Amicus Curiae Brief — Robert Wharton, Petitioner v. Joseph Terra, Superintendent, State Correctional Institution at Phoenix

No. 24-6038

________________________________________________________

In the Supreme Court of the United States

_____________________________

ROBERT WHARTON,

Petitioner

v.

JOSEPH TERRA, SUPERINTENDENT,

STATE CORRECTIONAL INSTITUTION AT PHOENIX,

Respondent

________________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

____________________________________________

BRIEF OF THE PENNSYLVANIA OFFICE OF ATTORNEY

GENERAL, AMICUS CURIAE IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

________________________________________________

DAVID W. SUNDAY

RONALD EISENBERG

Attorney General

Pennsylvania

Chief Deputy Attorney General

Appeals Section

(Counsel of Record)

JAMES A. DONAHUE, III

First Deputy

Attorney General

KIRSTEN E. HEINE

Executive Deputy

Attorney General

Criminal Law Division

CARI L. MAHLER

Senior Dep. Attorney General

1600 Arch Street

Philadelphia, PA 19103

(267) 940-6676

reisenberg@attorneygeneral.gov

i

Table of Contents

Table of Citations

ii

Interest of Amicus Curiae

1

Counter-Statement of the Case

3

Summary of Argument

16

Argument

18

The petition paints a thin veneer of legal novelty

over a host of incomplete and inaccurate factual

assertions. The questions presented are not certworthy.

18

I.

There is no novel “one juror” weighing issue:

Wharton simply fails to acknowledge the

egregiousness of the facts contradicting his

new mitigation evidence.

18

II. There is no novel Brecht issue: Wharton

simply fails to acknowledge the extent of the

overwhelming evidence of his guilt.

21

Conclusion

25

ii

Table of Citations

Cases

Brecht v. Abrahamson, 507 U.S. 619 (1993)

i, 17, 21

Bruton v. United States, 391 U.S. 123

(1968)

8, 9, 10, 15, 17, 21

Commonwealth v. Wharton, 607 A.2d 710

(Pa. 1992)

3, 4, 5, 7, 8

Commonwealth v. Wharton, 665 A.2d 458

(Pa. 1995)

8

Commonwealth v. Wharton, 811 A.2d 978

(Pa. 2002)

8

Commonwealth v. Wharton, 886 A.2d 1120

(Pa. 2005)

8

Commonwealth v. Wharton, 961 A.2d 107

(Pa. 2008)

8

Commonwealth v. Wharton, 263 A.2d 561

(Pa. 2021)

8

Cullen v. Pinholster, 563 U.S. 170 (2011)

18

Gray v. Maryland, 523 U.S. 185 (1998)

17

O’Neal v. McAninch, 513 U.S. 432 (1995)

21

iii

Strickland v. Washington, 466 U.S. 668

(1984)

13, 18, 19

Wharton v. Superintendent Graterford SCI,

95 F.4th 140 (3rd Cir. 2024)

14

Wharton v. Superintendent SCI Graterford,

95 F.4th 113 (3rd Cir. 2024)

15

Wharton v. Vaughn, 722 Fed. Appx. 268

(3rd Cir. 2018)

10, 21

Wharton v. Vaughn, 2012 WL 3535866

(E.D.Pa. 2012)

3-6, 7, 9, 22, 23

Wharton v. Vaughn, 2022 WL 1488038

(E.D. Pa. 2022)

1, 4-6, 9-14, 19, 20

Wong v. Belmontes, 558 U.S. 15 (2009)

18, 20

Statutes and Rules

28 U.S.C. § 1254

15

71 P.S. § 206(a)

1

U.S. Sup. Ct. R. 13.3

15

Fed. R. Civ. P. 11

2, 14

1

Interest of Amicus Curiae1

Under Pennsylvania law, the Attorney General is

“the chief law enforcement officer of the Commonwealth.” 71 P.S. § 206(a). Most criminal cases,

however, are handled by local prosecutors who are not

under the Attorney General’s authority. In this

federal habeas case, the district court, concerned

about the local prosecutor’s candor, asked the Office of

Attorney General (OAG) to assist the court by

participating as an amicus. As explained below, OAG

continues in that effort here.

