State Court: D.A.'s 'Do Not Call List' For Cops Is Unconstitutional

Illustration: Philadelphia Weekly

By Ralph Cipriano
for BigTrial.net

The Commonwealth Court of Pennsylvania yesterday ruled that a "Do Not Call List" of allegedly tainted cops compiled by District Attorney Larry Krasner -- a list that would prohibit those cops from testifying in court as witnesses -- is just plain unconstitutional.

The list, which was subsequently published in the district attorney's favorite public relations outlet, The Philadelphia Inquirer, amounts to a "black list" in that newspaper, the court stated, because it did not afford the accused cops due process where they could contest the charges, and have a chance to clear their names.

The 34-page opinion of the Commonwealth Court, written by Judge Patricia McCullough, was issued in the 2019 case of the Fraternal Order of Police Lodge No. 5 vs. the city of Philadelphia, Mayor Jim Kenney, District Attorney Krasner, and former Police Commissioner Richard Ross.

Judge McCullough's opinion overturned a 2019 Common Pleas Court ruling that dismissed the FOP's complaint with prejudice after the lower court mistakenly ruled that District Attorney Krasner had absolute immunity from civil damages for his actions relating to his prosecution of criminal cases.

Instead, the Commonwealth Court ruled that the FOP lawsuit "was not within the rule of immunity" because the FOP was simply seeking "constitutional compliance through equitable relief" by restraining the D.A. and the city from trampling on the constitutional rights of cops.

In other words, the Commonwealth Court, in what FOP President John McNesby described as a "landmark ruling," basically informed D.A. Krasner, Mayor Kenney and the police commissioner that, as McNesby put it, "police officers are entitled to the same constitutional rights as the average citizen."

In yesterday's opinion, the Commonwealth Court stated that in the FOP case, "a fundamental right is at stake, and the City and the District Attorney did not afford the appellant police officers the proper due process required under the Pennsylvania Constitution."

According to the court, "police officers should not be required to wait until damage to their reputations has been done before they are provided a meaningful opportunity to be heard."

In the opinion, Judge McCullough stated that "the negative stigma of being included on a Do Not Call List is a threat to the appellant police officers’ reputations." 

According to the Commonwealth Court, the FOP contended that "police officers were not informed that they were placed on the Do Not Call List until after the fact, nor were they provided an opportunity to challenge their inclusion on the List prior to or after being placed on the List."

The FOP also charged that the D.A., with the assistance from the city, was engaging in the “wholesale release of confidential personnel information to third parties [as in defense lawyers] without an opportunity to be heard to challenge the legal necessity of such release.”

Furthermore, the FOP argued, such disclosures have had a “direct and negative impact” on the "police officers’ reputations amongst their colleagues and the public, as well as their work assignments and promotional opportunities, and constitutes violations of their statutory and constitutional rights."

Here's how the tainted process employed by the D.A.'s office works. 

A cop gets a letter from the D.A. stating that the D.A.'s office has just received what's known as "Giglio" information, referring to a 1972 U.S. Supreme Court case known as Giglio v. United States, alleging the existence of evidence that might impeach the officer's credibility as a witness.

"Pursuant to the law and the [District Attorney’s Office’s] policy regarding police misconduct disclosures, the misconduct will be disclosed to the defense in all cases where you may be called to testify as a witness and said disclosure may also be made if required in closed cases where you were a critical witness," the letter states. "Also, if required by law, supporting documentation in our possession regarding the misconduct will be disclosed to the defense."

"Please note, if you believe our information is incorrect, feel free to communicate to us in writing through counsel," the D.A.'s letter concludes.

In the opinion of the Commonwealth Court, these letters from the D.A.'s office, which Krasner has been sending out for the past four years, are patently unfair as well as unconstitutional.

"First, whether the information in the Letter is “correct” does not go to whether the officers were mistakenly placed on the List and should be removed from the List in light of their exoneration," the court stated. In some instances outlined in the FOP lawsuit, officers accused of misconduct who were included on the Do Not Call List were ultimately cleared of any wrongdoing.

"Limiting the officers’ challenge to whether the information is “correct” or not – is not the same as affording them the opportunity to establish before an impartial tribunal why, having been cleared, they should not have been placed on, and should not remain on, a List of untrustworthy officers," the court opinion states.

"Therefore, the procedure offered by the District Attorney’s Office, which restricts any challenge to the 'correctness' of the information contained in the Letters, does not serve as meaningful opportunity to be heard on the issue," Judge McCullough concluded.

"Moreover, adequate due process requires an impartial tribunal," the judge further opined. "As alleged in the complaint, the process offered by the Letters places sole discretion with the District Attorney regarding whether officers should be placed on or remain on the Do Not Call List even though they were acquitted."

"Therefore, it is not an adequate remedy to leave the decision to the very person whom the appellant police officers contend mistakenly and unfairly placed them on the List in the first place," the judge wrote.

In other words, D.A. Larry Krasner is no impartial minister of justice. 

Since he took office in 2018, Krasner has had one of his top assistants, Assistant District Attorney Patricia Cummings, head of the D.A.'s Conviction Integrity Unit, sending out these Giglio letters to dozens of officers.

Every month, the unit led by Cummings combs through the personnel jackets of police officers, looking for critical material. And then that unit headed by Cummings voluntarily turns over materials from those personnel files to defense counsels, to aid them in their efforts to impeach the credibility of police officers. 

The net effect is to disqualify cops from testifying at trial against criminal defendants, so the criminal defendants can go free. 

That was the corrupt system in place under D.A. Krasner until the Commonwealth Court yesterday threw a monkey wrench into those proceedings.

Cummings, who has some credibility problems of her own that were fodder for a five-part Showtime miniseries,  departed the D.A.'s office on Aug. 13th under cloak of darkness, without any announcements forthcoming from her or Krasner. 

An infamous case of Krasner trying to impeach an officer's credibility was disclosed in a July 30th civil rights lawsuit filed in U.S. District Court against the D.A. and the city by former Philadelphia homicide detective Derrick Jacobs.

In his complaint, Jacobs cited a case where information was turned over to a defense lawyer involving a cop's daughter who was repeatedly raped by a family member between the ages of 6 to 14.

When the cop found out about the repeated rapes, she filed charges against the family member, who was convicted and sent to jail. When he got out of jail, Jacobs wrote, the family member filed a "frivolous abuse of power" complaint with the Police Department's Internal Affairs Division against the cop who put him away.

The complaint was dismissed, but according to Jaccobs' lawsuit, either the police department's Internal Affairs Division or the district attorney's office "provided the sordid details" about the daughter being repeatedly raped to a defense attorney so he could argue that the cop had a habit of abusing her authority.

"When the officer, who along with their daughter, are now traumatized, complained, the DAO retaliated against the officer and placed the officer on the Do Not Testify list to punish them for complaining," Jacobs wrote in his lawsuit. 

These were the kind of abuses that took place under Krasner's progressive leadership until a higher court finally reminded Krasner that the U.S. Constitution, as well as the Pennsylvania Constitution, also apply to cops.

If you're wondering what the D.A. has to say regarding this major legal defeat, I'll have to refer you to his co-conspirator and favorite media outlet, The Philadelphia Inquirer, because Krasner doesn't talk to Big Trial. 

Whenever they get around to notifying the public about the Commonwealth Court decision, we can count on the Inquirer's trusty reporters and editors to [A] underplay the significance of that opinion, and [B] include some ample spin from Krasner's office. 

Because in Philadelphia, the progressive Inquirer and the progressive D.A., as well as the progressive mayor, are all playing on the same team.