Judge Grills 3 Supervisors in D.A.'s Office About 'Lack of Candor'

By Ralph Cipriano
for BigTrial.net

For two hours today, U.S. District Court Judge Mitchell Goldberg grilled three top supervisors in the district attorney's office about why they had, in the opinion of the judge, breached their "obligation to be candid with the court."

At issue was the case of Robert Wharton, who, with a co-defendant, was convicted in 1984 of strangling and drowning to death a minister's son and his wife. 

If that wasn't bad enough, after Wharton and his codefendant got through brutally murdering the couple and ransacking their home, they turned off the heat in the dead of winter and left the couple's infant daughter, then 7-months old, alone to freeze to death. Before they left, the heartless killers even stole the infant's crib.

If you're asking yourself why the D.A.'s office under Larry Krasner got involved in the case, it wasn't to protect the public from such a depraved killer. And it certainly wasn't to advocate on behalf of the daughter of the murdered couple, who had somehow miraculously survived because the minister showed up two days after the murders of his son and daughter-in-law, to rescue the crying, dehydrated infant, who was rushed to the hospital.  

No, in the case of the Commonwealth v. Wharton, the D.A.'s office under Larry Krasner took the side of the convicted killer, by trying to get Judge Goldberg to agree to let Wharton off death row. In doing so, the D.A.'s office claimed that Wharton had rehabilitated himself while in prison. 

In making that argument, however, the three supervisors in the D.A.'s office did not tell the judge that in 1986, the supposedly rehabilitated Wharton had tried to escape a courtroom in City Hall, and was only stopped after he was shot twice by a sheriff's deputy.

The D.A.'s office also neglected to inform Judge Goldberg about the six times that Wharton had been disciplined in prison, twice after he was caught with pieces of a metal antenna that Wharton had fashioned into a key to unlock his handcuffs.

The D.A.'s office also neglected to inform Judge Goldberg that they hadn't bothered to contact the only surviving child of the murdered couple, as they were required to do by law, to let her know that they were trying to get the convicted killer of her parents off death row.

D.A. Krasner's Longtime Collaboration With David Rudovsky

What happened in court today was the most illuminating look to date at the inner workings of the D.A.'s office under Larry Krasner, where the paramount concern is for the welfare of criminals, at the expense of the public and victims of crime.

When court opened this morning shortly before 9 a. m., David Rudovsky, Esquire, entered his appearance on behalf of the D.A.'s office to represent Krasner's three supervisors in front of Judge Goldberg, who was threatening to hit them with sanctions.

Rudovsky is a veteran civil rights and criminal defense lawyer who has spent his career suing the city and trying to get convicted killers out of jail. He and Krasner are longtime friends, progressive soulmates and political allies; it was Rudovsky's firm that employed Lisa Rau, Krasner's wife, before she became a Common Pleas Court judge.

Rudovsky was also a key player in a long-running civil dispute involving the D.A.'s office that ultimately wound up enriching both Rudovsky's law firm and Krasner's political war chest. The dispute began in 2014, in a civil lawsuit where the city was accused of illegally seizing more than $50 million in forfeitures from criminal defendants. In 2018, after Krasner took office as D.A., the city, which had fought the case for the previous four years, began negotiating with Rudovsky's firm to resolve it.

On Jan. 27, 2021, the city agreed to set up a $3 million restitution fund, of which $1.6 million was paid out to alleged victims in the case. The settlement included an award of $772,633 to the Philadelphia Foundation, so that D.A. Krasner could grandstand while passing out public service grants that would further enrich his political fortunes. 

On top of the $3 million in restitution, to settle the case, the D.A.'s office under Krasner also agreed to pay $2.6 million to Rudovsky's firm. So Krasner and Rudovsky are a couple of cozy, longtime collaborators.

Rudovsky: Crime Victims 'Completely Irrelevant'

Today in court, Judge Goldberg repeatedly asked the three supervisors in the D.A.'s office to answer a simple question, namely why they hadn't been candid with him. And the response of the three supervisors was to plead ignorance, and to surprisingly wrap themselves up in the past practices of the D.A.'s office under previous district attorneys. Along the way, however, each supervisor made some damning admissions.

Meanwhile, Rudovsky, brimming with the smug, moral superiority of the progressively enlightened, repeatedly lectured the judge that he was overstepping his boundaries; he also repeatedly asserted that the public, as well as the crime victim in the case, had no right to know the inner deliberations of the D.A.'s office.

The public and the crime victim, Rudovsky said, also didn't have any right to know why the D.A.'s office had suddenly reversed decades of defending Wharton's conviction, and was now trying to get Wharton off of death row. 

The ultimate authority in this case, Rudovsky insisted, was the D.A. himself. As for crime victims, Rudovsky said, they were "completely irrelevant."