A local district attorney’s office prosecuted this

capital case in 1985 and defended the conviction

through a series of appeals over three decades. In

2019, a newly elected district attorney, who had

pledged opposition to the death penalty, made a

“complete about-face.” Wharton v. Vaughn, 2022 WL

1488038, *3 (E.D. Pa. 2022). At the time, all of

Wharton’s legal claims had been rejected, except one:

that trial counsel was ineffective for not presenting, as

mitigation, evidence of his “positive adjustment to

prison.” Id. at *1. The court of appeals had remanded

the case, directing the district court to hold an

evidentiary hearing to explore the alleged mitigation

and the counter-mitigation. The district attorney’s

office informed the district court – after the office had

“carefully reviewed the facts” – that no anti-mitigation

1 Counsel of record received timely notice of the intent to file this

amicus brief.

2

evidence existed, that no hearing need be held, and

that Wharton’s sentence should be vacated. Id. at *18.

The district court called upon the Attorney

General’s Office to investigate. The Office discovered

that there was in fact serious anti-mitigation

evidence, in particular Wharton’s well-planned, nearsuccessful escape from custody in the midst of his

supposed positive adjustment to prison. The district

court proceeded with the evidentiary hearing that had

been ordered by the court of appeals. At the court’s

direction, OAG took part in the hearing, while the

district attorney’s office advocated for Wharton.

Following the hearing, the district court found that

the prison-adjustment ineffective counsel claim was

without merit. The court also found that the district

attorney’s office had violated Rule 11 by representing

that its careful review had uncovered no relevant

evidence.

On appeal, the district attorney’s office continued

to advocate in Wharton’s favor. The circuit court

upheld the denial of habeas relief, as well as the Rule

11 determination. Wharton then filed this certiorari

petition. The Attorney General’s Office provided

timely notice of its intention to file an amicus curiae

brief. In the absence of a response to the notice, the

Attorney General is without knowledge of the position

that the district attorney’s office will take in this

Court. Accordingly, OAG files this brief to advise the

Court of factual and legal considerations that may not

otherwise be presented, but may bear on the exercise

of discretionary review.

3

Counter-Statement of the Case

Incensed over a pay dispute, Wharton embarked

on a six-month “campaign of terror” against a young

couple, their church, and their infant daughter.

Wharton v. Vaughn, 2012 WL 3535866, *45 (E.D.Pa.

2012). In the end Wharton and his cohort choked the

mother and father to death in their home, and left the

baby to die. Fortuitously, she managed to survive and

live to play a role in the proceedings below.

The crime

Bradley Hart was a deacon of the Germantown

Christian Assembly, a church in Philadelphia. The

church had been founded by his father, Rev. Samuel

Hart. The church operated a radio station, which

Bradley managed. Commonwealth v. Wharton, 607

A.2d 710, 713 (Pa. 1992).

In the summer of 1983, Wharton was employed as

a worker doing renovations at the station and at

Bradley’s home. Disagreement over payment arose

because of subpar work. Wharton complained to

friends that Bradley was just being “too picky.”

Wharton repeatedly threatened Bradley’s brother

that, if Bradley didn’t pay up, he was “going to get

him.” 2012 WL 3535866 at *45-*46.

On Sunday, August 14, 1983, when he knew the

Harts would be at church, Wharton took a friend,

Larue Owens, to the Hart’s house. They broke in

through a basement window and stole several items,

4

leading the Harts to install an alarm system. 2022 WL

1488038 at *12.2

But later that month Wharton managed to break

in again, with Owens and another friend, Eric Mason.

This time they didn’t just take things; they also left a

surfeit of sinister messages. The walls were smeared

with mustard, pancake batter, and tomato sauce. The

refrigerator was left open and food was thrown into

the oven, which was left turned on. Clothes were piled

on a bed and splattered with paint and turpentine.

Urine and human excrement were left on the floors

and the thermostat was turned up. Faces in family

photos of Bradley, his wife Ferne, and baby Lisa were

blotted out with paint. The baby’s mattress was

slashed in the form of an X. A doll was left hanging

with a rope around its neck. 2022 WL 1488038 at *12.

And in case these signs were too subtle, the

intruders left a taunting note: “Thanks Bradley G.I.

Hart, You Have Got to Go Better Than This To Keep Us

Out. Clean Up Good, Didn't We. Thank You, Ha Ha Ha.”

2012 WL 3535866 at *46.

The physical damage was in the thousands of

dollars. Stolen items included televisions, stereo

equipment, cameras, telephones, appliances, and

other electronics. 607 A.2d at 713.

On September 4, 1983, Wharton and Mason broke

into the Harts’ church. They stole a computer and

2 See also trial transcript, 12/14/92 at 118-19, 12/15/92 at 112 and

122, 12/16/92 at 45.

