State Supreme Court Justice: Larry Krasner 'Abused' Grand Jury Process And 'Slanted' Grand Jury Report To Indict Cop For Murder

By Ralph Cipriano
for BigTrial.net

State Supreme Court Justice Kevin Dougherty today charged Philadelphia District Attorney Larry Krasner with abusing the grand jury process in his crusade to indict former Police Officer Ryan Pownall for murder in a racially charged officer-involved shooting case.

According to what Dougherty wrote in a concurring opinion, the D.A.'s office under Krasner was “driven by a win-at-all-cost office culture” that "treats police officers differently than other criminal defendants."

"This is the antithesis of what the law expects of a prosecutor," Dougherty wrote, adding that under the law, a prosecutor is supposed to be a "minister of justice."

Dougherty's formal admonishment of the D.A.'s office was a double-barreled loss today for Krasner, who is being threatened with impeachment by the state House of Representatives. In a 4-2 majority opinion issued today, the state Supreme Court ruled against the D.A.'s office in a key issue in the Pownall case.

What the Supreme Court did today was to uphold an earlier ruling by the state Superior Court that said the D.A.'s office couldn't seek retroactively rewrite the law about justifiable use of deadly force by a police officer, so that former Officer Pownall could be convicted of murder.

In their unsuccessful appeals, the D.A.'s office was trying to get around a state statute that says a police officer is "justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person."

The law goes on to say that the officer must believe "such force is necessary to prevent the arrest from being defeated by resistance or escape," or if the suspect "has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon."

In the opinion of one of the detectives who investigated the Pownall case on behalf of the Philadelphia Police Department, Derrick Jacobs, that's exactly what happened. And that's why Krasner wanted to retroactively change the law so he could hang a police officer. 

But that's not what a "minister of justice" is supposed to be doing.

In his concurring opinion, Justice Dougherty blasted the D.A.'s handling of the Pownall case as full of prosecutorial misconduct. He said that Krasner's office didn't fully inform the grand jury of the relevant  law involving justifiable use of force by a police officer. And that's why the grand jury produced a "slanted" report that Krasner's office subsequently fed to a complicit and uncritical media,  so they would run with Krasner's twisted version of the facts. 

On June 8, 2017, Officer Pownall was  transporting Terrence Freeman, a witness, and his two children to the Special Victims Unit. Along the way, Pownall saw David Jones weaving in and out of traffic while driving recklessly on his dirt bike, which is illegal to operate on the streets of Philadelphia.

Pownall got out of his squad car and confronted Jones. When the cop frisked Jones, he discovered a gun in Jones' waistband. During a fight that ensued, the officer drew his gun and told Jones not to grab his weapon. Pownall tried to shoot Jones during the struggle, but his gun jammed. Jones then fled on foot and the officer fired three times, killing Jones.

In the view of former Detective Derrick Jacobs, who investigated the shooting on behalf of the Philadelphia Police Department, Officer Pownall did nothing wrong.

"Jones was armed," Jacobs previously told Big Trial. And during the fight between the two men, "Pownall believed he was shooting Jones to protect himself and possibly Freeman and his children as well," Jacobs said.

But that's not how Larry Krasner saw the case.

After Pownall was fired by then Police Commissioner Richard Ross. Krasner charged Pownall with murder and he was held without bail. It was the first time in 20 years that a Philadelphia officer had been charged after a police shooting. A judge subsequently reduced the charge to third-degree murder and Pownall was released on bail.

In December 2019, Pownall filed a motion to quash the presentment, charging that the D.A.'s office had "intentionally failed to notify the grand jury of the peace officer justification defense" cited above.

In intentionally not informing the grand jury of the legal justification for the use of the deadly force, Pownall argued, the D.A.'s office knew that "to do so would have prevented the grand jury from recommending criminal charges."

"However, the misconduct did not end there," the justice wrote. "The prosecution then asked the grand jury to return a presentment on homicide charges which included murder, voluntary manslaughter, and involuntary manslaughter, without defining any of those charges."

"This grand jury had no idea that they would have to have found from the evidence that Pownall acted with premeditation for murder of the first degree, malice for any form of murder, a mistaken belief in self defense for voluntary manslaughter, or criminal recklessness for involuntary manslaughter," Pownall argued.