Rudovsky began by objecting to a motion that the judge had filed yesterday, where Judge Goldberg was claiming that by withholding information from him, the D.A.'s office was trying to circumvent the judge's narrow legal role in deciding death row appeals such as the Wharton case.

"There is a new focus here," Rudovsky complained; he also objected to the judge's charge that the D.A.'s office had violated their duty of candor. 

The judge did not back down.

"I'm concerned that they [the D.A.'s office] tried to to circumvent well established case law" in not divulging the true facts of the case to him, the judge said.

Rudovsky: The Public Has No Right To Know

But when the judge tried to probe the inner workings of the D.A.'s office, and why it decided after decades to suddenly reverse course, and go along with the efforts of criminal defense lawyers to get the supposedly rehabilitated Wharton off death row, Rudovsky objected.

The "internal deliberations" of the D.A.'s office, Rudovsky said, should not be disclosed to the public, and "should not be done in a fish bowl."

Judge Goldberg protested that he couldn't understand how the D.A.'s office had not informed him that Wharton had attempted to escape by slipping out of his handcuffs, shoving a sheriff's deputy, and bolting.

"He escaped from a City Hall courtroom and was 30 feet from Market Street and had to be shot," the judge stated.

When the judge asked Nancy Winkelman, supervisor of the D.A.'s law division, to explain why she wasn't candid with the court, Winkelman gave a long and emotional speech about how much her reputation meant to her.

The judge agreed that Winkelman had an "exemplary reputation," but he he added, "I'd rather avoid all the speeches."

The judge admitted he hadn't taken lightly his accusations against the D.A.'s office. 

"I've lost countless hours of sleep over this," he said. But he added that he couldn't understand the behavior of the D.A.'s office regarding the Wharton case, which he described as "one of the most horrific cases I've ever witnessed."

'I Do Think You're Evading My Question'

In response, Winkelman explained that the decision to file a notice of concession in the Wharton case was made by a team of supervisors in the D.A.'s office known as the Capital Case Review Committee.

The notice of concession was a formal waiving of the white flag by the D.A.'s office. When Wharton's defense lawyers filed a motion to get the convicted killer off death row, by claiming his trial lawyer had been ineffective, instead of standing up for the public, and the relatives of the murder victims, the D.A.'s office decided to throw in the towel, and formally concede without a fight so that Wharton's life should be spared.

The Capital Case Review Committee, which reports to the D.A., includes the D.A.'s first assistant, and supervisors of several key units, including homicide, law, victim's services, and the conviction integrity unit. But it's Krasner, Winkelman said, who makes the final decisions.

When the judge asked about the committee's deliberations regarding Wharton, Winkelman responded, "I can't remember those discussions on this particular case."

When the judge got tired of asking the same question, and getting speeches on office procedures from Winkelman, he stated, "I do think you're evading my question."

But Winkelman said, "We did not withhold evidence, we followed practice," and that "our process was no different" from previous administrations in the D.A.'s office.

When Judge Goldberg asked Winkelman if she knew about Wharton getting shot, she responded, "I did not know about the escape."

But when the judge tried to pry further into the workings of the Capital Case Review Committee by asserting that the "the public has a right to know about the deliberative process," Rudovsky replied, "Absolutely not."

'We Recognize A Mistake'

The judge followed that up by asking Winkelman what the D.A.'s office had done to inform the relatives of the murder victims that the D.A.'s office had decided to go along with a defense request to get Wharton of of death row.

Winkelman said that the D.A.'s victims rights coordinator had contacted the eldest brother of one of the murder victims, and that he had not responded that he was "strongly against" letting Wharton off death row.

Winkelman said the D.A.'s office asked the eldest brother to talk to other relatives about the request to get Wharton off of death row, but the D.A.'s office didn't bother to contact the only child of the murder victims.

"It's something we should have done," Winkelman admitted. "We recognize a mistake."

But, she said, it wasn't her job to inform the other relatives of the murder victims that the D.A.'s office was going along with the defense's request to get Wharton off of death row.

A Crime Victim Who Didn't Matter To Larry Krasner

In his memorandum opinion, Judge Goldberg wrote about the daughter of the murder victims: "Lisa Hart-Newman, now age thirty-seven, the infant left to die by Wharton, is a surviving victim but was never contacted by the District Attorney."

"In her June 6, 2019 letter to this Court, Lisa Hart-Newman stated that she was 'extremely disappointed to learn of the District Attorney’s stance [to seek to vacate the death penalty] and very troubled that the District Attorney implied that the family approved of his viewpoint.'"

"At no point was I contacted by the District Attorney or anyone in his office to ascertain what my views are," Hart-Newman wrote about the D.A.'s office. "Seeing as I was also a victim in this tragedy, my opinion should have been sought and should carry weight. At seven months old, after my parents had been murdered, I was left in a house where the heat had been intentionally turned off in hopes that I would die. I am the sole survivor of this tragedy and I am alive despite his efforts."