5

cash. They stabbed a photo of Bradley to the wall with

a letter opener. 2022 WL 1488038 at *13. The next

day, police saw Mason carrying the computer, and he

was arrested for burglary. 607 A.2d at 713-14.

Following Mason’s arrest, Wharton’s campaign

went quiet for several months. But in early January

1984, he went back to the Hart’s house – this time

intending to find the family at home. Wharton

recruited a friend, Thomas Nixon, who had not

participated in the prior break-ins. The plan was for

Nixon, armed with a gun, to gain entry by knocking

on the door, claiming his car had broken down, and

asking to use the phone. Wharton and Mason waited

outside. Once Nixon was admitted, however, he saw

that another man was in the house, in addition to the

Harts. He abandoned the scheme. 2012 WL 3535866

at *48; 607 A.2d at 714.

Wharton tried again a few weeks later, on January

30, 1984, at 10pm. He forced entry at knifepoint, and

then let Mason in. Wharton made Bradley write him

a check for the money he thought he was owed. He and

Mason then tied up Mr. and Mrs. Hart and left them

to dread their fate for hours, while the intruders took

over the house, watching television and deciding what

to steal. They removed silverware, cameras, jewelry,

and the victims’ wallets, and put them in Bradley’s

car. 2012 WL 3535866 at *47; 2022 WL 1488038 at

*13.

Then they returned and got down to work. Bradley

was taken to the basement. His head was wrapped in

duct tape, and electrical cords were wound around his

6

neck. Mason then forced his face down into a pan of

water, put a foot on his back, and pulled and kept

pulling on the cords, until he was dead. Id.

Meanwhile, Wharton dragged Mrs. Hart upstairs,

along with the baby. He duct-taped her face from

eyebrows to chin, strangled her with her husband’s

necktie, and then held her head underwater in the

bathtub, “until the bubbles stopped.” He left her there,

draped over the side of the tub, with her shirt pulled

up to the shoulders and her pants pulled down to the

ankles. Id.

But Wharton was not quite done. Before leaving,

the thermostat was adjusted, just as it had been

during the August burglary. But instead of being

turned up in the heat of summer, this time it was

turned down, in the cold of winter. Lisa, the Hart’s

infant daughter, was left behind, either to freeze to

death or starve to death. She was seven months old.

Id.

By February 2, 1984, the third day after the breakin, Bradley’s father had grown concerned that he had

not heard from the family. Rev. Hart went to the house

and forced his way in. He found his dead son in the

basement and his dead daughter-in-law upstairs. And

he found his granddaughter Lisa, a foot or two from

her mother’s body. Miraculously, the baby was still

alive, severely dehydrated and in hypothermia. The

temperature in the house had dropped to 50 degrees.

On the way to the hospital, Lisa went into respiratory

arrest. Doctors managed to save her. 2012 WL

3535866 at *47, *62; 2022 WL 1488038 at *13.

7

Shortly afterward, Wharton was with his friend

Nixon, who had taken part in the aborted early

January visit to the Hart home. Nixon had read about

the murders in the paper. He asked Wharton if

Wharton and Mason were responsible. At first

Wharton claimed they had nothing to do with it. But

Nixon knew he was lying. He asked Wharton why they

hadn’t made sure to kill the baby along with the

parents. Wharton responded that “we couldn’t do it.”

2012 WL 3535866 at *48.

Then police received a tip. The mother of Wharton’s girlfriend told them he had given her a camera.

Police searched the girlfriend’s house and found the

camera and several other items that had been stolen

from the Harts. Wharton was arrested, was read his

rights, and was asked if he wanted to remain silent.

“Naw,” he responded, “it’s over now anyway. Naw, you

got me.” He then gave a detailed confession that

exactly matched the evidence found at the crime

scene, and named Mason as his partner in the

murders. 607 A.2d at 714; 2012 WL 3535866 at *39,

*47.

Police searched Mason’s house and found property

stolen from the victims. They also found a sneaker

that matched the footprint left on Bradley’s back when

he was strangled to death. Police searched Wharton’s

house as well. There they found the stolen silverware

and Ferne’s wallet – and also Bradley’s checkbook,

with a check dated January 30, the night he died. It

was made out to Wharton. 607 A.2d at 714-15; 2012

WL 3535866 at *48.

8

Pennsylvania proceedings

Wharton was tried together with Mason in 1985.

