May 10–17, 2001
Interview with Lynne Abraham
The following is a Q&A session between District Attorney Lynne Abraham and City Paper staffers in the newspaper’s offices on April 30. Attending from City Paper were Howard Altman, Paul Curci, Daryl Gale, Gwen Shaffer and David Warner. The district attorney was accompanied by her media spokesperson Vincent Thompson.
CP: So how goes the campaign so far?
LA: I think well.
CP: I know you campaign hard and you campaign well, but how seriously do you take Alex?
LA: Anytime you don’t take your challenger seriously you’re a fool. I take any and every challenger very seriously, whether it’s in a primary or a general, it makes no difference.
CP: What kind of numbers do you see?
LA: I don’t know anything about politics, so I don’t know anything about numbers or any of that other stuff. I’m totally unused to it — I don’t pay attention to politics so I can’t tell you those numbers.
CP: What did you think of the debate then?
LA: I thought it was interesting.
CP: Do you think anything new came out of it?
LA: No, well, a couple of things, but nothing much.
CP: Speaking of numbers — and one of the things that this campaign gets down to is obviously the death penalty — of the 74 death row citizens that you committed 62 are black, and is that 84 percent of the capital crime [convictions]…
LA: I don’t know, whatever the figure is you do the math. Remember that there’s 131 from Philadelphia, but they pre-dated my term, so I don’t think it’s fair to look at… you have to look at statewide as well as citywide. Although, citywide we have the highest crime rate of any other municipality in the state. Now, our population has a huge percentage of the state prison population, and we have a lot of crime, a tremendous amount of murder.
CP: When you’re trying to decide as an attorney to recommend the death penalty, what is it you’re looking for?
LA: We don’t recommend the death penalty, we seek the death penalty. We ask the jury to impose the death penalty.
CP: But you ask that. Do you have a criteria, any guidelines?
LA: Here’s a chart of how many charged over the past 11 years, from 1989 to 2000. And here’s a percentage of gunshot victims. Tremendous amount of gunshot victims. Look at the numbers, 484, 504, I mean, it’s astounding. Aren’t you shocked, don’t you just think that’s crazy? It gets me.
CP: Shocked at the number of gunshot victims, or murders?
LA: No, murders. Both you ought to be shocked at both.
We should be proud it’s only like the third month, but it seems to be slowing down. We’d like to think that several things impact. First of all, sometimes, nobody knows when crime goes up or goes down, you can say, well it’s good economic times, well, we had good economic times last year, and homicide went up from the year before. We don’t know why homicide rates go up and down, but we know that homicide profiles, victims or defendants, can be categorized up usually as gunshots, usually semi-automatic pistols, many crimes, though certainly not all are drug-related, sometimes there’s either money, drugs or alcohol or some kind of relationship that plays a role in most of our homicides. But we like to think that some of our initiatives make some of the crimes go down. If you said to me, well this does that? Who knows, nobody knows.
CP: What were some of the initiatives [that may have contributed to lower crime rates]?
LA: One of the initiatives that we’re doing is the Operation Cease Fire. If you get caught with possession of a gun, if you’re using your gun to advance or implement in your drug dealing, depending on the type of court, you have a long term. While you’re in jail you can’t kill my sister or my little kid out in the street.
CP: Do you have any numbers — the number of people that have been taken off of the street by Operation Cease Fire?
LA: Here’s the deal, depending on the year, there were roughly 6,000 to 8,000 guns taken off the street, sometimes as many as 220 in a week. It’s astounding — you ought to go to the evidence room, you’d just be dumbstruck at the sheer volume of guns we have in the city. And if you’re in custody and you get caught with a gun you’re going to get sent to jail for a long time if your case goes to federal court. We don’t fare nearly as well in the local courts. Thereby hangs the tale. I think if our local judges would be as tough as our federal judges our crime rate would plummet.
CP: Why do you think that?
LA: I don’t know why. If I knew why the local judges do some of the things they do I’d be given the Nobel Peace Prize.
CP: Do you think that part of the reason judges don’t give longer sentences is because of over-crowding?
