Philadelphia District Attorney Larry Krasner said Wednesday that the federal judge who accused him of potentially breaking the law while overseeing a post-conviction case had reached “baseless,” illogical, and legally unsupported conclusions — and that the judge should be removed from the case because he had acted more like “an advocate against DA Krasner” than an impartial arbiter.
In a series of documents filed in federal court overnight, Krasner took the unusual step of openly criticizing U.S. District Judge Paul S. Diamond — sometimes using strikingly pointed language.
In one brief, signed by Krasner and a subordinate, the district attorney said Diamond’s suggestion that Krasner might be guilty of criminal conspiracy relied on allegations “more closely resembling fever-dream conspiracy theories than evidence.”
Other suggestions of criminality by Diamond — which revolved around actions Krasner took while overseeing the case and his staff — were equally wrong, Krasner wrote.
“When it comes to all of these nominally-serious-but-actually-wafty accusations of criminal conduct, tempered by ‘coulds’ and ‘mights’ and ‘may haves,’ [Diamond’s] analysis rests on nothing of substance,” he wrote.
Then, in a separate nine-page letter signed only by Krasner, the city’s top prosecutor said Diamond’s “factual findings and accusatory legal conclusions twist the truth to the point of breaking in ways that defy logic and employ Orwellian language.”
And if Diamond’s assertions had been made in a setting other than a court case, Krasner said, “these accusations could be litigated as civil claims of defamation, slander, or libel.”
Finally, in a third document, Krasner and Assistant District Attorney Thomas Gaeta wrote that Diamond’s actions had been so out of line that he should no longer oversee the case. At one point, they said the proceedings had become a “circus,” with Diamond the “ringmaster.”
And they said Diamond — who was appointed by President George W. Bush, a Republican — had displayed his biases against Krasner, a Democrat, in a number of ways, including by asking improper questions of witnesses, reaching inconsistent conclusions about which witnesses were credible, and improperly blaming and discrediting Krasner for not testifying — even though Diamond had never asked him to.
Diamond’s conduct, they wrote, “provides a clear and obvious view into the type of unfair and improper proceedings and decisions [Diamond] deigned to make.”
The filings served as the latest chapter in a saga that has been marked by a series of explosive developments about Krasner’s office in recent months. The episode has also raised legal and political questions about Krasner’s future.
Most recently, in mid-September, Diamond filed a stunning memorandum in which he said Krasner and one of his top supervisors, Matthew Stiegler, may have committed crimes including conspiracy, obstruction of justice, or perjury while participating in the underlying case. Diamond also said he had referred the matter to the U.S. Attorney’s Office for potential investigation. Federal prosecutors have declined to comment.
Krasner has consistently disputed the notion that his actions were improper and appealed Diamond’s ruling, which also disqualified him and Stiegler from participating in the case moving forward.
The underlying matter is centered on Dennis Johnson’s attempts to have his 2009 murder conviction overturned; Krasner’s office had once supported that effort, but reversed course earlier this year after some of his staff discovered that a previous prosecutor had made mistakes in her handling of the appeal.
Wednesday’s filings served as Krasner’s most extensive response yet to accusations that he had committed misconduct while his staff tried to rectify those errors in court.
In Krasner’s view, the fact that his office was seeking to correct its own mistakes in open court was just one example of how Diamond’s conclusions — including that Krasner may have conspired to concoct a false cover story about the episode — “cannot logically be reconciled with each other.”
“I know many of the facts found by [Diamond] and conclusions inferred by [Diamond] are not correct from personal knowledge,” Krasner wrote. “I lived it.”
Dispute over ‘false narrative”
The roots of the controversy date to 2022, when then-Assistant District Attorney Jaclyn Mason filed a brief supporting Johnson’s bid to have his conviction overturned.
Krasner was unaware of the case at that time, he said in his new filings. But he became involved this spring, when some of Mason’s supervisors in the law division concluded that she had made significant errors in her brief, and that they needed to try to withdraw it.
Krasner approved a document alerting Diamond to the mistakes and apologizing for Mason’s errors.
Mason, meanwhile, resigned and said Stiegler — her former boss — was most at fault.