The jury convicted both and sentenced Wharton to

death. On direct appeal, the Pennsylvania Supreme

Court rejected Wharton’s new trial claims, including

the Bruton claim3 that Wharton raises in his current

certiorari petition. The court held that, assuming a

Bruton violation arguendo, any error was harmless.

607 A.2d at 716-19. As to penalty, however, the court

held that the jury had been mis-instructed on one of

the aggravating circumstances. The court vacated the

sentence and remanded for a new penalty hearing.

607 A.2d at 723-24.

The penalty was retried in 1992. The jury again

voted unanimously for death. This time the state court

upheld the sentence. Commonwealth v. Wharton, 665

A.2d 458 (Pa. 1995). A series of failed state postconviction petitions followed. See Commonwealth v.

Wharton, 811 A.2d 978 (Pa. 2002); Commonwealth v.

Wharton, 886 A.2d 1120 (Pa. 2005); Commonwealth v.

Wharton, 961 A.2d 107 (Pa. 2008); Commonwealth v.

Wharton, 263 A.2d 561 (Pa. 2021).

Federal habeas proceedings

By the new century, much of the action had moved

to federal court. Wharton filed a habeas petition in

2003, and then various amendments and discovery

requests that delayed its resolution. In 2011, the

3 Bruton v. United States, 391 U.S. 123 (1968).

9

district court granted Wharton’s request for an

evidentiary hearing on two of his new trial claims.

2012 WL 3535866 at *3-*4. The next year the court

issued a 156-page opinion addressing Wharton’s

almost two dozen assertions of guilt- and penaltyphase error. The court denied relief but granted Wharton a certificate of appealability on two of the new trial

claims, including the Bruton harmless error issue

presented here. Id. at *84.

The court of appeals upheld the district court’s

rulings on all of Wharton’s trial error claims. But the

court expanded the COA to include one additional

issue. That was a penalty phase ineffectiveness claim.

Wharton contended that his lawyer should have

presented evidence that he had been well behaved in

prison in the years between his first sentencing

hearing, in 1985, and the second sentencing hearing,

in 1992. Such evidence, according to Wharton, would

have bolstered the lawyer’s jury argument that a life

sentence would fully protect society, because “he is

never coming out of jail.” 2022 WL 1488038 at *14.

The court of appeals held that Wharton was

entitled to de novo review and an evidentiary hearing

on that issue. But the court recognized that, had the

defense presented evidence of positive prison

adjustment at the penalty trial, the prosecution would

have presented evidence of negative prison adjustment. A new hearing before the district court would

therefore have to include both Wharton’s new

mitigation and the Commonwealth’s anti-mitigation.

The court remanded, directing the district court to

10

proceed accordingly. Wharton v. Vaughn, 722 Fed.

Appx. 268, 283-84 (3rd Cir. 2018).

Wharton sought certiorari review in this Court as

to some of his new trial claims, which had all become

final with the Third Circuit’s ruling. He chose not to

include the Bruton harmless error claim. This Court

denied review. Wharton v. Vaughn, No. 18-5791 (U.S.,

Dec. 3, 2018).

Once the new trial question was settled, the

district court moved forward in February 2019 to

schedule the penalty phase ineffectiveness hearing

that had been mandated by the circuit. But before a

date could be selected, the district attorney’s office

filed a declaration to preempt the hearing, conceding

that Wharton should be granted relief on his prison

adjustment claim. The office stated that it had come

to this conclusion after careful review of the facts and

law, and after “communication with the victims’

family.” 2022 WL 1488038 at *3. In the absence of any

new law or facts to warrant the about-face, the district

court asked for further explanation. The district

attorney’s office responded that the existing evidence

of Wharton’s behavior between the 1985 and 1992

penalty hearings showed that he “posed no danger to

inmates or staff if he were sentenced to life.” Id. at *18.

At that point, the court called upon the thenPennsylvania Attorney General4 to participate as an

amicus. The court asked the Attorney General to look

4 Josh Shapiro, now Governor of Pennsylvania. The current elect-

ed state attorney general is David W. Sunday.

11

into the claims made by the district attorney’s office.

After OAG reported back on its findings, the court

determined that it must proceed with the evidentiary

hearing. Id. at *4.