LA: That’s not their concern. That’s for the prison to worry about, not the judge. You give the sentence that the crime deserves. Be it probation, or jail, or freedom.
CP: What are some of your specific complaints about local judges?
LA: Without being too specific, they don’t work long enough and hard enough, some of them. Many of them are great, they come in early, work a long day. Some of them are not very industrious, some of them are not very studious, and give out lenient sentences. We’ve gone around the city and heard people say, Hey, a guy went in and did something, and got let out of jail with a slap on the wrist.’ It gets people very angry, and they decide they don’t think it’s worth it to live in the city.
CP: Speaking of judges, when we asked Mr. Talmadge about experience and his relative lack thereof, he said, Well, Lynne Abraham came in on the same terms I did really, I [a city commissioner, with a staff], she came in as a judge [with no staff].’ How do you respond to that?
LA: How many staffers did he say he has?
CP: I believe he said five.
LA: He has himself and five staffers. That’s hardly a staff. I ran the Redevelopment Authority, I had 500 employees, I had a $100 million dollar budget. I also had experience as a jurist, and that does count for something. I was literally running a list of hundreds, if not thousands of lawyers and cases over the course of over 15 years. You’re almost a ringmaster, you get so many cases throughout the day, and you’re shuffling and moving and scheduling, and you have to be administrative. You’re really a mini-administrator for a lot of cases. As a prosecutor I worked in the prosecutor’s office, that counts for experience. And as a drug prosecutor I not only knew how to run a large organization, but as a jurist you have tons of experience in the administration of justice, you’re not only an administrator of justice but you’re also a leader. So, he has no experience, and if I understand his own admissions on television, he was prosecuting law most of the time he was supposed to be the commissioner. So therefore, he has no experience. What he has said in the past to me is, The mayor wasn’t a mayor before he was a mayor.’ No, the mayor was a city councilman, he was the City Council president for many years, and he was the partner of the mayor in the running of the city. Besides this, I’m not coming into this office now, I’m here, I’ve been here two years, and he’s coming in today.
CP: Tell me what he’s coming up against, coming into it without experience?
LA: I don’t know. I don’t want to talk about him, I came here to talk about me.
CP: Can you tell me what you think on the whole is misunderstood about you or misrepresented in the minority community?
LA: Here’s what I think. This is a criminal justice system, where almost anything is subject to interpretation. When you really sit down and analyze decisions that I’ve made on the basis of facts, not on the basis of what someone else says, the cases that I have decided upon which are the subject of some of the discussion, the issues have never really been discussed at all, to any great extent, it’s just a vague perception. While you may not agree with a particular decision I’ve made, I believe that with everything I knew at the time I made a manifestly correct decision. Every day, you get up to bat, and you have to make difficult decisions that practically please nobody. That’s what a prosecutor does, you make difficult decisions. Depending on the year and the crime rate, there are 50,000 to 60,000 cases a year, and well, you’re bound to make a mistake somewhere along the way. I think every case we decide on the basis of what we know and we try to make the right decision. We don’t always succeed, but we really, really try. When we don’t make the right decisions — I’ve gone into court myself and asked judges to throw cases out. I’ve for years gone into court and asked to have cases thrown out. But if we think they’re right, boy you’re going to have to fight with us because we don’t see it the way you see it. He knows that the office is run right and well, not without error, but that we’re an honest, fair, hardworking, decent shop of lawyers who really try to do the right thing.
CP: There’s the example of William Nieves, he spent six years on death row and was finally exonerated….
LA: He wasn’t exonerated, he was found not guilty.