Diamond, in his Sept. 15 memorandum, said that in the aftermath of Mason’s resignation, staff in Krasner’s office discussed how the errors occurred. And in those discussions, he said, Krasner and Stiegler worked to create a “false narrative” to blame Mason, including by considering a Stiegler proposal: to review all of Mason’s old cases and find additional errors they could use to cast Mason as a “rogue” prosecutor.
Diamond said such an effort could amount to criminal conspiracy.
But Krasner, in his filings, called that conclusion “baseless,” saying Stiegler’s proposal was to review Mason’s old cases to see if there were additional errors — not to manufacture problems they could improperly attribute to her.
“Nothing in the record supports the Court’s determination that providing a broader account of their competence would have advanced a ‘false narrative,’” Krasner wrote. “They either had or had not made errors in other cases, and there was absolutely no testimony indicating that DA Krasner (or Stiegler, for that matter) suggested submitting false allegations of error.”
In addition, he said, Stiegler’s proposal was never actually pursued once other law division supervisors voiced opposition to it — further diluting any notion that Krasner was seeking to force his staff into lying to Diamond.
“Stiegler proposed a strategy that DA Krasner considered, but DA Krasner also considered and accepted the Law Division supervisors’ advice that it was inadvisable,” Krasner wrote. “This is not misconduct.”
‘Reasonable’ consequences?
Diamond, in his Sept. 15 memorandum, also took issue with Krasner threatening “consequences” for prosecutors who told the judge about another issue roiling the district attorney’s office: whether to refer Johnson’s case to the state attorney general’s office.
The law division supervisors handling the case after Mason’s resignation — Katherine Ernst, Steven Wildberger, David Napiorski, and Peter Andrews — generally agreed that was the appropriate course of action because of the inner-office drama consuming the matter. And they repeatedly urged Krasner to refer the case to avoid what they viewed as a conflict of interest.
But Krasner disagreed. And in his filings, he said that as the referral discussions took place over several weeks, he had consulted with several ethics experts who generally agreed there was no conflict necessitating a referral.
As for the threat of consequences, he said, he was not seeking to prevent his staff from telling Diamond the truth about their deliberations — which the judge later said could amount to obstruction of justice. Instead, Krasner said, he was seeking to prevent them from submitting court documents without his approval.
“That is particularly so where, as here, those pleadings are premature, legally incorrect, and unnecessary,” Krasner wrote. “It is reasonable to expect consequences for filing a pleading the District Attorney disapproves of while he is still examining the issue and determining the correct course of action.”
Seeking the judge’s recusal
In addition to disputing Diamond’s conclusions about his actions — and whether they constituted crimes — Krasner went on to say the judge should no longer oversee the case, which remains pending.
He said Diamond’s “apparent bias is evident from a number of remarkable circumstances,” all of which should lead to his removal, according to the district attorney.
One example, Krasner said, was that as Diamond questioned witnesses in his courtroom this summer about what happened in the case — including asking questions of lawyers who still work in Krasner’s office — the judge “departed from [his] role as a neutral arbiter and undertook an active inquisitorial and advocacy role.”
“The Court’s questions and assertions reflected the Court’s apparently preconceived view that the DAO’s conduct in all cases is inherently suspect,” Krasner wrote.
Diamond also made “selective credibility determinations” about which witnesses he believed and which ones he discredited, the DA wrote. And he took particular issue with what he cast as Diamond’s reluctance to criticize Mason: Krasner, in his filing, said there were “many additional reasons to question the honesty of Mason’s testimony, all of which were ignored by the Court.”
Then there was the issue of Krasner’s failing to testify.
Diamond, in his memorandum, blamed Krasner for not taking the stand. But Krasner, in his filing, said Diamond — who scheduled the hearings and set the witness list — “appears to have taken pains to avoid having DA Krasner testify.”
In any case, he said, it was improper for Diamond to assume that Krasner’s lack of testimony was somehow “concession by silence.”
Overall, Krasner said in his motion, the judge “served as a prosecutor for DA Krasner and his office,” thereby requiring his recusal from the matter.
In his nine-page letter, Krasner went even further, saying he believes Diamond should be recused “from this matter and every other matter involving the Philadelphia District Attorney’s Office for the foreseeable future.”
It was not immediately clear how Diamond might respond to such a request. On Wednesday, he said any additional paperwork on that issue must be filed within a week.