Evidentiary hearing: escape and further

attempts

At the hearing, Wharton, assisted by the district

attorney’s office, largely relied on the prison records

that had been submitted with his habeas petition. As

the district court summed these up: “Wharton’s

positive behavior was that he attended … meetings,

actively pursued his education, took part in a poetry

activity, attended chapel services, was polite to staff,

and handled disagreements through the proper

grievance process rather than acting out.” Id. at *14.

Evidence uncovered by the Attorney General, and

presented at the hearing, revealed a far different

picture. In 1986, a year after he was first sentenced to

death, Wharton was in a courtroom in Philadelphia

City Hall. He was there to be sentenced for a home

invasion burglary wholly unrelated to his attacks on

the Harts. He told the judge that he now understood

he had “caused a lot of people pain and suffering.... I’m

sorry and any time I serve I will use to better myself.”

Id. at *5.

As he said these words, however, Wharton knew

that he did not intend to serve any time, let alone to

better himself while doing so. He had a plan. He had

feigned an injury in prison, so that one arm was in a

sling or cast, and only his other arm was handcuffed.

12

He had also somehow smuggled in a handcuff key. As

he was led out of the courtroom down a public hallway

to a lockup, Wharton assaulted his guard, uncuffed

himself, and bolted down a stairwell that led directly

to the street. Id. at *5, *11.

The guard was now too far away to catch him, and

so was forced to use his firearm. He shot twice,

managing to hit Wharton in the leg and slow him

down. The fleeing murderer still made it out to the

sidewalk, where he was finally apprehended, in the

midst of Philadelphia rush hour traffic at the very

center of the city. Had he been just a bit quicker, the

guard would have been unable to use a weapon given

the crowds of people and cars. Id. at *5.

Later that year Wharton underwent a prison

intake assessment. The assessment found that Wharton “used a great deal of denial and rationalization.”

He “impresses as a sociopath.” The assessment concluded that Wharton “was an extremely high public

risk.” Id. at *5-*6.

Nonetheless, Wharton was indeed often polite and

cooperative as he served his time. But he wasn’t done

trying to abscond. Three years after the City Hall

escape, Wharton was caught with pieces of wire

antenna hidden behind the toilet in his single cell –

and fashioned into a handcuff key. He claimed

someone else must have left it there. But just four

days later, he was caught with more antenna wire,

hidden in the binding of his own legal materials.

These disciplinary violations for implements of escape

were classified as the most serious short of murder or

13

rape, and were upheld through an extensive appeals

process. But Wharton never admitted any responsibility. He continued, as in his initial assessment, to

deny and rationalize. Id. at *6-*7, *15.

Wharton presented experts who insisted that this

record was overall a “positive” one, despite the

recurrent escape efforts. One of the experts refused

even to consider the City Hall escape in relation to

Wharton’s prison behavior, because he wasn’t escaping directly from state prison. Experts presented by

the Attorney General included Dr. Jeffrey Beard, a

career corrections official who served as Secretary of

the Pennsylvania Department of Corrections, and

later as Secretary of the California Department of

Corrections. Beard stressed that Wharton’s “politeness,” while secretly planning escapes, threw into

question all the positive reports, and was typical of

inmates waiting for staff to let their guard down. Id.

at *9-*11, *15.

Having observed the witnesses, the district court

found that OAG’s evidence was persuasive and its

experts more credible. The court concluded that the

full story of Wharton’s prison behavior would actually

have hurt more than helped. Indeed, it would have

utterly discredited counsel’s central promise to the

jury: that with a life sentence, Wharton “is never

coming out of jail.” Id. at *14-*15. As a result, Wharton

did not meet his burden to prove Strickland prejudice.5

5 Strickland v. Washington, 466 U.S. 668 (1984).

14

Separately, the court also heard from members of

the victims’ family. As it turned out, only one had been

contacted by the district attorney’s office, a brother of

Bradley Hart. He had been led to believe the concession was a done deal, and that the family would

have no say. Id. at *19-*20.

Then there was the baby, who was no longer a

baby. Lisa Hart-Newman, now a grown woman with

her own family, would logically have been the first and

foremost family member contacted, but never was. As

she told the court, Wharton left her alone in the house

“in hopes that I would die. I am the sole survivor of

this tragedy and I am alive despite his efforts.” Id. at

*19.

The court held a separate hearing to consider the

D.A.’s office’s lack of candor concerning Wharton’s

record and the family contact. The court concluded

that Fed. R. Civ. P. 11 had been violated, but imposed

only two mild “sanctions”: that the office apologize to

the family, and that it provide a “full, balanced explanation” for any future concessions. Wharton v.

