WHARTON v. VAUGHN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT WHARTON,

Petitioner, Civil Action

v. No. 01-cv-6049

DONALD T. VAUGHN,

Respondent.

MEMORANDUM OPINION

GOLDBERG, J. September 12, 2022

Trial courts and lawyers take direction from appellate judges. This is such a basic legal

principle that no precedential or statutory citation is needed. As it relates to the federal habeas

death penalty case before this Court, clear directives were issued by the United States Court of

Appeals for the Third Circuit.

Approximately three years ago, the Third Circuit directed that a hearing be held to deter-

mine whether Petitioner Robert Wharton’s trial counsel was ineffective under Strickland v. Wash-

ington, 466 U.S. 668 (1984). Wharton alleged, with the District Attorney’s Office now in agree-

ment, that his Sixth Amendment rights were violated by his trial counsel’s failure to investigate

and present evidence of Wharton’s positive adjustment to prison at the penalty phase of his homi-

cide trial. Wharton v. Vaughn, 722 F. App’x 268, 280 (3d Cir. 2018). The Third Circuit directed

that analysis of this Strickland claim should entail reconstructing the record to consider mitigation

evidence not presented by trial counsel and that this hearing “must also take account of the anti-

mitigation evidence that the Commonwealth would have presented to rebut the petitioner’s miti-

gation testimony.” Id. at 283 (emphasis added). That court also ordered that the Strickland analysis

be conducted “consistent with [its] opinion.” Id. at 284.

In siding with Wharton that his requested relief was warranted, the District Attorney’s Of-

fice has continually asserted that, despite specific guidance from the Third Circuit as to how Whar-

ton’s Sixth Amendment claim should be analyzed, it was free to concede relief and that a full

exploration by the Court of all relevant facts was unnecessary.1 But this position flatly contradicts

unambiguous directives issued by the Pennsylvania Supreme Court regarding the handling of death

penalty matters on collateral review. In Commonwealth v. Brown, 196 A.3d 130 (Pa. 2018), the

Supreme Court spelled out its rejection, “in the strongest terms,” of the District Attorney’s position

that it maintained authority, via a concession and stipulation, to undo a penalty of death on collat-

eral review. Id. at 321. Brown’s reasoning is easily understood and mandates that after a jury has

imposed a sentence of death, affirmed on appellate review, the only way to vacate that verdict is

through “appropriate” and “independent” judicial review—with the District Attorney’s role in that

process being limited to that of an “advoca[te].” Id. at 319-20. The Supreme Court admonished

that if the District Attorney’s concession were allowed to serve as the sole basis for undoing a

verdict, “the power of a court [would] amount[] to nothing more than the power ‘to do exactly

1 See, e.g., ECF No. 278 at 22 (“[B]oth the federal and state courts regularly accepted the Com-

monwealth’s concessions of death penalty relief, without conducting evidentiary hearings and

without appointing a substitute prosecutor [i.e., the Attorney General’s Office] to aggressively ar-

gue for death.”); ECF No. 312 at 12 (“[P]arties often concede issues or arguments that narrow or

preclude an evidentiary hearing.”); N.T. 6/23/22 at 17 (“What the District Attorney’s Office did

was file a Notice that, after having reviewed the case, they agreed there was merit to the Defend-

ant’s Claim, having reviewed whatever evidence they had at that time, therefore consistent with

what they’d been doing for years, before Larry Krasner was District Attorney, and while he was.

They simply filed a Notice saying that’s our position.”); N.T. 6/23/22 at 19 (“That was their posi-

tion. They did what Lawyers do all the time and said, under those circumstances, we agree with

our Opponent. Lawyers do it in civil cases. They do it in criminal cases. It goes on all the time.”).

what the parties tell it to do, simply because they [the District Attorney] said so and without any

actual merits review[.]’” Id. at 325 (emphasis added). In short, Brown plainly holds that a jury’s

death sentence verdict cannot be undone until all facts are placed on the table so that a fully-

informed judge, not the District Attorney, can make the decision as to whether a decades-old ver-

dict should be set aside. Any suggestion that the Pennsylvania Supreme Court said anything dif-

ferent would be disingenuous.

Yet, in asking this Court to approve its concession in this matter, supervisors at the District

Attorney’s Office, following procedures implemented by the District Attorney, either ignored these

precedential directives or, perhaps worse, intentionally chose not to follow them. And despite a

clear order from the Third Circuit directing consideration of “anti-mitigation evidence” and an

equally clear admonition from the Pennsylvania Supreme Court that unexplained concessions were

frowned upon and that a “merits review” must occur, the District Attorney’s Office failed to advise

this Court that prison adjustment evidence in this case included significant anti-mitigation evi-

dence involving Wharton’s violent escape from a City Hall courtroom. Moreover, and according

to its own (former) supervisor, the District Attorney’s Office communicated to this Court in

“vague” and unclear terms, “amenable” to misinterpretation, that the victim’s family, including the

only surviving victim, had approved of its concession, when in fact that was not the case. (ECF

No. 287-1 ¶ 12.)

For these reasons, I am obligated to conclude that the Philadelphia District Attorney’s Of-

fice and two of its supervisors violated Federal Rule of Civil Procedure 11(b)(3) based upon that

Office’s representations to this Court that lacked evidentiary support and were not in any way

formed after “an inquiry reasonable under the circumstances.”

I. BACKGROUND

The sole remaining question in this case was fairly straightforward: Was Wharton’s trial

counsel’s conduct in not investigating prison adjustment evidence at the penalty phase of Whar-

ton’s trial so deficient that, under Strickland v. Washington, 466 U.S. 688 (1984), there was a

reasonable probability that at least one juror would have voted against imposing the death penalty.

The District Attorney’s litigation tactics in addressing this question are the subject of this opinion.