CP: That was part of Mr. Talmadge’s problem with that event. His idea is that your office, even when faced with overwhelming evidence of innocence, was reluctant to lift the charges…
LA: Not our office — no, we wouldn’t do it. [Assistant District District Attorney Homicide Unit] Roger King tried the case, and Roger is a tough prosecutor. He’ll fight you tooth and nail, but if he thinks he has the wrong guy he’s not going to try the case, he was convinced that he had the right guy. And here’s what the appellate court said, in spite of my opponent’s statements to the contrary — you know what [reaches into a box of files she brought with her] I thought I brought it with me, and I guess I don’t have it, but I’ll send it to you. But the opinion, which was appealed by Jack McMahon who represented him in trial, had in it one allegation of error that they dealt with, and I think 10 or 11 other allegations of error, every one of which was ineffective assistance of counsel. In other words, Mr. Nieves’ lawyer was a lousy lawyer, made mistakes, whatever. Not one allegation which he says, Oh we had evidence.’ The two names which came up during trial, one of which he had all along, other one was somebody who had never been interviewed because we couldn’t find him, and when I say we I mean the police. We didn’t interview him until he was located in prison, and as soon as we interviewed him we gave the statement to the defense attorney, as required to and as we do. The fact that the jury sometimes looks at a case on the second go around and finds a different result than the first time, that’s our system, that’s okay with us. But he wasn’t exonerated because the jury isn’t asked to exonerate somebody, they never say innocent. On television and in newspapers they like to say, The jury found X innocent.’ Sometimes they need to find a person innocent but that’s not what the law requires. What the law requires is to establish guilt beyond a reasonable doubt. Not absolute guilt to the exclusion of every other thing, but guilt beyond a reasonable doubt — pretty high standards. When a person is acquitted the jury doesn’t say innocent, they say not guilty. It may be, Sounds like the guy, could be the guy,’ or it may be Absolutely, positively, not the right guy,’ or maybe he was the right guy and the police were rotten and they beat him up or they tricked him or they did something inappropriate. It’s very difficult to find out in the hearts of people, why.’ If Roger King thought that he was not the right guy he wouldn’t go to trial with that case, I’m telling you he wouldn’t, and neither would anyone from my office.
CP: When does that happen, I know it’s hard to pull a number out, but…?
LA: It’s very hard to tell, it’s very hard to tell because the system is an odd one in that you have evidence, you put it on, and you may listen to it and say guilty and someone else may listen to it and say not guilty, who knows. Let’s say you’re a judge, the two of you guys are judges, you’re sitting in courtroom A, you’re sitting in courtroom B. You may come to the jury system with a whole background of one thing, and he comes to the jury system with a totally different background — you’re two strangers. I’m not talking about race and gender, although race may play a role in your psyche — what experience have you had, how have people treated you? And something in the evidence may strike a chord with you, but not her, and not me. So who knows how a judge will listen to a case, and that’s the beauty of the system. And it’s also the frustration of the system. But what we really believe is — we look at a case and the case has sufficient, credible evidence to bring the case to court and to prove our case beyond a reasonable doubt, not knowing whatever the defense is going to prove because they don’t have any obligation to tell us. If they put up their case, and their case sounds better than ours, even though the person is guilty, the jury has the right to say not guilty, that’s how our system works.
CP: How often do you decide not to take a capital case if you feel that there’s not enough evidence?
LA: Most times, the law is really specific on what cases we can seek the death penalty for. Out of roughly 4,000 bodies found since I came to this office we’ve received the death penalty 74 times. It’s not a great number, it’s not like, Oh my God, out of 4,000 deaths she received the death penalty 2,000 times.’ Our juries are really the conscience of the community. So, how come Stephanie Coleman-Epps, who was Joe Coleman’s daughter, who was murdered [in September, 1997] in front of her children, how come her deranged husband, lover or whatever got the death penalty? When another case equally grievous, although every case is different, but another jury might say, for us it doesn’t work.’ That’s because the conscience of the community works differently, and the law admits of the fact that we are not monolithic, and different juries view cases differently.
CP: You said that reporters in Philadelphia are always trying to get statistics from the district attorney’s office….