Superintendent Graterford SCI, 95 F.4th 140, 146 (3rd

Cir. 2024).

Despite that leniency, the district attorney’s office

engaged outside counsel and appealed. The circuit

court affirmed. “In our adversarial system,” held the

court, “within the bounds of good faith, parties may

choose what positions to advocate.... But in advocating

them, they must not distort or misrepresent the facts.”

Id. at 150.

15

Wharton also appealed, from the denial of habeas

relief. Again the circuit court affirmed, in a separate

opinion. After a detailed review of the record, the court

concluded that “there is not a reasonable probability

one of the jurors” would have voted differently, if only

they had known that Wharton was purportedly

adjusting positively to prison, while at the same time

surreptitiously scheming to escape it. Wharton v. Superintendent SCI Graterford, 95 F.4th 113, 127 (3rd Cir.

2024).

Wharton then filed this certiorari petition, raising

not only his mitigation ineffectiveness claim but also

the Bruton harmless error claim disposed of in his

2018 appeal. 6 Both claims are glossed as important

legal issues but amount only to Wharton’s displeasure

that the lower courts did not value particular facts as

he would have desired. The petition should be denied.

6 It

is at best unclear whether the Bruton claim is properly

presented in the current petition. Certificate of appealability on

the Bruton issue was granted by the district court in 2012 and

was resolved by the circuit’s 2018 judgment. Wharton had the

opportunity to pursue further review on that question then, but

elected not to raise it in his 2018 cert petition. After that petition

was denied, subsequent proceedings in the district court were

governed by the terms of the 2018 remand order, which restricted

the mandate to the penalty phase ineffectiveness claim. When

the district court denied that claim in 2022, Wharton filed a new

appeal under a new docket number. The Bruton issue played no

part in that appeal. See, e.g., 28 U.S.C. § 1254 (limiting certiorari

jurisdiction to the scope of a “case in the court of appeals”); U.S.

Sup. Ct. R. 13.3 (“The time to file a petition for a writ of certiorari

runs from the date of entry of the judgment or order sought to be

reviewed”). Amicus notes the issue here in the event that it is not

raised in the respondent’s filing.

16

Summary of Argument

Wharton has been appealing his conviction for the

last four decades. Now he says he has two compelling,

unsettled issues of law that require resolution by the

highest court. In fact he just wants error-correction.

But there was no error, and there is no legal question

worthy of review.

First, Wharton says the Court’s guidance is needed

on ineffective assistance of counsel claims involving

the weighing of positive against negative capital

mitigation evidence. That is well-paved ground,

however, and the courts below had no difficulty

properly applying this Court’s existing precedents.

Wharton says his lawyer should have told the

sentencing jury about his “positive” prison behavior

during a six-year period preceding his penalty retrial.

The “positive” was that he was generally “polite” and

participated in various prison activities.

The negative, as the district court learned only

after a lengthy evidentiary hearing, was that, when he

wasn’t busy with poetry projects and chess, he was

busy making plans to escape. When authorities first

tried to arrest him – for murdering a young couple and

leaving their baby to die – Wharton fled and had to be

chased down and tackled. Two years after that, he fled

again, after smuggling a handcuff key into a courtroom, releasing himself, and assaulting a guard. He

was stopped only when a sheriff shot him in the leg as

he fled City Hall in the middle of downtown

Philadelphia. Three years after that, he was caught

17

with a sophisticated homemade handcuff key in his

cell. Four days after that, he was again caught with

wire for a handcuff key, hidden in his legal materials.

Counsel’s whole argument for a life sentence was

that, despite Wharton’s callous crimes, he could be

securely incarcerated. The last thing the jury needed

to hear was that he was an escape artist.

Second, Wharton says the Court must clarify the

prosecution’s burden of proving harmlessness under

Brecht. As this Court has already held, however, there

is no burden of proof under Brecht. Wharton’s codefendant’s confession was redacted to refer to him as

“the other guy.” The state court, pre-Gray,7 chose to

resolve the claim on harmless error grounds, and the

federal courts properly applied the Brecht standard.

Wharton challenges that ruling by trying to

trivialize the evidence of his guilt, even going so far as

to suggest that the victims were responsible for their

own murders. But the facts cannot be contorted to his

liking. Claiming that Mr. Hart owed him $900,

Wharton told others he would “get” him, repeatedly

broke into the family home, left a series of sadistic

threats before ultimately strangling and drowning the

victims, admitted his involvement to a friend, gave a

detailed confession of his own to police, and when

arrested was in possession of a check, for $900, written by Mr. Hart the night he was killed. The alleged

Bruton error was indeed harmless, beyond any grave

doubt.