A full explanation of this Court’s reasons for questioning the District Attorney’s conduct is

set out in my May 11, 2022 opinion and need not be repeated here. Briefly summarized, those

concerns involved statements made by the District Attorney’s Office regarding that Office’s deci-

sion to concede relief on Wharton’s last remaining habeas claim. The first representation was filed

on February 6, 2019 through a “Notice of Concession of Penalty Phase Relief.” This submission

was signed by the Supervisor of the Federal Litigation Unit. There it was represented that the

District Attorney’s Office had decided to concede relief “[f]ollowing review of [the] case by” the

Office’s “Capital Case Review Committee” and “communication with the victims’ family.” (ECF

No. 155.) The second representation was a proposed order submitted jointly by Wharton and the

District Attorney’s Office that stated that this Court had performed “a careful and independent

review of all of the parties’ submissions and all prior proceedings in this matter.” (ECF No. 156-

1.) Subsequently, in a brief filed April 3, 2019, the Office stated it had “carefully reviewed the

facts and law and determined that Wharton’s ineffectiveness claim fulfills the criteria articulated

in Strickland v. Washington, 466 U.S. 668 (1984).” (ECF No. 162.)2 (This brief was filed by the

2 In the first two pages of this filing, the District Attorney’s Office outlines its obligation to “pursue

justice” and to “change” course in death penalty collateral review matters (e.g., concede) at its own

discretion. (ECF No. 162 at 1-2.) But as noted above, just a few months prior to this filing, the

Pennsylvania Supreme Court in Brown rejected this discretion.

Supervisor of the Federal Litigation Unit and also named the Supervisor and Assistant Supervisor

of the Law Division below the signature line.) That submission went on to recite “facts” that sup-

ported the Office’s view that if prison adjustment evidence had been presented at the original sen-

tencing hearing, a death sentence would not have been reached. (ECF No. 162 at 4.) Omitted from

these facts, and indeed absent from any of these submissions, was any mention of Wharton’s es-

cape.

The present question is whether the District Attorney’s Office, or any of its attorneys,

should be sanctioned under Federal Rule of Civil Procedure 11(c) for making assertions in these

submissions that lacked “evidentiary support” and which were not formed based on an “inquiry

reasonable under the circumstances.” See Fed. R. Civ. P. 11(b)(3). This issue overlaps with a law-

yer’s duty under the Rules of Professional Conduct to refrain from making assertions to the court

on the lawyer’s “own knowledge” unless the lawyer “knows the assertion[s] [are] true or believes

[them] to be true on the basis of a reasonably diligent inquiry.” Pa. Rule of Professional Conduct

3.3 cmt. 3; In re Price, 732 A.2d 599, 603 (Pa. 1999).

II. SUMMARY OF THE SHOW-CAUSE HEARING TESTIMONY

After raising concerns regarding the District Attorney’s candor in the attempted concession

process, a hearing was held to allow the District Attorney’s Office, if it so chose, to offer explana-

tions. Generally, the Office’s outside counsel continually took the position that the District Attor-

ney’s Office was not obligated to explain its concession. (See, e.g., N.T. 6/23/22 at 11-12 (“[W]e

don’t think any explanation is necessary. … [W]e are not bringing [the attorneys] in to explain

anything.”).) Counsel also took the position that neither the Court, the victims, nor the public had

a right to know why that Office decided to concede a decades-old verdict. (N.T. 6/23/22 at 37 (Q:

“Don’t you think the public has a right to know the deliberative process that the office made when

conceding a death penalty?” A: “Absolutely not.”).) The Office relied, by analogy, to an exemption

in the federal Freedom of Information Act for “deliberative” materials, which protects federal gov-

ernment agencies from having to “operate in a fishbowl.” Assembly of the State of California v.

Dep’t of Commerce, 968 F.2d 916, 921 (9th Cir. 1992). Counsel also referenced, without specific

citations, cases stating that a criminal defendant is not entitled to know the workings of a prosecu-

tor’s death penalty committee. Long speaking objections by counsel often preceded answers to the

Court’s questions. What little information the hearing did produce is summarized below.

The recommendation to concede Wharton’s Strickland claim came from the District Attor-

ney’s Office’s Capital Case Review Committee, which consisted of department supervisors. The

Law Division Supervisor and Assistant Supervisor, both lawyers who litigated the remand hear-

ings, were on this Committee, but the Supervisor of the Federal Litigation Unit, who actually

signed and filed the Notice of Concession and follow-up documents relating to the concession,

was not. The Committee delivered its recommendation to the District Attorney, who made the

decision to concede. (N.T. 6/23/22 at 24, 42, 60.)

The Law Division Supervisor and Assistant Supervisor, both experienced attorneys, testi-

fied that they recommended conceding Wharton’s habeas petition without knowing or attempting

to know that Wharton had escaped from a City Hall courtroom. (N.T. 6/23/22 at 27, 34, 40, 61.)

The Law Division Supervisor did not know whether any other member of the Committee was

aware of Wharton’s escape while discussing the concession. (N.T. 6/23/22 at 41-42) The Assistant

Supervisor’s memory was that no one on the Committee was aware of the escape before the con-

cession recommendation was relayed to the District Attorney. (N.T. 6/23/22 at 61-62 (Q: “Was

anyone on the Committee aware?” A: “I don’t believe so.”).) When the Law Division Supervisor

was asked whether it would have been appropriate for a judge to sign the order proposed by the

District Attorney stating that the Court had performed a “careful and independent review” while

not knowing of Wharton’s escape, she responded that she could not “answer that question for the

Court.” (N.T. 6/23/22 at 59.) As noted above, counsel for the Office continually objected to any

questioning into “deliberative” matters, and thus the show-cause hearing shed little light as to why

the Office either did not consider Wharton’s escape or, if it was considered, how that Office con-

cluded that Wharton’s adjustment to prison was sufficiently positive to merit relief under Strick-

land.

The District Attorney’s supervisors’ testimony that they were unaware of the escape before

recommending concession was curiously contrary to what had previously been communicated to

this Court. On May 11, 2021, at the remand hearing on Wharton’s habeas petition, this Court di-

rectly asked the Assistant Supervisor whether the District Attorney’s Office was aware of Whar-

ton’s escape conviction before making the decision to concede Wharton’s Strickland claim. With-

out any explanation or elaboration, he responded “yes.” (N.T. 5/11/21 at 66.) That same attorney

was asked at the June 23, 2022 show-cause hearing to reconcile this answer with his newfound

position that no one on the Committee was aware of Wharton’s escape before recommending con-

cession. The Assistant Supervisor responded that his prior affirmative answer was only meant to

convey that the District Attorney’s Office “as an entity” (e.g., the Office as configured thirty years

ago) was aware of the escape but that no one on the Committee that recommended the concession

in question was aware of it. (N.T. 6/23/22 at 75-77.)

