for BigTrial.net
Against all logic, as well as the law, District Attorney Larry Krasner has persisted in waging a petty feud that's resulted in the transfer of a Common Pleas Court judge who, for the previous four years, had a record of disposing of the most cases not only at the Criminal Justice Center, but also in the entire state.
As a result of the feud, Judge Scott DiClaudio, who previously was disposing of some 40 cases a week, many involving nonjury trials, is being moved to another courtroom where, because of restrictions imposed by the coronavirus, he'll be limited to handling one jury trial every eight weeks. The other result of the feud -- the D.A. has added more than a hundred completely unnecessary jury trials to a court system already overburdened with a record backlog caused by a continuing shut down of more than five months.
"This is really outrageous," said former Common Pleas Court Judge Benjamin Lerner, who retired in January after 21 years on the bench, after previously serving as Philadelphia's chief pubic defender.
"By continuing to pursue this path, which is entirely based on personal pique," Lerner said, "what the D.A.'s office really does is trample on the rights, not only of defendants, including incarcerated defendants, to a speedy trial, but also trample on the rights of crime victims and witnesses."
Krasner went to court last year and repeatedly lost a legal battle to get DiClaudio removed from presiding over any cases brought by the D.A.'s office because of an alleged conflict of interest involving DiClaudio's domestic partner.
Former Assistant District Attorney Catherine Smith had filed a racial discrimination complaint against Krasner, after he fired her on Feb. 9, 2019. In the complaint filed with the Equal Employment Opportunity Commission, a complaint that's normally private until it was voluntarily disclosed by Krasner, Smith alleged that Krasner fired her because she's white. The D.A., however, described the mass personnel changes in the D.A.'s office as part of his desire "change the demographics of law enforcement."
None of the principals in this matter are talking.
As is customary, neither D.A. Krasner nor his alleged spokesperson, Jane "The Mute"Roh, responded to a request for comment.
Judge DiClaudio did not respond to several requests for comment.
Before he went to court, Krasner tried to get DiClaudio to recuse himself. But when the judge refused, on April 11, 2019, Krasner appealed to the state Superior Court. The irony is that before he filed suit, Krasner's D.A.'s office had never alleged that DiClaudio had ever been unfair to any defendant, or the D.A.'s office, or any of its prosecutors.
It was a controversy aired last year in Judge DiClaudio's courtroom.
"I mean it's quite clear under the law that a [judge] does not have to say, "I can't be fair," argued Assistant District Attorney Paul George, who's assistant supervisor of the D.A's Law Division, in an April 9, 2019 appearance in Judge DiClaudio's courtroom.
"What it [the law] does do is say that the appearance of a conflict, of an impropriety, does exist whenever somebody's who's very close to a judge is suing one of the litigants who's appearing in front of that judge," George said.
Judge DiClaudio asked George if it was his boss's opinion "that I cannot be fair?"
"He's saying that there's an appearance of impropriety," George responded.
DiClaudio then asked George if the D.A.'s office "could point to any case or any matter, any motion or any minute" in the four years he'd been a judge "that they [the D.A.'s office] believe I appeared to be unfair."
"I cannot," George responded.
When he went to court, Krasner lost big time. In a unanimous Oct. 16, 2019 opinion, Superior Court Judge John Bender wrote, "In sum, we conclude that it belies reason to suggest that Judge DiClaudio would favor a criminal defendant, or disfavor an individual assistant district attorney working for the district attorney's office, based solely on [Smith's] filing of the racial discrimination charge."
As to any appearance of a conflict of interest, Judge Bender wrote, "Only the most unreasonable and cynical layperson could harbor such a suspicion based on the mere possibility of future litigation by a relative of Judge DiClaudio . . . We are loathe to speculate as to what additional circumstances would cause a reasonable person [or layperson] to doubt Judge DiClaudio's impartiality in all matters involving the district attorney's office."
After the state Superior Court ruling, Judge DiClaudio was ready last November to preside once again over nonjury trials brought by the D.A.'s office. But the D.A.'s office again sought DiClaudio's recusal, announcing in court that Krasner was appealing the state Superior Court's decision to the state's highest court. But on April 14th, the state Supreme Court subsequently denied Krasner's petition.
Undaunted, on three occasions this month, Krasner has sent his assistant district attorneys into DiClaudio's courtroom, where the D.A.'s office had previously agreed to try more than 100 cases in nonjury trials before DiClaudio, and requested jury trials in every one of those 100 cases.
For the past six months, the D.A.'s office has even refused to dispose of negotiated guilty pleas before Judge DiClaudio, plea deals that have already been agreed to by both sides. In addition, sources say, in going ahead with his feud, Krasner overruled the recommendations of the most senior lawyers on his own staff.
In an interview, retired Judge Lerner said he couldn't understand why Krasner was continuing to pursue the feud with DiClaudio "which never made any sense from the beginning, and was firmly rejected by the entire appellate process in Pennsylvania."
Lerner said he also didn't understand why Judge Leon Tucker, the supervising judge in the First Judicial District, had decided to transfer DiClaudio effective next month to another courtroom, 1001, in the Major Trial Division.
Lerner described Judge Tucker as somebody for "whom I have a lot of respect and warm personal feelings for." But Lerner said he didn't understand "the court's unwillingness to speak out when one of their judges is so clearly in the right here and another actor in the criminal justice system [Krasner] is so clearly in the wrong."
Judge Tucker did not respond to a request for comment.
On Sept. 8th, when the courts are scheduled to reopen, Judge DiClaudio will be leaving Courtroom 905 at the CJC. It's one of four SMART [Strategic Management Advance Review] courtrooms specially equipped for video conferencing.
By relegating DiClaudio, who was disposing of more than 300 nonjury trials a month, to doing a jury trial every eight weeks, "it has an adverse effect on the entire system," Lerner said. "That's bad for everybody."
When the courts reopen in September, because of the coronavirus, instead of bringing in a pool of 300 potential jurors every week, the courts will be bringing in only 80.
Defense lawyers who were reluctant to be publicly identified, described the transfer of Judge DiClaudio as a waste of judicial resources.
DiClaudio "has proven himself to be an extremely fair and extremely efficient judge," said one defense lawyer. "In his courtroom, I win the ones I'm supposed to win and lose the ones I'm supposed to lose," the lawyer added. "Isn't that the way it's supposed to be?"
"What Larry's really doing with this tactic is depriving people he publicly says he cares so much about to their right to a speedy trial."
Said another defense lawyer, "With the coronavirus and the backup, don't we want to expedite justice? Wouldn't that be a good idea to help defendants? Everybody should let it go. Can't we be bigger than this?"
The defense lawyer added that DiClaudio was a judge who was not only popular with prosecutors, defense lawyers, and fellow judges, but also with the people he pronounces judgment on.
"It's amazing to me that defendants believe he's fair," the defense layer said.
There's one last angle to the story about the impending transfer of Judge DiClaudio. The Philadelphia Inquirer had the story but declined to publish it after editors decided it wasn't a story.
It's yet another decision by the so-called paper of record to cover for Krasner, a fellow Democratic progressive.
Both the reporter involved in the story and her editor did not respond to requests for comment.