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for BigTrial.net
In indicting and prosecuting former Police Chief Inspector Carl Holmes, District Attorney Larry Krasner failed to disclose a personal conflict of interest in the case -- namely that Krasner as a defense lawyer in 1996 represented the convicted robber of a 7-11 who pointed his gun at Holmes, and was convicted of assaulting him.
Krasner also represented Christopher Butler, the convicted robber who was sentenced to 6 to 12 years, in a civil suit against the city that was settled in 1997 for $80,000.
As a result, Greg Pagano, Holmes's lawyer, filed a motion in Common Pleas Court to disqualify Krasner as prosecutor. The motion to disqualify Krasner as prosecutor because of Krasner's undisclosed conflicts came on the same day that Judge Kai Scott dismissed the second of three sex abuse cases filed against Holmes by three women who are former cops.
"Philadelphia District Attorney, Lawerence Krasner, failed to notify this Court, Supervising Grand Jury Judge, the investigating grand jurors and defense counsel of his role in the criminal trial, post-trial, criminal appeal and civil cases, directly related to the testimony and credibility of Carl Holmes," Pagano wrote.
"Under the Pennsylvania Rules of Professional Conduct, DA Krasner has a duty to disclose that which is material to a defendant’s innocence. Mr. Krasner’s role as defense counsel to Mr. Butler in criminal and civil proceedings, attacking Mr. Holmes’ credibility and police work constitutes Brady/Giglio material," Pagano wrote.
The case against Holmes has already been marked by prosecutorial misconduct in the D.A.'s office.
In January, Philadelphia Common Pleas Court Judge Karen Simmons admonished Assistant District Attorney Rachel Black for a lack of candor regarding the ability of one of the complainants to show up in court to testify against Holmes.
Judge Simmons caught ADA Black telling a bald-faced lie -- that a complaining witness who had accused Holmes of sexual abuse couldn't appear in a Philadelphia courtroom because she had serious health problems and was supposedly hiding out in Florida, in fear of catching COVID.
The truth was that the witness herself, Elisa Diaz, in one Facebook post after another, had dismissed the pandemic as a hoax and a sham. She had previously driven from Pennsylvania down to Florida in a fully equipped RV, and so she was perfectly capable of driving back up to Philadelphia to testify in court.
"Miss Black's actions were inappropriate, they were wrong, they were intentional," Judge Simmons stated in court to two of ADA Black's supervisors on Jan. 13th. One of those supervisors who came to court to defend ADA Black was her boss, Assistant District Attorney Patricia Cummings, head of the D.A.'s Conviction Integrity Unit.
Black has since resigned. And now Pagano has accused her boss, D.A. Krasner, of more prosecutorial misconduct in the same case.
Can anybody in D.A. Larry Krasner's office play by the rules?
Today in court, Judge Scott dismissed the second sexual abuse case filed against Holmes, on behalf of former Police Officer Christa Hayburn. Only one sex abuse case remains Holmes, filed on behalf of former Police Officer Michele Vandegrift.
In his motion to disqualify Krasner as prosecutor, Pagano wrote,
"DA Krasner’s continued failure (as of the date of filing of this motion) to disclose, further demonstrates a bias against Carl Holmes and creates a significant appearance of impropriety. Under the Pennsylvania Rules of Professional Conduct Rule 3.8, 1.11(d) and 1.11(e) a conflict of interest exists due to DA Krasner involvement in the criminal case and civil case, where Carl Holmes was the victim and defendant."
"DA Krasner’s representation of Mr. Butler appears improper because he asserted his discretion making a conscious decision to convene a grand jury and file charges against him - after a prior administration declined to charge him with respect to a complainant that the Commonwealth described was the 'heart of the case,'" Pagano wrote. "The fact that DA Krasner failed to make a timely disclosure to the Court, the grand jury and defense counsel, and has yet to make any disclosure, is in fact improper."
"DA Krasner’s representation of Mr. Butler appears improper because he asserted his discretion making a conscious decision to convene a grand jury and file charges against him - after a prior administration declined to charge him with respect to a complainant that the Commonwealth described was the 'heart of the case,'" Pagano wrote. "The fact that DA Krasner failed to make a timely disclosure to the Court, the grand jury and defense counsel, and has yet to make any disclosure, is in fact improper."
"DA Krasner’s current prosecution of Carl Holmes and failure to disclose to the Court, the grand jury and defense counsel violates Mr. Holmes' due process rights to have his case reviewed by an administrator of justice with his mind on the public purpose, not by an advocate whose judgment may be blurred by subjective reasons," Pagano wrote.
"Under Rule 1.11(d) and 1.11(e) DA Krasner should not have participated in the prosecution of Carl Holmes due to his prior involvement in both a criminal case and civil case where Carl Holmes was the victim and defendant."
One of the things Krasner has not disclosed is what part of the civil suit award of $80,000 did he collect as a fee.
The robbery that Butler was convicted of took place on Dec. 3, 1994 at the 7-11 at 34th and Lancaster Avenue. Butler stuck his gun to the head of a cashier and said, "Open the register." Then, after he collected the money, he ordered the cashier to lie down on the floor. A witness who briefly entered the store and quickly left, ran down the police.
Next, Sgt. Holmes came bursting through the door of the 7-11 yelling, "Freeze, freeze, freeze." But Butler aimed his gun at Holmes, and so Holmes, fearing he was about to be shot, opened fire. One of Holmes's bullets actually went down the barrel of Butler's gun.
A former prosecutor who saw the surveillance video in the case said that what Sgt. Holmes did was one of the most amazing acts of bravery he'd ever seen.