"This may be [the] first time in the history of Pennsylvania jurisprudence that a District Attorney requested a grand jury to authorize criminal charges without explaining the law that applies to those charges because to do so would have prevented a finding of probable cause," Pownall's lawyers argued.

Justice Dougherty agreed. 

"In my view, if these allegations are true, as they appear to be, it implicates a potential abuse of the grand jury process," the justice wrote. 

“The grand jury must know what crimes it is to investigate," the justice wrote. "Yet, the DAO appears to have obtained a presentment in this case without providing the grand jury the definition for the crime that was actually charged in the subsequent complaint (third-degree murder), or the possible justification for that criminal offense."

"Moreover, by failing to provide the grand jury with all relevant legal instructions, it also necessarily raises questions about the completeness of the factual record the DAO presented to the grand jury," the justice wrote. 

"In short, by depriving the grand jury of the full panoply of relevant legal definitions, the DAO has exposed the grand jury’s resulting presentment to legitimate attack" by Pownall's lawyers, the justice wrote. 

"In fact, given the circumstances, the presentment in this case is perhaps best characterized as a 'foul blow,' " the justice wrote. "As discussed, the grand jury approved it without full knowledge of the pertinent law. That is disconcerting enough."

"Equally disturbing, though, is the presentment itself," the justice wrote. "It is thirteen pages long and includes an introduction, closing, and seventy-four purported factual findings. There is no discussion of the law, except for the recommended charges (which, again, do not include third-degree murder) listed on the final page."

"Also significant is the way the prosecution used the presentment," the justice wrote. "The DAO successfully moved to unseal it and then, after charging Pownall, directed the press to its purported factual findings."

The media, led by The Philadelphia Inquirer, then proceeded to do Krasner's dirty work for him by tarring and feathering Pownall as a racist murderer. 

"Not surprisingly, multiple news sources reported on the presentment’s one-sided account, with some even making the full document available online for anyone and everyone to read," the justice wrote.

But that's not the way the system is supposed to work, the justice wrote.

"It is important to recall the Investigating Grand Jury Act defines a presentment merely as '[a] written formal recommendation . . . that specific persons be charged with specific crimes,' " the justice wrote. 

"Nothing in this definition appears to endorse the type of gratuitous narrative provided in this case," the justice wrote. "Of course, it is anticipated that grand jury presentments will be somewhat biased."

"Nevertheless, before endorsing the Commonwealth’s portrayal of a case, the grand jury must at a minimum be advised of the full breadth of the applicable law," Justice Dougherty wrote. "That deficiency here renders the entire presentment suspect."

The judge then slammed Krasner's office for their usual tactic in any case involving a police officer as a defendant, of denying former Officer Pownall a preliminary hearing.

"One implication of this statement is that a preliminary hearing would have exposed the DAO’s questionable means of obtaining the grand jury’s presentment," the justice wrote. "Another is that it might have led to the dismissal of some or all charges. Regardless, it is disturbing that the DAO went to such lengths to deprive Pownall of his statutory right to a preliminary hearing."

Justice Dougherty wrote that the prosecution's motions in the case to limit the evidence, "much like the legal instructions it gave to the investigating grand jury — presented only half the relevant picture."

"This type of advocacy would be worrisome coming from any litigant," the justice wrote, noting that "all attorneys have a duty of candor toward a tribunal."

Justice Dougherty also stated that Krasner's office manipulated court proceedings to challenge a police officer's rights to use justifiable force retroactively, something that the trial court also objected to.

"The trial court’s frustration was well founded, considering the DAO had 'more than a year and two months” after Pownall’s arrest to file its motion, yet it chose to wait until only weeks before trial was set to begin," the justice wrote. 

"But the timing of the DAO’s motion was more than just frustrating: it also raises ethical concerns," the justice wrote. "Pownall filed his motion to quash the grand jury’s presentment on December 18, 2019. Instead of responding to the accusations raised in that motion, five days later, counsel for the DAO 'made an unscheduled appearance' in the trial court and demanded the court rule on its motion."

The D.A. "further warned the court it would take an immediate interlocutory appeal — with or without the court’s permission — should the court deny its motion," the justice wrote.

"After the court did precisely that, the DAO followed through on its threat and filed the present improper appeal, thereby forestalling its need to answer Pownall’s grand jury allegations by divesting the court of jurisdiction over the case," the justice wrote.