An affidavit submitted before the show-cause hearing by the Supervisor of the Federal

Litigation Unit who submitted the concession sheds considerable light on the District Attorney’s

litigation conduct in this case. (ECF No. 287-1.) That Supervisor stated that he signed the Notice

of Concession despite having no knowledge of the basis for the concession and despite having

undertaken no investigation. (ECF No. 287-1 ¶¶ 5, 8, 10-11.) When asked why the task of signing

the Notice of Concession on behalf of the Office was given to a lawyer with no knowledge of why

the concession was being submitted, the Law Division Supervisor responded only that this was the

Office’s “normal practice” and that other administrations had followed the same procedure. (N.T.

6/23/22 at 24, 51-53.) When pressed to explain why the Court was not advised of the escape, the

Law Division Supervisor stated, “[W]e didn’t tell you anything. And it isn’t a question of with-

holding. This is a question of our practice, our practice.” (N.T. 6/23/22 at 25.)

Regarding the District Attorney’s Office’s statement that its concession was made “[f]ol-

lowing … communication with the victims’ family,” the Federal Litigation Supervisor who signed

the concession explained in his affidavit that he did not mean to imply that the family had been

consulted prior to the Office’s decision or that all members of the family had been contacted. Ra-

ther, he intended only to convey that the family had been informed of the outcome of the Office’s

decision—that is, they had been told the Office would concede. This supervisor acknowledged that

his statement regarding “communication with the victims’ family” was “vague,” “lack[ed] … clar-

ity,” and was “amenable to the interpretation that the victims’ family agreed with the concession

of penalty phase relief.” He also apologized for his lack of clarity. (ECF No. 281-1 ¶ 12.) The

Supervisor of the Law Division also recognized the Office’s misstep in not notifying the only

surviving victim of Wharton’s crimes that the District Attorney would be seeking a concession.

She stated that victim communication was not her responsibility and acknowledged that contacting

that victim was “something we should have done. We recognize our mistake.” (N.T. 6/23/22 at

48.)

III. LEGAL STANDARD: FEDERAL RULE OF CIVIL PROCEDURE 11

Rule 11(b) imposes three duties relevant here: the duty to conduct an “inquiry reasonable

under the circumstances” before filing a paper with the Court, 11(b); the duty not to make filings

for “any improper purpose,” 11(b)(1); and the duty to refrain from asserting “factual contentions”

that lack “evidentiary support,” 11(b)(3). Although Rule 11 does not include all aspects of the

ethical duty of candor to the Court, that obligation informs Rule 11’s prohibition on making un-

supported factual contentions. See Notes of the Advisory Committee on the 1993 Amendment

(Rule 11 “emphasizes the duty of candor … .”); Presidential Lake Fire & Rescue Squad, Inc. v.

Doherty, No. 12-cv-5621, 2014 WL 318330, at *5-6 (D.N.J. Jan. 29, 2014) (using Rule of Profes-

sional Conduct 3.3(a) to inform the Rule 11 analysis).

“The legal standard to be applied when evaluating conduct allegedly violative of Rule 11

is reasonableness under the circumstances … .” Ford Motor Co. v. Summit Motor Products, Inc.,

930 F.2d 277, 289 (3d Cir. 1991).3 Regarding the duty to refrain from making factual assertions

that lack “evidentiary support,” the question is whether the filer had “an objective knowledge or

belief at the time of the filing of a challenged paper that the claim was well-grounded in law and

fact.” Ford Motor Co., 930 F.2d at 289 (quotation marks omitted). “A court should test the signer’s

conduct by inquiring what was reasonable for the signer to believe at the time the pleading was

submitted.” New Life Homecare, Inc. v. Blue Cross of Northeastern Pa., No. 06-cv-2485, 2008

WL 534472, at *2 (M.D. Pa. Feb. 20, 2008). Rule 11 “does not recognize a ‘pure heart and empty

3 With respect to the duty to conduct a pre-filing inquiry, four factors typically relevant in assessing

whether the signer’s inquiry was adequate are: “the amount of time available to the signer for

conducting the factual and legal investigation; the necessity for reliance on a client for the under-

lying factual information; the plausibility of the legal position advocated; and whether the case

was referred to the signer by another member of the Bar.” Mary Ann Pensiero, Inc. v. Lingle, 847

F.2d 90, 95 (3d Cir. 1988). Of these factors, reliance on the client and referral by another member

of the bar are not applicable here.

head’ defense.” In re Cendant Corp. Derivative Action Litig., 96 F. Supp. 2d 403, 405 (D.N.J.

2000).

“If, after notice and a reasonable opportunity to respond, the court determines that Rule

11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm,

or party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1). “Gener-

ally, sanctions are prescribed only in the exceptional circumstance where a claim or motion is

patently unmeritorious or frivolous,” and even a “tenuous[] factual basis” may suffice to comply

with the Rule. Ford Motor Co., 930 F.2d at 289-90. “[W]here such exceptional circumstances exist,

the court is merely authorized, not required, to impose sanctions.” Pet Gifts USA, LLC v. Imagine

This Company, LLC, No. 14-cv-3884, 2019 WL 3208512, at *2 (D.N.J. July 15, 2019). Sua sponte

sanctions are ordinarily reserved for “only the most egregious cases.” Kovarik v. South Annville

Township, No. 17-cv-97, 2018 WL 1428293, at *17 (M.D. Pa. March 22, 2018).

IV. DISCUSSION OF REPRESENTATIONS IN THE DISTRICT ATTORNEY’S OF-

FICE’S FILINGS

A. Was a “reasonable inquiry” undertaken before the District Attorney’s Office

represented that it had conducted a careful review of the facts pertaining to

Wharton’s Strickland Claim?

As noted previously, the District Attorney’s Office submitted the following filings that

qualify as “other paper[s]” under Rule 11(b): (1) the “NOTICE OF CONCESSION OF PENALTY

PHASE RELIEF,” filed on February 6, 2019, stating:

Following review of this case by the Capital Case Review Committee of the Phila-

delphia District Attorney’s Office, communication with the victim’s family, and no-

tice to petitioner’s counsel, respondent hereby reports to the Court that it concedes

relief on petitioner’s remaining claim of ineffective assistance at the second penalty

hearing, and does not contest the grant of a conditional writ of habeas corpus with

respect to petitioner’s death sentences.

