that Ms. Faulkner was called upon to present.

To prove the existence of a conflict nonetheless, Justice Dougherty seizes upon what ADA George does not know. ADA George admitted in a deposition that he did not know how many lawyers in the DAO knew about the wall separating him from Abu-Jamal's case. In live testimony, ADA George stated that he did not know if anyone else was making sure the wall was maintained, that there was no formal writing establishing the screening protocol, and that no one ever told him what procedures were most effective to protect the barrier.

Judge Cleland was acutely aware of all of this information and more. Judge Cleland made the relevant credibility findings, and found that a wall had been established and was effective. These conclusions and derivative recommendations are supported by the record. We should not disregard them.

Despite our obligation to afford the fact-finder's conclusions "due consideration," and despite recognizing that all of the DAO prosecutors who are actually litigating the case "uniformly" testified that they did not speak of it to ADA George, and despite admitting that Judge Cleland had "no reason to doubt" these assurances, Justice Dougherty still insists that the record "reveals legitimate reasons" to believe that the screening process has been "inadequate." Conc. Stmt. at ––––. Justice Dougherty also finds "substantial force" in Ms. Faulkner's claim that no amount of screening would suffice to remove any alleged conflict of interest. When considered together, and in conjunction with other alleged instances of the DAO's purported "dereliction of duty" that are not before us and were not before Judge Cleland, Justice Dougherty believes that "the circumstances surrounding this case paint a disturbing picture," id. at ––––, such that "one might easily see why" Ms. Faulkner believes that DA Krasner and his assistants are perhaps not capable of objectively serving the interests of the Commonwealth. Id. The problem is that the "disturbing picture" that Justice Dougherty sees is not the one that was painted for the fact-finder in this case. The image that Justice Dougherty perceives rests upon allegations, but not upon any of the facts of this case. Judge Cleland found no facts to support Ms. Faulkner's claims, and we owe that finding "due consideration." It should not be cast aside simply because the allegations made in the case are troubling or disturbing. From that empty bucket, Justice Dougherty somehow nonetheless finds paint to compose a "disturbing picture." However vast our authority in cases such as this one is, our standard of review still does not permit such creations. Ultimately, Justice Dougherty joins the Court's order dismissing Ms. Faulkner's petition, not because the record mandates the result, but because he believes that a recent decision by a special panel of this Court in Commonwealth v. Reid , ––– Pa. ––––, 235 A.3d 1124, 1148 (2020) (holding that Williams cannot serve as an exception to the PCRA's time limit),⁵ effectively will terminate this case on jurisdictional grounds. Perhaps in some future proceeding, a court will have occasion to consider the issue of jurisdiction regarding Abu-Jamal's present appeals. But, here and now, before this Court, we address a King's Bench petition, not Abu-Jamal's underlying criminal case. The reason that the petition is being dismissed has nothing to do with the jurisdictional proprieties of Abu-Jamal's’ case. Ms. Faulkner's petition is being dismissed because she raised a litany of allegations, but was unable to prove any of them.

5 In Reid , I joined Justice Donohue's compelling dissent as, like her, I believe that Williams must apply retroactively to defendants in whose cases former Chief Justice Castille participated as both a prosecutor and a Justice of this Court. Reid , 235 A.3d at 1171 (Donohue, J., dissenting).

Justice Mundy's dissent fares no better. Like Justice Dougherty, Justice Mundy elects to premise her analysis upon Ms. Faulkner's allegations, ignoring the fact record as it now stands and the decisions that Judge Cleland made based upon that record. As opposed to Justice Dougherty, Justice Mundy would resolve the matter now instead of awaiting a future ruling based upon Reid . However, like Justice Dougherty, Justice Mundy makes no serious attempt to explain if, or how, Judge Cleland's fact-finding was undeserving of our "due consideration." Annenberg , 757 A.2d at 343. Consequently, Justice Mundy's position fails for the same reasons that undercut the position advanced by Justice Dougherty.

Adhering to our standard of review, there can be only one outcome to this case. Ms. Faulkner has not proven her claims, and we must dismiss her petition. However "grave and alarming," Conc. Stmt. at ––––, her allegations may be, they remain just that: allegations. I join the Court's order.

JUSTICE MUNDY, dissenting

I respectfully dissent from the per curiam order dismissing the King's Bench petition filed by Maureen Faulkner.

On March 3, 2020, this Court issued an order stating, in relevant part:

The special master shall conduct such hearings or other proceedings ... as may be required to determine if the participation in the underlying criminal case (Commonwealth v. Wesley Cook, a/k//a Mumia Abu-Jamal , No. 290 EDA 2019, CP-51-CR-0113571-1982) by any attorneys or staff of the Philadelphia District Attorney's Office who have been identified in the King's Bench Petition presents the appearance of a conflict of interest such as to impede the fair and impartial administration of justice.