During a hearing before the judge, Lisa Hart-Newman testified that when she did finally find out about what the D.A.'s office was up to, namely trying to get the murderer of her parents off death row,  “It was as though, well, it’s already done, and there’s nothing you can do about it . . . you don’t matter, essentially.” 

'That's Your Answer?'

In court today, Winkelman said it was also office precedent to ask the supervisor of the federal litigation unit to write the notice of concession by the D.A.'s office, which informed Judge Goldberg that the D.A.'s office would not contest the defense motion to get Wharton off death row.

"This is how the office previously operated," Winkelman told the judge.

At this point, the judge got impatient with the witness. 

When Larry Krasner ran for district attorney, the judge reminded Winkelman, he said "he's gonna do things a lot different than other administrations had done," before His Honor added, "That's your answer?"

Yes it was.

'Not On Our Radar'

After Winkelman, the next witness was Paul George, assistant supervisor in the D.A.'s law division.

George also admitted that when the Capital Case Review Committee was deliberating what to do about the Wharton case, George was not aware of Wharton's attempted escape, and neither was any other member of the committee.

The escape attempt by Wharton, George told the judge, "was not on our radar."

When the judge asked George if the committee had considered any evidence that went against the argument that Wharton had supposedly rehabilitated himself in prison, George responded by saying, "Whatever might be said about our thoroughness, that did occur."

Merely Following Orders

The last witness was Max Kaufman, former supervisor of the federal litigation unit.

In an affidavit, Kaufman told the judge that when he wrote the notice of concession, "I was not personally aware of Wharton's attempted escape in 1986," he admitted. Nor was he aware, Kaufman admitted in his affidavit, of the six times that Wharton was charged in prison for misconduct.

In the affidavit, Kaufman wrote that the notice of concession did not intend to imply that the "victims' family agreed with the decision" of the D.A's office to go along with the defense request to get Wharton off death row.

In his affidavit, Kaufman conceded that the "admittedly vague" language in his notice of concession about "communication with the victims' family" would lead someone to erroneously conclude that the victims' family agreed with the D.A.'s decision to not contest the defense motion to get Wharton off death row.

"Please know that this was certainly not my intention, and I apologize to the court for the lack of clarity," Kaufman wrote.

In court today, Judge Goldberg asked Kaufman why he hadn't been more thorough in his work on the Wharton appeal.

"This is a death penalty case; there is nothing more important that we do," the judge stated.

But Kaufman explained that in writing the notice of concession, he wasn't involved in any decision making, he was merely following the orders of his superiors.

Judge Goldberg, however, refused to accept the notice of concession from the D.A.'s office. Instead, the judge asked the D.A.'s office to answer a couple of follow-up questions.

So Kaufman sent the judge another response from the D.A.'s office. And when the judge asked who wrote the answers to his questions, Kaufman replied that it was Wharton's defense lawyers, and that he had merely signed the response.

'I Appreciate Your Candor'

In his affidavit, Kaufman said that he subsequently sought and received permission from his supervisors to stop working on the Wharton case. 

Why? "Because it seemed apparent the case was evolving from a perfunctory concession of relief to active litigation on Wharton's behalf," Kaufman wrote. 

In his appearance in court today before Judge Goldberg, the judge asked Kaufman why he had asked his superiors to get off the Wharton case.

"I wanted to focus on more traditional cases," Kaufman responded. It appeared to be his way of saying that he was more comfortable working on cases where the D.A.'s office was actually prosecuting criminals, rather than advocating on their behalf.

"I appreciate your candor and won't press you on that topic," the judge responded. 

In February, Kaufman quit the D.A.'s office to become clerk to state Supreme Court Justice Kevin Dougherty.

The Road To Sanctions

The judge ended the hearing by saying, "I don't know where we're going to go from here."

This is the second time in two years that Judge Goldberg has had to formally admonish the D.A.'s office under Larry Krasner for a lack of candor.

On Feb. 11, 2021, Judge Goldberg issued a 23-page "memorandum opinion" that constituted a formal admonishment of then ADA Patricia Cummings, the former head of the D.A.'s Conviction Integrity Unit, for violating her duty of candor to the court. 

While Cummings was arguing an appeal in federal court, Judge Goldberg wrote, she should have informed His Honor that she had parallel litigation going in state court in her crusade to get Antonio Martinez out of jail, who was serving a life sentence after being convicted of a 1985 double homicide.

Do we need any more evidence that under Larry Krasner, the paramount function of the District Attorney's office is to advocate for the rights of criminals?

Because Judge Goldberg's previous admonishment didn't have any effect on the behavior of the D.A.'s office, the only option left to the judge now is sanctions.

In the meantime, we should all be grateful to Judge Goldberg for not only refusing to go along with Larry Krasner's plans to get another convicted killer off death row, but for also exposing how Krasner has corrupted the D.A.'s office.