(ECF No. 155,) (2) a Proposed Order, filed on February 8, 2019 and submitted by counsel for

Wharton and the District Attorney’s Office indicating the Court had undertaken “a careful and

independent review” (ECF No. 156); and (3) a brief, filed on April 3, 2019 which stated that the

Office had “carefully reviewed the facts and law and determined that Wharton’s ineffectiveness

claim fulfill[ed] the criteria articulated in Strickland v. Washington, 466 U.S. 668 (1984).” (ECF

No. 162 (emphasis added).) This last submission also stated that the Office “determined that Whar-

ton’s remaining habeas claim—that his counsel was ineffective at his second penalty hearing for

not investigating and presenting evidence of his adjustment to prison—is not lacking in merit.”

(Id.)4

Despite clear instructions from the Third Circuit that anti-mitigation evidence must be con-

sidered and the Pennsylvania Supreme Court’s edict that a death penalty verdict on collateral re-

view can only be vacated after appropriate judicial review of the merits of the claim, none of these

filings contained any mention of possibly the worst type of prison adjustment—a violent escape

from City Hall in 1986 and subsequent escape conviction. Under these particular circumstances,

the Court concludes that the District Attorney’s Office’s representation that they had “carefully

reviewed the facts” was unreasonable, as was its request that the Court sign an order indicating

that a “careful review” had occurred. In short, in light of the Sixth Amendment issue before the

Court, not identifying Wharton’s escape cannot, under any circumstances, constitute a “reasonable

4 The District Attorney’s Office argues that representations in this brief should be ignored because

it was filed in response to an order calling for a legal analysis of the weight to be afforded the

Office’s concession. The Court disagrees. Even assuming the Office could somehow have re-

sponded to this Court’s order without citing facts, the District Attorney’s Office not only volun-

teered facts but used them to argue that its concession reflected “considered judgment” and was

entitled to “great weight” such that a court “may … accept” it. (ECF No. 162 at 5.) Having offered

its “careful[] review[]” finding “merit” to Wharton’s Strickland claim as a basis for its requested

relief, the District Attorney’s Office cannot now claim that these representations were irrelevant.

inquiry,” nor do these factual representations have any evidentiary support. Ironically, the District

Attorney’s Office advocates that Wharton’s death sentence be vacated because trial counsel failed

to investigate prison adjustment, yet the District Attorney’s Office failed to do the same.

The District Attorney’s Office offers numerous and wide-ranging explanations for its con-

duct. The first is that its statement that Wharton’s Strickland claim was meritorious was a legal

position, not a factual representation. But the language of its concession, proposed order, and brief

says otherwise: That Office represented that it had performed a “careful[] review[],” which was a

factual statement. Any “careful[] review[]” must, as the Third Circuit directed, have included ex-

amination of possible negative prison adjustment evidence, and discovery of Wharton’s escape

could have easily been undertaken.5 In fact, according to the logic of the Assistant Supervisor, that

Office, “as an entity” was aware of the escape. But no matter which version is accepted, the fact

remains that the District Attorney’s Office failed to alert the Court to such powerful anti-mitigation

evidence.

The Office’s statement that it had “carefully reviewed” this matter and found that Whar-

ton’s Strickland claim was meritorious unmistakably represented that the Office had found no facts

that would lead any reasonable judge to reject the claim. In particular, the Office’s citation in its

brief to two specific facts supporting Strickland’s prejudice prong implied that those facts were

significant in the context of its “careful[] review[]”—or, at least, not overwhelmed by other undis-

closed facts. The American Bar Association has recognized that “[i]n light of the prosecutor’s pub-

lic responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor

5 The Attorney General’s Office became aware of Wharton’s escape through a simple review of

Wharton’s criminal history, which included a conviction for escape. (See ECF No. 311.)

to the courts … .” American Bar Association, Standards for the Prosecution Function § 3-1.4. Ac-

cordingly, when a prosecutor concedes relief and supplies certain facts “to [a] court[],” there is an

implied representation that the prosecutor’s basis for its position was made after a “reasonable

inquiry,” is fully informed, and is not misleading.

The District Attorney’s Office continues to press that although it is a public, prosecuting

office, a heightened duty of candor does not apply to its communications with the Court. The

Office asserts that this heightened duty only applies to disclosures to the defense of exculpatory

facts under Brady v. Maryland, 373 U.S. 83 (1963), and Pennsylvania Rule of Professional Con-

duct 3.8(d). (ECF No. 300-1 at 16.) The Court disagrees.

Not surprisingly, authority is sparse on the ethical duties of prosecutors who advocate, as

the District Attorney did here, for death penalty relief on behalf of a defendant on habeas review.

But an analogous situation occurs when a prosecutor and defense counsel jointly recommend a

sentence that is favorable to a defendant. Under those circumstances, the prosecutor may not with-

hold relevant information from the sentencing court even where a favorable agreement has been

reached with a defendant, and even if such information is adverse to the defendant. See United

States v. Casillas, 853 F.3d 215, 218 (5th Cir. 2017); Bruce A. Green, Candor in Criminal Advo-

cacy?, 44 Hofstra L. Rev. 1105, 1124 (2016). The Fifth Circuit’s reasoning squarely applies here:

“[I]f an attorney for the Government is aware that the court lacks certain relevant factual infor-

mation or that the court is laboring under mistaken premises, the attorney, as a prosecutor and

officer of the court, … has the duty to bring the correct state of affairs to the attention of the court.”

United States v. Block, 660 F.2d 1086, 1091 (5th Cir. 1981). Failing to disclose these facts lacks

candor because “the public has an interest in the decision being informed by knowledge of the

provable facts that are likely to matter,” Green, supra, at 1124, and because nondisclosure “im-

properly undercut[s] the sentencing court’s role.” United States v. Aragon, 922 F.3d 1102, 1116

(10th Cir. 2019) (Holmes, J., concurring). A private concession by a prosecutor that produces no

public record justifying relief is “reminiscent of the Star-Chamber.” Brown, 196 A.3d at 146.