7 Gray v. Maryland, 523 U.S. 185 (1998).

18

Argument

The petition paints a thin veneer of legal novelty over a host of incomplete and inaccurate

factual assertions. The questions presented are

not cert-worthy.

I.

There is no novel “one juror” weighing issue:

Wharton simply fails to acknowledge the egregiousness of the facts contradicting his new

mitigation evidence.

Wharton portrays his argument as if it were one

of first impression in this Court: “what happens,” he

says, “when the evidence is mixed?” Petition at 10. In

other words, how can courts assess Strickland prejudice if the introduction of newly-claimed mitigation

evidence would have resulted in the introduction of

anti-mitigation evidence?

But there is nothing new about this question. The

Court has been handling it for years. See, e.g., Wong v.

Belmontes, 558 U.S. 15, 26 (2009) (courts simply weigh

“all the evidence – the good and the bad”); Cullen v.

Pinholster, 563 U.S. 170, 201 (2011) (new mitigation

evidence “would have opened the door to rebuttal”).

Wharton’s characterization of his claim as in any way

original “misses Strickland’s point.” 558 U.S. at 26.

The weighing of mitigation and anti-mitigation

evidence is a straightforward application of the

Strickland Court’s now 40-year-old prejudice test.

19

Nor does the supposed “one-juror standard” add

any novelty. The Court has spoken of “one juror” in the

Strickland prejudice context simply because a

criminal verdict generally requires unanimity and a

single juror, obviously, can prevent it. But, as this

Court has long made clear, indeed since Strickland

itself, the “one juror” in question is not one who just

may happen to be inclined in favor of the defense

evidence. “The assessment of prejudice [does] not

depend on the idiosyncrasies of the particular

decisionmaker, such as unusual propensities toward

harshness or leniency.” 466 U.S. at 695. Rather, the

inquiry assumes that all jurors, i.e., juries as a whole,

are reasonable.

Nothing in the lower courts’ analysis suggests

that they failed to grasp this standard. Wharton just

doesn’t like the result they reached. But his challenges

to that result aren’t just fact-tied; they are factually

wrong.

He claims, for example, that he never engaged in

any “assaultive” behavior while in custody. But that is

exactly what he did when he escaped in City Hall: he

assaulted his guard. That is how he got the head start

that nearly set him loose.

He claims there was no evidence he used a

handcuff key to effectuate that escape. But in fact the

Attorney General introduced exhibits, cited by the

district court, 2022 WL 1488038 at *5, that showed

that’s exactly what he did.

20

He claims that his subsequent prison misconducts

were merely for “contraband,” as if he’d been caught

with a cigarette or two. In fact they were for

“implements of escape” – an offense classified almost

as seriously as prison murder. And when his toilet

tank proved to be an inadequate hiding place, he took

the trouble to conceal more such implements in the

binding of his legal materials. They did not get there

by accident.

He claims that these implements were nothing

more than wire, that no one “tested” them. But in fact

a corrections officer testified that Wharton’s handmade key was the first he’d ever seen, in 28 years on

the job, that could actually have worked. 2022 WL

1488038 at *6.

Here, as in Wong, Wharton’s proposed mitigation

might have helped him only “if one ignores the

elephant in the courtroom,” 558 U.S. at 26. As counsel

recognized, his best argument against death was life

– that a life sentence would leave this vicious double

murderer safely contained behind bars. By opening

the door to all the escape evidence, counsel would have

done worse than just jeopardize his case: he would

have made himself out to be a liar. And we can safely

bet that Wharton’s current counsel would be here

attacking him now for doing so.

There was no error, let alone any cert-worthy

error.

21

II. There is no novel Brecht issue: Wharton simply

fails to acknowledge the extent of the overwhelming evidence of his guilt.

Wharton contends that the court of appeals

misapprehended the Brecht harmless error standard8

by failing to place the burden of proof on the

prosecution. But as this Court has held, there is no

such burden under Brecht. The reviewing court must

simply determine for itself whether there is “grave

doubt” that the alleged error is harmless. O’Neal v.

McAninch, 513 U.S. 432, 436-37 (1995) (court must

decide harmlessness question “without benefit of such

aids as presumptions or allocated burdens of proof”).