"When combined with the other tactics highlighted throughout this concurrence, a compelling argument may be made that the DAO’s decision to delay Pownall’s trial further by taking an unauthorized interlocutory appeal was intended to deprive him of a fair and speedy trial," the justice wrote.

The state Superior Court subsequently denied D.A.'s unauthorized interlocutory appeal. Krasner's office then appealed, and the state Supreme Court today upheld the Superior Court's quashing of that unauthorized appeal.

The state Supreme Court justice was highly critical of how the D.A.'s office handled the Pownall case in the grand jury. 

"The DAO secured from the grand jury, which operates under the cover of secrecy, a slanted presentment written by the DAO’s own attorneys, based on its preferred facts," the justice wrote.

"Although the grand jury signed on to the DAO’s take on the case, it did so without full awareness of the relevant legal definitions for murder or the defense under Section 508," the justice wrote, referring to the section of the law regarding a police officer's justifiable use of force.

"Then, the DAO had the presentment unsealed so it could be disseminated to the press, which uncritically reported the 'grand jury’s findings,' ” the justice wrote.

"Meanwhile, the DAO maneuvered to bypass Pownall’s statutory right to a preliminary hearing, at which the DAO would have been required to subject its evidence to cross-examination and prove a prima facie case for third-degree murder," Justice Dougherty wrote.

"Having succeeded in that endeavor, the DAO next fought to keep the case in Philadelphia before a Philadelphia jury despite extensive local media coverage; that effort also succeeded," the justice wrote.

"Finally, as trial neared, there was only one obstacle that remained in the DAO’s path to conviction: the legislatively authorized peace officer justification defense," the justice wrote. "So, the DAO, in the District Attorney’s own words, did something 'unusual' and 'creative' — it challenged Section 508 and its corresponding suggested jury instruction because it believed they are 'not fair.' ”

"After the trial court refused the DAO’s motion — and faced with having to respond to Pownall’s pending motion to quash the grand jury’s presentment — the DAO took an unauthorized interlocutory appeal, knowing it would (at least temporarily) nullify both of those problems," the justice wrote. 

"Now, for the first time before this Court, the DAO finally admits its true intent in all this was simply to use Pownall’s case as a vehicle to force a judicial determination" on whether the law that says when a police officer can use justifiable force "is facially unconstitutional," the justice wrote.

Then, the justice accused the D.A.'s office under Larry Krasner of trying to pull a fast one to take away a defendant's constitutional rights.

"What’s more, despite having assured the trial court it was not trying 'to bar [Pownall] from a defense,'" the justice wrote, the DAO now boldly asserts it would be appropriate for this Court to rewrite the law and retroactively apply it to Pownall’s case because he supposedly 'had fair notice of his inability to rely on this unconstitutional defense.' ” 

"Little that has happened in this case up to this point reflects procedural justice," the justice concluded. "On the contrary, the DAO’s prosecution of Pownall appears to be 'driven by a win-at-all-cost office culture' that treats police officers differently than other criminal defendants."

"This is the antithesis of what the law expects of a prosecutor," the justice wrote.

This is not the first time Krasner's handling of the Pownall case has been challenged in court.

In a explosive whistleblower lawsuit filed in U.S. District Court in 2020, former detective Derrick Jacobs charged that Krasner and Assistant D.A. Tracy Tripp conspired to maliciously prosecute him because he refused to change his testimony about his findings in the Pownall case.

In a brief filed to fight a motion by the city to dismiss his lawsuit, the detective stated that in retaliation for his efforts to expose corruption in the D.A.'s office, Krasner and Tripp conspired to have a grand jury indict Jacobs for something he didn't do, leaking grand jury secrets.

The reason why Krasner and Tripp threatened to arrest him, Jacobs asserted, is because he refused to change his story about his investigation that exonerated Officer Pownall. 

According to Jacobs, Krasner's true motive in indicting Pownall for murder was to incite a race war by prosecuting Pownall, who is white, for allegedly murdering Jones, who was black. 

But when Jacobs, who is also black, refused to change his testimony,  Krasner and Tripp allegedly retaliated by threatening him with arrest, and then orchestrating his firing from the police department, for insubordination. 

Jacobs's alleged act of insubordination -- speaking out on a podcast about his allegations of corruption against the D.A.'s office.

Allegations of corruption that have just been substantiated by no less than a state Supreme Court justice.