Even after the highest Pennsylvania court, which the District Attorney routinely appears

before, spelled out in clear terms the proper process in collateral death penalty matters, the District

Attorney’s Office continues to misunderstand its role. As the Pennsylvania Supreme Court ex-

plained in Brown, when a habeas petitioner and a prosecutor jointly request that a sentence be

overturned, they are asking the Court to use its power to bring about a change neither party itself,

nor both acting together, can accomplish. If the District Attorney’s Office files its concession on a

misleading presentation of the facts, it attempts to misuse the Court’s power, which is an “improper

purpose” under Rule 11(b)(1).

In a further attempt to justify its conduct, the District Attorney’s Office also disagrees with

the suggestion that the agreement it reached with Wharton’s counsel, and the lack of adversity it

thereby created, heightened their duty to be candid (and “careful[]”) about facts that might preclude

relief. The District Attorney’s Office makes the perplexing argument that even after its concession,

the proceeding remained adversarial because Wharton was also a party to it. (ECF No. 300-1 at

19.)

While the facts and posture of this case are unique, courts have recognized analogous sit-

uations in which a joint or unopposed request carries a similar affirmative duty to inform the court

of adverse facts as exists in ex parte proceedings: (1) when a prosecutor and defense attorney

jointly recommend a sentence, United States v. Block, 660 F.2d 1086, 1091 (5th Cir. 1981); (2)

when a prosecutor asks a judge to dismiss a case, In re Kress, 608 A.2d 328, 337 (N.J. 1992); (3)

when a class action named plaintiff and a defendant jointly propose a settlement, Arkansas Teach-

ers Retirement System v. State Street Bank & Trust Co., 512 F. Supp. 3d 196, 208 (D. Mass. 2020);

and (4) when a court-appointed agent requests fees. Eagan ex rel. Eagan v. Jackson, 855 F. Supp.

765, 790 (E.D. Pa. 1994). These situations have the following attributes in common: (1) the parties

seek relief they cannot achieve through private agreement; (2) failing to disclose adverse facts

results in a transfer of decision-making authority from the court to the parties, see Aragon, 922

F.3d at 1115-16 (Holmes, J., concurring); and (3) the adversarial system is inadequate to prevent

abuse. All of those attributes are present here. As a consequence, the District Attorney’s Office’s

statement that its careful review found merit to Wharton’s Strickland claim contained an implied

representation, subject to Rule 11(b)(3), that the District Attorney’s Office was not aware of any

significant, contrary facts that would lead any reasonable judge to deny the requested relief.

While Wharton’s habeas proceeding had only two formal parties, the Court also disagrees

with the District Attorney’s outside counsel that there were no other interests at play in understand-

ing why relief was conceded. The public had an “interest that a result be reached which promotes

a well-ordered society,” which “is foremost in every criminal proceeding.” Young v. United States,

315 U.S. 257, 259 (1942). The victim and the victim’s family had a right to clear communication

and had an interest in being heard and treated with fairness and respect. 18 U.S.C. § 3771(b)(2)(A).

And the state had an interest in having its judgments set aside only “upon proper constitutional

grounds” rather than the concession of an “elected legal officer of one political subdivision within

the State.” Sibron v. New York 392 U.S. 40, 58 (1968); see also Carter v. City of Philadelphia, 181

F.3d 339, 349 (3d Cir. 1999) (“Pennsylvania’s case law defines district attorneys—Philadelphia

District Attorneys in particular—as local, and expressly not state, officials.”); United States v. Ben-

dolph, 409 F.3d 155, 166 (3d Cir. 2005) (Congress did not “intend[] to relegate the efficacy of its

reforms [in 18 U.S.C. § 2254] to the vagaries of a prosecutor’s decisions or mistakes.”).

The last of those three interests—deference to final state court judgments—deserves spe-

cial consideration. While there are no specific ethical rules in habeas corpus proceedings, there are

unique opportunities for abuse that have come to light here. The state of Pennsylvania does not

afford the Philadelphia District Attorney’s Office discretion to set aside a death sentence once im-

posed. Brown, 196 A.3d at 149. The state’s justifications for that rule are numerous and include

that past sentences cannot be left to “the changing tides of the election cycles.” Id. Pennsylvania

is entitled to limit the District Attorney’s discretion in this manner because “States retain autonomy

to establish their own governmental processes,” Arizona State Legislature v. Arizona Indep. Re-

districting Comm’n, 576 U.S. 787, 816 (2015), and “State[s] … ha[ve] … flexibility in deciding

what procedures are needed in the context of postconviction relief.” Dist. Attorney’s Off. for Third

Jud. Dist. v. Osborne, 557 U.S. 52, 69 (2009).

As it relates to Rule 11, a prosecutor may not avoid those restrictions by submitting only

selected facts to a federal court. This is because federal habeas jurisdiction is premised on the

existence of a federal question. Mason v. Myers, 208 F.3d 414, 417 n.6 (3d Cir. 2000). If the federal

court is unaware that the presentation is misleading, it cannot enforce the limits of its own juris-

diction, which is particularly important when the court has been asked to issue the “extraordinary

remedy” of habeas corpus. See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).

Here, were it not for the assistance of the Attorney General, there was a risk that this Court

may have ordered habeas relief that, under the law, it had no power to grant—a risk that heightened

the District Attorney’s Office’s duty to conduct a reasonable inquiry before requesting relief. Put

another way, had this Court simply accepted the concession, and the public and victims later

learned of the escape, the Court’s statement that it had “carefully” reviewed the matter could right-

fully be called into question, as would the public’s trust in the legal process. Apparently in its zeal

to overturn a jury’s death sentence, the District Attorney’s Office did not bother to take this factor

into account.

The District Attorney’s Office offers yet another justification for its conduct by noting that

judges in this District have frequently granted its requests to concede habeas relief. The routine

use of concessions in federal court to modify state sentences without a merits review might be

tolerable if it were a permissible exercise of discretion. But where it is a discretion forbidden in

the “strongest terms,” Brown, 196 A.3d at 146, a concern emerges that these concessions serve an

improper purpose. Cf. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“A State’s procedural

rules are of vital importance to the orderly administration of its criminal courts; when a federal

court permits them to be readily evaded, it undermines the criminal justice system.”).