As above, the court of appeals applied the correct

standard, with great care. 722 Fed. Appx. at 276-78.

Wharton just doesn’t like the result. He claims the

alleged Bruton violation of admitting co-defendant

Mason’s statement harmed him, because it undermined his contention that his own confession was

beaten out of him. He claims that, other than his

confession, there was practically no other evidence of

his guilt.

But the reason the jury didn’t buy Wharton’s

confession claim wasn’t because of Mason. It was

because the evidence of involuntariness was so flimsy,

and because the confession was convincingly corroborated by other evidence, and because, even

without the confession, the evidence against Wharton

8 Brecht v. Abrahamson, 507 U.S. 619 (1993).

22

left no real doubt, let alone a grave doubt, that he was

a murderer.

As Wharton’s lawyer admitted, the only reason he

even raised the voluntariness claim with the jury was

because “there was really no other defense.” 2012 WL

3535866 at *18. Other than Wharton’s own assertions,

the only arguable evidence that he was beaten into

confessing was a small bruise on the back of his head.

The arresting officer explained, however, that

(consistent with his subsequent escape history)

Wharton tried to flee when police came to apprehend

him. The officer had to tackle Wharton to bring him

into custody. Afterward he noticed a “slight abrasion”

on Wharton’s head. Id. at *17. That was all before

Wharton got to the station for interrogation.

In addition to the officer’s trial testimony, the

district court conducted its own thorough hearing on

the issue, heard from every relevant witness,

examined photos taken of Wharton promptly after his

confession, and reviewed the prison medical intake

form, prepared shortly thereafter, which revealed that

Wharton had no indication of injury or bleeding. Id. at

*17-*31.

In any case, Wharton’s confession essentially

established its own credibility. He was able to describe

the crime scene in accurate detail, in a way that no

one could have done who had not been there. Nor could

police have put all these words in his mouth, because

Wharton told them things they didn’t know yet. He

identified Mason, for example, as the one who had

killed Bradley in the basement – before police had

23

matched Mason’s sneaker to the footprint on Bradley’s

back.

But there was ample evidence linking the

murders to Wharton even aside from his confession –

starting with his months-long crusade against the

victims. Those crimes were established by the

testimony of Larue Owens and Thomas Nixon, who

participated in them. And Wharton himself had

admitted them, in an entirely separate confession

given months after the first one – a confession whose

voluntariness Wharton has never challenged.

Wharton dismisses all this evidence as mere “ill

will between Mr. Wharton and the Harts” – as if the

victims were equally responsible for the “ill will.” He

claims that this “ill will” evidence “comes nowhere

close” to indicating his part in the murders. Nowhere

close? Wharton made repeated threats that he was

going to “get” Bradley if he didn’t pay up. He slashed

the baby’s mattress with a knife. He hanged her doll

with a rope. He stabbed Bradley’s photo onto a church

wall. He sent Nixon to the house with a gun. As the

district court recognized, Wharton was “the driving

force behind the murders.” Id. at *50.

That conclusion was confirmed by Wharton’s own

admission after the crime, to his friend Nixon.

Wharton dismisses this evidence as “ambiguous,”

because at first he tried to deny his involvement. But

there is no mistaking his next words, when asked why

he didn’t just kill the baby outright: “we couldn’t do

it.” There is no scenario in which that statement is

“ambiguous.”

24

And finally, there are the stolen goods, taken from

the Harts’ home the night of their murder, that

somehow wound up at Wharton’s house. Most

damning among these is one particular item: the

check. That check was Bradley Hart’s last act, on the

last night of his life, written out to the same man who

just happened to have been terrorizing the family for

half a year. Not even Wharton can dismiss that.

This was not a close case. There was no grave

doubt, let alone any cert-worthy error.

25

Conclusion

For these reasons, the Pennsylvania Office of

Attorney General suggests that the petition for writ of

certiorari be denied.

Respectfully submitted,

DAVID W. SUNDAY

RONALD EISENBERG

Attorney General

Pennsylvania

Chief Deputy Attorney General

Appeals Section

(Counsel of Record)

JAMES A. DONAHUE, III

First Deputy

Attorney General

KIRSTEN E. HEINE

Executive Deputy

Attorney General

Criminal Law Division

CARI L. MAHLER

Senior Dep. Attorney General

1600 Arch Street

Philadelphia, PA 19103

(267) 940-6676

reisenberg@attorneygeneral.gov