LA: We have no statistics except for murder cases — we don’t keep statistics. If you go back in City Council records, any year you want, look at the records. Some councilman or other always asks us, What are the statistics for drunk driving, aggravated assault,’ we don’t have that capacity, we don’t. The court keeps those statistics, and we don’t even necessarily deal with the court statistics. The only thing we know of is this — how many deaths occur, there are too many, but it’s not like you’re asking us to track 60,000 pages. I’m not driven by statistics, you are, I’m only driven by, Are we doing a good job, are we giving justice to each individual case?’ I remember when I was a young assistant DA, our inspector was always trotting out those statistics — she was always having have a press conference, saying this many of this, that many of that, and I thought it was not the right way to go. I wasn’t interested in how many wins or losses — every day, every DA was required to say how many wins, how many losses, how many continuances, why did you win this case, why did you lose that case — I have never done that, I don’t think that’s the right way to go. So, you can ask me for statistics for anything you want and I’ll tell you we don’t keep that, because that’s not the way I believe the office should be run. That’s not the way I think a justice system should be run, so if you want to do wins and losses, here’s the answer, we win most of the cases, that is the truth. And we win most of the cases on appeals, too. Do I think the system is great? I think it’s as great as it can be right now, but it can certainly be greater. We try to make it greater.
CP: How may a guilty verdict be a failure for a prosecutor?
LA: A guilty verdict may be failure for a prosecutor because the person may be guilty of a greater offense than the judge or the jury found them guilty of. In other words, the judge unofficially lowered — if I came up and I shot you in the face and you were seriously injured and the judge looked at my case and said, I really don’t like that mandatory sentencing act of Pennsylvania, I’m not going to find this person guilty of F1 agg-assault, I’m going to find them guilty of F2 agg-assault.’ So, I’m convicted of F2 aggravated assault, when I really intended to kill you and it should be attempted murder, or I really intended to do you bodily harm, which I did, and the judge just finds me guilty of F2 agg-assault because he doesn’t like the idea that I could be subject to a mandatory minimum. It’s only the mandatory minimum, that’s a stone loser for us, because the judge didn’t do what he or she swore to do, which is to follow and apply the law. You can understand why juries don’t do it because they’re not learned in the law. That’s a loser for us because we didn’t get justice for you, and you wouldn’t go away happy, you’d say, My eye is blown out, my jaw is ripped off, I can only eat through a straw, how come the judge only found this guy guilty of a misdemeanor, of an F2 instead of an F1, that’s a loser for us, that’s not justice.’
CP: How do you measure a success? You don’t keep score…
LA: Here’s what happens — you and I could be drug dealers, you rob him or her, you’re locked up, you’re a defendant. The next day we have a falling-out over drug business and I kill you. You’re a defendant against her, you’re a victim to us, and then today’s victim is tomorrow’s defendant. If you look at some of my cases, it’s like the [reputed mafia boss Joey] Merlino case [currently the subject of a federal racketeering case now underway], if you’re trying to break down an organization there’s only two ways to go — you can either divide them up, or work from the top down, like in the Merlino case. Usually the people you’re dealing with are not wonderful people. Now you can write all the bad things you want about snitches — you rely on snitches everyday, you call them informants or resources, but they’re snitches.
CP: So how do you measure success?
LA: I’ll tell you what I tell my DAs, You do justice, not just get convictions, don’t hide anything from the defense, don’t argue with the judges, don’t say anything inappropriate, be a professional prosecutor and do justice.’ You ask any DA in the office and they can tell you that. That’s not just today but everyday since I’ve been here — if you have a doubt about the credibility of a police officer, don’t put them on!’ With every case, if you think you have a lying cop, or a lying witness do not put them on the witness stand, don’t do it. We’ll win a large number of cases but we’re going to do it right. That’s the measure of success.
CP: When your office threw out the cases involving the [Bureau of Narcotics Investigations officers, whose cases were refused by the US Attorney’s office as well as the Philadelphia District Attorney’s office, resulting in more than 100 convictions being overturned. Prosecutors cited sloppy police work as the reason, the officers involved said the decision was the result of pressure from the federal government, which backs a Dominican Republic political party to which a number of defendants arrested belonged], was that a success?
LA: Well, I know all of you around the table would like to get some information about BNI, but I’m not going there. Let me just say this, when we walk into court and not prosecute a case there’s a good reason for it.
CP: With that many cases in that kind of situation?
LA: We’re not getting into specifics. If we walk into court and say, Judge, in the interest of justice we’re asking the court to not prosecute the case,’ then we’re asking in the interest of justice.