The District Attorney’s Office lastly claims that it never opposed the development of facts

regarding Wharton’s habeas petition. (ECF No. 300-1 at 5-6; N.T., 6/23/22, 17-18.) That response

is not credible. The Office had an opportunity to develop the facts when remand was ordered but

chose to only put before the Court a concession based upon limited selected facts. The District

Attorney’s Office may have also forgotten that it objected to the Attorney General’s Office’s con-

ducting a “factual investigation,” “calling witnesses,” “introducing evidence,” and “develop[ing]

a factual record.” (ECF No. 226 at 5, 7-8.) And in post-hearing briefing, in objecting to the Attor-

ney General’s participation, the District Attorney’s Office called the use of the Attorney General’s

Office as an amicus to complete the record “unprecedented.”6

Given all of the above, the Court concludes that the District Attorney’s Office’s represen-

tation that it had conducted a careful factual review and found merit to Wharton’s Strickland claim

lacked an “evidentiary basis” as required by Rule 11. Two key members of the Committee that

conducted the purported review claimed that they were unaware that Wharton’s “prison adjustment

evidence” included evidence of an escape attempt. This information was available in Wharton’s

criminal history as a conviction for “escape.” Whatever review the Committee performed, it was

either not of the merits or was not “careful.”

The Court also finds that the District Attorney’s Office represented that Wharton’s Strick-

land claim was meritorious without conducting an “inquiry reasonable under the circumstances.”

Wharton’s escape attempt resulted in a conviction that appears on his criminal history, which can

be found simply by typing Wharton’s name into Pennsylvania’s Unified Judicial System Web Por-

tal to reveal a conviction for “ESCAPE.” Yet two supervisors on the Committee that recommended

conceding Wharton’s habeas petition testified that they were unaware of the escape attempt at the

time and did not know whether the District Attorney, who approved the concession, was aware of

it. That two experienced attorneys recommended taking the extraordinary step of attempting to

vacate a decades-old death penalty sentence without examining Wharton’s criminal history is a

matter of inter-office process. But to then ask a court to approve such extraordinary relief based

6 The Attorney General’s Office was also invited by the Pennsylvania Supreme Court to participate

as an amicus in Brown. See 196 A.3d at 142).

on such a patently deficient inquiry is not “reasonable under the circumstances” and implicates the

submission requirements of the Federal Rules of Civil Procedure.

Rule 11 also instructs that the “circumstances” at play be considered. Under the circum-

stances of this case, it cannot be ignored that the underlying facts involved the brutal murder of

two parents and an infant left by Wharton to freeze to death who miraculously survived. Under

these circumstances, and given the death sentences that followed, the District Attorney’s Office’s

failure to more carefully review this matter before involving the Court further implicates Rule 11.

In failing to conduct the required “inquiry reasonable under the circumstances,” the supervisors on

the Committee and District Attorney’s Office violated Rule 11.

B. Communication with the Victims’ Family

The District Attorney’s Office also represented that its concession was made “[f]ollowing

… communication with the victims’ family.” The supervising attorney who signed this statement

explained that he did not mean to say that the victims’ family had been consulted prior to the

decision or that they agreed with that concession. Rather, he meant only that the decision to con-

cede had been communicated to the victims’ family after it was made. (ECF No. 287-1 ¶ 12.) But

that same supervising attorney acknowledged that this submission to the Court made on behalf of

the District Attorney’s Office was susceptible to the interpretation that the victims’ family had been

consulted and that they concurred in the outcome, which was not true. The supervising attorney

also admitted that his communication lacked clarity and was vague.

As to the intended assertion—that the victims’ family had been notified of the planned

concession—the Supervisor of the Federal Litigation Unit who was the signing attorney arrived at

this understanding through conversations with the Office’s Victim Witness Coordinator. But some-

how this conversation failed to convey to him that only one family member had been contacted,

and that the sole surviving victim, Lisa Hart-Newman, had never been contacted. Both he and the

Victim Witness Coordinator were therefore unaware that several family members, including Lisa

Hart-Newman, would have been vehemently opposed to the concession had they been informed of

it.

This Court (which only learned of the family’s opposition through the Attorney General’s

Office) is not the only one who considered the District Attorney’s representations misleading. Lisa

Hart-Newman, the infant, now age thirty-seven, who was left to die by Wharton after her parents

were murdered, stated she was “extremely disappointed to learn of the District Attorney’s stance

and very troubled that he implied that the family approved of his viewpoint.” (ECF No. 171-5 at

16.) Michael Allen, one of the brothers of the deceased, also noted, “[I]t would appear that there

was a substantially deficient briefing by the DA’s office regarding the significance and implications

for vacating Wharton’s death penalty.” (Id. at 17.)

Accordingly, the Court finds that the District Attorney’s Office’s statement regarding its

communication with the victims’ family was false and yet another representation to the Court made

after an inquiry that was not reasonable under the circumstances. The supervising attorney who

made this representation did so at the direction of his supervisors, was not personally aware of the

error, and has apologized for this miscommunication.

V. VIOLATION AND SANCTIONS

The Supervisor of Federal Litigation filed the Notice of Concession and signed the other

submitted documents in question. With respect to his statement that the Office had “carefully re-

viewed the facts” in determining that Wharton’s ineffectiveness claim fulfilled the Strickland

standard, I credit his explanation that he relied solely on communications from supervisors that a

careful review had actually been conducted. He also explained that he had no input regarding the

decision to concede and no authority to ask the Capital Case Review Committee to reconsider its

decision. In filing the Notice of Concession, he followed the directive of the Assistant Supervisor

of the Law Division and the Office’s procedures.

Rule 11 does not preclude the signer from relying on information from other persons. See

Garr v. U.S. Healthcare, Inc., 22 F.3d 1274, 1278-79 (3d Cir. 1994). Comment 1 to Pennsylvania

Rule of Professional Conduct 5.2 is informative and instructs that “if a subordinate filed a frivolous

pleading at the direction of a supervisor, the subordinate would not be guilty of a professional

violation unless the subordinate knew of the document’s frivolous character.” See also Pa. RPC

5.2 cmt. 2 (when reasonable to do so, a lawyer may take direction from a supervisor so that the

office can follow a “consistent course of action”).