The sexual assault charges against Holmes, a 6-foot-6 former offensive tackle at Temple University, were originally filed on Oct. 24, 2019, after he was indicted by a grand jury. A preliminary hearing was held on March 12, 2020, as to the allegations from two of the complainants, Christa Hayburn and Michele Vandegrift. The third complainant, Elisa Diaz, was unavailable, and so that preliminary hearing was postponed for nearly a year before Judge Simmons threw out the charges.
Holmes was charged with aggravated indecent assault, indecent assault by forcible compulsion, and indecent assault without consent. The grand jury accused Holmes of sexually assaulting three female police officers, by kissing them, fondling their breasts and digitally penetrating their vaginas.
Pagano, Holmes's lawyer, insisted his client was innocent, and that when the case finally went to court, Holmes would be found not guilty on all the charges. Pagano also argued that the indictment of Holmes amounted to a witch hunt.
In a motion to dismiss the case filed on Sept. 25, 2020, Pagano argued that "the allegations in this case have received extensive local press coverage beginning approximately ten years ago. All of the complainants in this case have exhaustively litigated civil claims against the police department in the court system for approximately 10 years."
"The police department's internal affairs unit and the DAO investigated all of complainants' allegations for approximately 10 years," Pagano wrote. "No criminal charges were filed in any of the cases" and in one of the cases, the D.A.'s office decided not to pursue charges.
In a motion to dismiss the case, Pagano said that ADA Black had failed to turn over grand jury transcripts, even though a motion to compel discovery production was filed five months earlier.
What records that were turned over Pagano said, revealed that "the presentment in this case is the product of prosecutorial misconduct -- including but not limited to gross neglect and the investigation and in the presentation of evidence to the grand jury, including the presentation of perjured testimony, selective presentation of evidence to the grand jury and the omission of relevant facts and evidence to the grand jury."
Hayburn, a former police offficer, alleged that on Jan. 6, 2006, Holmes, who at the time was her boss, dragged her into the passenger seat of his Dodge Durango, kissed her, grabbed her breasts and penetrated her vagina. And then, Hayburn charged, Holmes dropped his pants, grabbed her hand and made her jerk him off.
In the investigations of Hayburn's allegations conducted by Internal Affairs and the DAO, 33 cops and 7 civilians were interviewed, Pagano wrote, and phone records were obtained by subpoena. Holmes's police car was seized and searched for forensic evidence, as were Hayburn's clothes.
Hayburn claimed that she had told another officer about being abused by Holmes. But when Police Officer Rollie Ramos was interviewed, he "did not corroborate what she says," Pagano wrote.
"Due to glaring inconsistencies and lack of corroboration between Ms. Hayburn's story and the evidence, the DAO declined to prosecute the case" in 2008, Pagano wrote.
To make matters worse, in May of 2018, the District Attorney's office appointed Hayburn to the D.A.'s Crime Victim Advisory Committee [CVAC]. Her official CVAC biography released by the D.A's office stated she was a "survivor of sexual violence at the hands of a fellow police officer."
She was appointed secretary and stayed on that committee until March 14, 2019. The D.A.'s office, however, didn't see a conflict.
"Ms. Hayburn's volunteer and peripheral role int he CVAC during the part of the DAO's investigation into sexual assault allegations against Carl Holmes does not create a conflict of interest," wrote Krasner and Black to the judge.
"Nor does that limited advisory poostiion 'corrupt' the case against the defendant in any way," Krasner and Black wrote. "While the DAO should have disclosed Mrs. Hayburn's role on the committee earlier, this oversight underscores the wall between the Special Victims Unit and the rest of the DAO meant to protect the integrity of secret investigations."
In his motion to dismiss the charges against Holmes, Pagano argued that after the district attorney's office and Internal Affairs investigations didn't produce an indictment of Holmes back in 2008, "Hayburn turned to the press, and for 10 years, she was a persistent and public critic of Holmes and the police department."
"The Philadelphia Inquirer and Philadelphia Daily News responded with alacrity and biased press coverage for more than seven years," Pagano wrote. "Hayburn was interviewed, photographed and quoted in several front page articles by the Philadelphia Daily News and Philadelphia Inquirer."
The second sexual abuse claimant, former police officer Vandegrift, also claimed she was assaulted by Holmes, but she didn't disclose the alleged incident to anyone for seven years, Pagano wrote.
The third alleged victim, Elisa Diaz, "did not disclose for almost 15 years," Pagano wrote. And the story she told was a real stretch.
As Pagano recounted the facts of the allegations, in 2004, Diaz, on the advice of her mother, went to see Carl Homes in his office at the Police Academy to make a complaint about alleged sexual harassment involving another officer, Sgt. Randy Davis.
According to testimony, Holmes assisted Diaz in defusing the situation. At a subsequent meeting arranged by Holmes, he and a deputy police commissioner met with Davis and basically gave him an admonishment to "cease and desist," Pagano said.
In testimony, Diaz's mother credited Holmes with helping her daughter resolve her problems with Davis.
Then, 15 years later, in 2019, Diaz revealed that during her 2004 meeting with Holmes, where she showed up on the advice of her mother to make a complaint about sexual harassment by another officer, Holmes chose that occasion to allegedly "violently and physically assault her during business hours," Pagano said.
Diaz allegedly "runs out to her car and calls her mother screaming and crying," Pagano said.
Pagano said his investigation revealed that Diaz had a less than stellar record in the police department. According to Pagano, Diaz is a "train wreck" who disobeyed orders, crashed a car, got into a fight with another female officer, and fraternized with drug dealers.
On top of that, Pagano said, while she was out on disability leave from the police department because she had allegedly been traumatized, Diaz appeared in an episode of Bad Girls, a British TV show, where she was filmed naked in a hot tub kissing another woman.