Order, 3/3/20.

Unlike my colleagues, I conclude that the record before us establishes an appearance of impropriety that warrants transferring this case from the District Attorney's Office (DAO) to the Office of the Attorney General (OAG). Section 1401(o) of the County Code provides, in relevant part, that "[a] district attorney shall be subject to the ... canons of ethics as applied to judges in the courts of common pleas of this Commonwealth insofar as such canons apply to ... conflicts of interest." 16 P.S. § 1401(o). Rule 1.2 of the Code of Judicial Conduct provides: "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." Pa. Code Jud. Conduct Rule 1.2. Comment 5 to Rule 1.2 provides, in relevant part: "The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's ... impartiality[ ]" Pa. Code Jud. Conduct Rule 1.2 cmt. 5.

Because Justice Dougherty has accurately and concisely set forth the factual and procedural history of this high-profile case in his Concurring Statement, I will not repeat them here. Like Justice Dougherty, I am troubled by the DAO's decision to withdraw its appeal from the order reinstating Abu-Jamal's appellate rights nunc pro tunc , and its concession to a remand without having interviewed Joseph McGill, the trial prosecutor who had personal knowledge of the facts on which the remand was, in part, based. Also concerning, as Justice Dougherty points out, are District Attorney Krasner's reference to former prosecutors as "war criminals," and the existence of evidence in the record that Paul George, Assistant Supervisor of the DAO's Law Division, who represented Abu-Jamal in the past, was not adequately screened from the instant matter.

With respect to Attorney George, I find it particularly significant that "in 2007, [Attorney] George signed as local counsel an appellate brief filed on behalf of Abu-Jamal." Special Master's Report, 6/17/20, at 15. The Special Master notes that Attorney George testified he did not write the brief, and has never met or spoken to Abu-Jamal. However, the Special Master acknowledges the "brief alleges a variety of police misconduct in the Abu-Jamal case." Id . The fact that an attorney who represented Abu-Jamal has a supervisory position in the Division of the DAO that "oversees the PCRA Unit and the Appeals Unit," id ., raises serious questions as to whether he could ever have been effectively screened from this matter in light of his responsibility for performance reviews of prosecutors involved in this case. See Concurring Statement (Dougherty, J.) at –––– – ––––.

Even accepting the Special Master's conclusion that no actual conflict of interest existed due to Attorney George's signing of a brief, I conclude that the appearance of impropriety still exists. Viewed from the perspective of a reasonable non-lawyer citizen, Attorney George acted as an advocate for Abu-Jamal when he signed the brief as local counsel. This, combined with Attorney George's current supervisory role in the DAO (despite efforts to screen him from the matter), creates such an appearance because under these circumstances a reasonable person would conclude that the DAO's conduct adversely reflects on its impartiality. See Pa. Code Jud. Conduct Rule 1.2 cmt. 5.

So too does District Attorney Krasner's use of the outrageous term "war criminals" when referring to former prosecutors who worked on this case. Such words are particularly disturbing in the context of a matter that has garnered worldwide notoriety, and has become central to public debate on several issues, including the death penalty. The Explanatory Comment to Rule of Professional Conduct 3.8 (Special Responsibilities of a Prosecutor) provides that "[a] prosecutor has the responsibility of a minister of justice[.]" Pa.R.P.C. 3.8 cmt. 1. While the focus of the comment is on the prosecutor's obligation to respect the rights of a defendant, the responsibility of a minister of justice surely includes the obligation of a prosecutor to refrain from making baseless and inflammatory remarks regarding former DAO attorneys. This is especially so where it is the District Attorney himself who has made the untoward statements.

I believe that the actions discussed above, viewed as a whole, would lead a reasonable person to perceive that the District Attorney and the DAO are unable to handle matters related to Abu-Jamal impartially. Accordingly, public confidence in the rule of law requires the involvement of the DAO in this matter to cease.

In his Concurring Statement, Justice Dougherty notes that in light of our recent decision in Commonwealth v. Reid , ––– Pa. ––––, 235 A.3d 1124 (2020), there is "no pressing need for any additional action on our part at this stage." Concurring Statement (Dougherty, J.), at ––––. However, considering that we are now reviewing a case that began in 1981, and that has been the subject of seemingly endless litigation, I can only assume that more will follow.

Although the Special Master came to a different conclusion, I believe the factual record developed in the instant proceeding supports removal of the DAO due to the appearance of a conflict of interest.¹ Furthermore, I would remove the DAO now rather than revisit the issue in the future as suggested by the Concurring Statement. Id .

The District Attorney having offered no compelling reason to the contrary, I would appoint the OAG to assume representation of the Commonwealth. This would allow the case to proceed free from the appearance of impropriety that undermines our citizenry's faith in the legal system.

Accordingly, I dissent.