While a deeper inquiry on the part of Federal Litigation Supervisor would have been pref-

erable, it was not “patently … frivolous” for this lawyer to assume that the highly experienced

attorneys on the Capital Case Review Committee and the District Attorney himself had performed

a sufficient investigation before directing that a concession in a death penalty case be filed. This

same attorney also acted with candor and contrition in acknowledging that his statement regarding

communication with the victims’ family was unclear and susceptible to a misleading interpretation

and has apologized for this mistake. Compare Dr. Pepper Bottling Co. of Texas v. Del Monte Corp.,

No. 88-cv-3012, 1992 WL 438013, at *1 (N.D. Tex. Jan. 7, 1993) (declining to issue further sanc-

tions based on “the forthright contrition and recognition of error expressed by [the attorney] in his

affidavit”), with Milani v. International Business Machines Corp., No. 02-cv-3346, 2004 WL

3068451, at *2 (S.D.N.Y. Dec. 30, 2004) (imposing sanctions in part based on the attorney’s “utter

lack of contrition[] or even regret”). For these reasons, the Court does not find that the Federal

Litigation Supervisor violated Rule 11.

The Court reluctantly concludes that a different view must be taken regarding the Law

Division Supervisor and Assistant Supervisor, both of whom were on the Capital Case Review

Committee. The Assistant Supervisor directed the Federal Litigation Supervisor to file the Notice

of Concession, and both the Law Division Supervisor and Assistant Supervisor had their names

included on the brief representing that the Committee had “carefully” reviewed Wharton’s Strick-

land claim. The District Attorney’s Office’s conduct as a whole must also be considered, as Rule

11 directs that sanctions may be imposed on parties and law firms when these entities are “respon-

sible for [a] violation” of the Rule. See Fed. R. Civ. P. 11(c)(1).

As leaders of the Office’s Division that oversees the “Law,” and who presumably provide

advice and analysis on controlling precedent to the District Attorney, the Supervisor and Assistant

Supervisor must have been aware that Strickland’s prejudice prong required an assessment of mit-

igation evidence not presented by trial counsel in conjunction with possible anti-mitigation evi-

dence. See Wharton, 722 F. App’x at 283 (“[W]e must also take account of the anti-mitigation

evidence that the Commonwealth would have presented to rebut the petitioner's mitigation testi-

mony.”). They were also well aware that recent Pennsylvania Supreme Court precedent mandated

that a full development of the facts be undertaken before relief could be granted. Yet the District

Attorney’s Office, through these supervisors, directed representations to the Court that the Office

had “carefully reviewed the facts” when in fact that did not occur. The assertion that a careful

review had been conducted by the committee is irreconcilable with the testimony of two supervi-

sors involved in the review that they were ignorant of Wharton’s escape attempt. And it is worth

repeating that the Court afforded these supervisors the opportunity to explain how their review of

the facts was “careful[],” yet at that hearing, their counsel referred to a deliberative process privi-

lege and engaged in long speaking objections, which at times suggested answers, such that little

information was obtained.

The close timing between the Pennsylvania Supreme Court’s ruling in Brown that the Dis-

trict Attorney’s Office does not have discretion to concede a death penalty sentence on collateral

review absent a full exploration of facts and the Office’s strategy of doing exactly that in this case

only exacerbates this situation. The Brown decision was issued just four months before the Office’s

concession here, and counsel of record in Brown was the Assistant Supervisor who was also on

the Committee that recommended conceding Wharton’s federal habeas petition. In Brown, The

District Attorney’s Office attempted to reverse years of support for a jury’s verdict through a “new-

found agreement” with no substantive factual reasons. The same tactic was attempted in this fed-

eral case. In both cases, the Office sought to use prosecutorial discretion as a “substitute for inde-

pendent judicial review.” These parallels suggest an “improper purpose” for the District Attorney’s

Office’s concession in this case, namely an attempt to circumvent Brown in a forum that may be

unfamiliar with its strictures. A reasonable response to these concerns would have been to follow

Brown and present all necessary facts to this Court, or at the very least, to acknowledge missteps

made and provide assurances that the Office would not misuse federal jurisdiction to evade state

law. Instead, the Office’s supervisors were reluctant to explain their actions and offered little ac-

knowledgment of Brown or that their failure to advise of Wharton’s escape should have been han-

dled with more candor.

As to the assertion that the Office had decided to concede following “communication with

the victims’ family,” this statement gave the impression that the Office had conferred with the

family before making the decision to concede and that the family either agreed with the decision

or did not object to it. In fact, the only communication was to inform a single family member that

the Office was considering conceding. None of the family members supported the Office’s decision

to concede, and several expressed shock and indignation that the District Attorney’s Office had

suggested otherwise. While the Court declines to sanction the signing attorney, no similar justifi-

cations excuse the District Attorney’s Office as a whole for so carelessly invoking its communica-

tions with the victims’ family as support for its concession while, at the same time, making only a

cursory effort to contact them and no effort to consider their views. The Law Division Supervisor

could give no justification for why communication with the surviving victim and her family was

handled in this manner other than to say that victim communication was not her responsibility and

the Office made a “mistake.” (N.T. 6/23/22 at 48.)

In contrast to the regret demonstrated by the (now former) Supervisor of the Federal Liti-

gation Unit, the District Attorney’s Office has steadfastly insisted that it has done nothing wrong,

owes no explanation, and will provide none. (N.T. 6/23/22 at 11-12.) Cf. Ivy v. Kimbrough, 115

F.3d 550, 553 (8th Cir. 1997) (affirming sanctions where the “response to the court’s order to show

cause regarding sanctions was so superficial as to be insulting to the court and to the policies

underlying Rule 11”). A glaring example of this continued tactic is the Assistant Supervisor’s at-

tempt to rationalize his present position that he and others on the Committee were unaware of the

escape with his prior statement to the Court, made during the remand hearings, that the Office was

aware of it. His explanation that he originally meant only to convey that the Office as it existed

decades ago knew of the escape was clearly designed to obfuscate rather than clarify. The Court

finds this explanation incredible. When I originally asked that lawyer whether the Office was aware

of the escape when it filed its concession, there is no logical reason why I would need to know if

the Office “as an entity” and as it existed decades ago was aware of the escape. It would have taken

little effort for the Assistant Supervisor to clarify his answer with candor, stating, for instance,

“Your Honor, I do not know whether the current Administration considered the escape when we

decided to concede the death penalty, but, because an Assistant District Attorney was in the court-

room when the escape occurred in 1986, and Wharton pled guilty to escape, the Office was aware

of it at that time.” The Assistant Supervisor’s rationalization is yet another example of a litigation

practice on the part of the District Attorney’s Office designed to provide the Court with only lim-

ited information that suits the Office’s purposes.

Based on the foregoing, I find that the Law Division Supervisor, Assistant Supervisor and

the District Attorney’s Office violated Rule 11(b)(1) by asserting without “evidentiary support” or

an “inquiry reasonable under the circumstances” that it had “carefully reviewed the facts and law

and determined that Wharton’s ineffectiveness claim fulfills the criteria articulated in Strickland v.

Washington, 466 U.S. 668 (1984)” and that it had done so “[f]ollowing … communication with

the victims’ family.” I also find that the violation was sufficiently “egregious” and “exceptional”

under the circumstances of this case to warrant sanctions under Rule 11.

Rule 11 sanctions “must be limited to what suffices to deter repetition of the conduct or

comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). “In determining the

appropriate sanctions, the Court seeks the least significant sanction that will correct or deter similar

conduct … in the future.” Taggart v. Deutsche Bank Nat’l Trust Co., No. 20-cv-5503, 2021 WL

2255875, at *18 (E.D. Pa. June 3, 2021). “The sanction may include nonmonetary directives,” Fed.

R. Civ. P. 11(c)(4), and the Federal Judicial Conference has “expressed a preference … for non-

monetary sanctions” over monetary ones. Orlett v. Cincinnati Microwave, Inc., 954 F.2d 414, 421

(6th Cir. 1992). A wide variety of nonmonetary sanctions may be utilized. See Gaiardo v. Ethyl

Corp., 835 F.2d 479, 482 (3d Cir. 1987) (listing examples).

Had the District Attorney’s Office simply advised the Court of facts that would have al-

lowed a merits review, significant judicial resources and the time and effort expended by the law-

yers from the Attorney General’s Office would not have been necessary.7 The enormous cost re-

quired to uncover crucial facts that the District Attorney’s Office so carelessly disregarded could

suggest that monetary sanctions are necessary to deter similar conduct in the future. But the Court

ultimately decides not to impose monetary sanctions here as they would fall on the taxpayers of

Philadelphia and thus may not suffice to deter repetition of the conduct at issue.

In determining an appropriate nonmonetary sanction, I am guided by federal crime victims’

rights legislation. “In a Federal habeas corpus proceeding arising out of a State conviction, the

court shall ensure that a crime victim is afforded” certain rights, including the right not to be ex-

cluded from the proceedings, the right to be heard, and the right to be treated with dignity and

respect. 18 U.S.C. § 3771(b)(2)(A). While the law directs those obligations to courts rather than

prosecutors, § 3771(b)(2)(C), “courts … make decisions based on information supplied by the

parties” and “must depend on the parties to provide accurate information.” Armstrong Surgical

Center, Inc. v. Armstrong County Memorial Hospital, 185 F.3d 154, 176 (3d Cir. 1999). The Dis-

trict Attorney’s Office’s conduct in this case impeded my ability to ensure that the victims were

provided their statutory rights—as well as their broader right, shared with the public generally, to

have courts issue decisions “informed by knowledge of the provable facts that are likely to matter.”

Green, supra, at 1124.

Other than the admonition contained in this Opinion, the Court declines to impose any

monetary or non-monetary sanctions on the Law Division Supervisor and Assistant Supervisor.

7 The Court greatly appreciates the resources and input provided by the Attorney General’s Office.

Both are public servants who were following the policies and procedures of the Office that em-

ployed them. I will however impose the following nonmonetary sanction on the District Attorney’s

Office under Federal Rule of Civil Procedure 11(c)(4):

First, within thirty (30) days of the filing of this opinion, the District Attorney’s Office shall

send separate written apologies to victim family members Tony Hart, Michael Allen, Patrice Carr,

and to victim Lisa Hart-Newman for representing that it engaged in “communication with the vic-

tims’ family[.]” As the testimony of the two Law Division supervisors was that the District Attor-

ney approved and implemented internal procedures that created the need for this sanction, and that

the District Attorney had the sole, ultimate authority to direct that the misleading Notice of Con-

cession be filed, the apologies shall come from the District Attorney, Lawrence Krasner, person-

ally. Copies of the apologies shall be filed with the Court.

Second, while I have no authority to control the conduct of the District Attorney in litiga-

tion before other judges, in cases where I am assigned, all concessions by the Philadelphia District

Attorney’s Office in proceedings under 28 U.S.C. § 2254 must be accompanied by a full, balanced

explanation of facts that could affect my decision to accept or reject the concession. For instance,

and by way of suggestion, the concession in this case could have stated:

“As directed by the United States Court of Appeals for the Third Circuit, and

as it relates to the Sixth Amendment issue before the Court, the Capital Case

Review Committee of the Philadelphia District Attorney’s Office has reviewed

and considered both positive and negative prison adjustment evidence. Con-

sistent with our duty of candor and the Third Circuit’s directive that anti-mit-

igation evidence be considered, we also advise that this evidence includes an

incident in 1986 in which Mr. Wharton escaped from a City Hall courtroom.

Having carefully reviewed all of the facts and law, including anti-mitigation

evidence, we advise that the District Attorney’s Office believes that Wharton’s

positive prison adjustment evidence is sufficiently mitigating to satisfy the

prejudice prong of Strickland. The District Attorney’s Office also advises that

it has contacted the victims’ immediate family (including the only surviving

victim), and all family members are opposed to this concession.”

An appropriate order will follow.8

8 Local Civil Rule 83.6(V)(A) states the following:

When the misconduct or other basis for action against an attorney (other than as set

forth in Rule II) or allegations of the same which, if substantiated, would warrant

discipline or other action against an attorney admitted to practice before this court

shall come to the attention of a Judge of this court, whether by complaint or other-

wise, and the applicable procedure is not otherwise mandated by these Rules, the

judge shall refer the matter to the Chief Judge who shall issue an order to show

cause.

For the reasons set forth above, this matter will be referred to the Chief Judge of this Court.