CP: Let’s talk for a moment about City Council. One of Alex’s big plans is to get more money out of City Council for more assistant district attorneys. He says he can do it because he’s a nice guy, and he said you couldn’t do it because you’re arrogant.
LA: We have 305 lawyers, that’s a big office. Did he tell you what he needed those new lawyers for?
CP: He said for more prosecutions.
LA: For more prosecutions of what? We’re already prosecuting everything. Does he anticipate that there’s more cases we’re not prosecuting?
CP: He said that the ADAs are overworked, not that they’re not prosecuting, but that there are so many cases piled on the district attorney….
LA: We work hard, but that’s nothing new. I mean, 305 lawyers?
CP: Is that enough? You don’t need any more?
LA: Not right now.
CP: Haven’t you asked City Council in recent years for money to hire more lawyers?
LA: Yes, and we got the money to hire more ADAs, that’s how we got the 305.
CP: He also mentioned he wanted to increase the warrant unit, getting people who have bench warrants.
LA: Pardon me, that’s done by the courts. So, he wants to be the court bench warrant unit and the police bench warrant, too? That’s a different job description.
CP: He also wants to have more social preventative programs run through the DA’s office.
LA: Well, I’m running for district attorney, I don’t want to be the head of the department of public welfare. We do have planned prevention programs, but he himself has said the DA doesn’t prevent crime. Well, does that mean that because the DA doesn’t always prevent crime that we have to prevent crime?
CP: I think he wants to prevent crime on some level.
CP: About the RNC arrests — given the number of arrests and prosecutions and the small number of convictions, does that count as one of those errors that you talked about earlier?
LA: Here’s way I look at the RNC protestors — I wasn’t there and I didn’t see anything, I’m not a cop and I don’t want to be a cop. We were the first ones to say, You don’t give me your name you don’t get bail,’ because we can’t subpoena a Snowflake, we can’t subpoena a Bambi. And the system requires that if you’re going to get bail for a non-serious offense then give us your name and address. Most of them could have probably walked out with nominal bail, but if they’re not going to give us their name then they’re not going to get bail. That’s our position, and that’s still my position and I feel right on that. With regard to the prosecution, when it got to the point that we were prosecuting, when we had the evidence, what we found out was that police officers couldn’t identify half of the people they arrested. On further review of what all the evidence came to be, some of the cases lacked at that point prosecutorial merit. It was an honest call. In other words, in spite of what everybody may say or think, it doesn’t do me any good to have 300 cases in the system that were not worthy of prosecution. That doesn’t make me feel better, I have enough business, I don’t need to arrest people making puppets or marching down the street. Frankly, for the most part those people never were arrested. You know, Cheri Honkala, she led about 5,000 people down Broad Street without a permit in the blazing hot sun, they were dying out there. Give me one person who was arrested in that march. Not one, they just marched down Broad Street, went to Roosevelt Park and did their thing with no arrests. Here’s where the arrests came — people jumping on cars, throwing trashcans out in the street, blocking the street, smacking the police commissioner, having confrontations with cops. Here’s what I thought was interesting — if you look at the case and you have to review everything in the cold light of day, and you say, this is a de minimus case, then you have the right to say that it doesn’t look like very much, dismiss it. What’s wrong with that? I think it was darn brave of us to go in there — it made the police department look good. We could have forged right ahead with those cases, but I think that we did the right thing.
CP: What do you say to the police department when they unloaded onto you so many unconstitutional cases?
LA: We didn’t know they were unconstitutional.
CP: You do now.
LA: I’ll tell you what I think, the important thing you have to understand is that I wouldn’t tell "the" police department anything because I’m not their commander, but I’ll tell you what I would do. If I thought there was a significant problems that I needed to address then I would go quietly to the person in charge of whatever the issue or department is, councilperson, head of the agency or department, and say, Here’s what I think could be done better next time, assuming there is a next time.’ And assuming you could anticipate what the next time is going to bring. The one thing about protests is you can never anticipate. People can protest, just like with Bread and Roses. Now here’s an odd situation, I’m invited to go to the Bread and Roses [fundraiser], and I get there, and somebody else who’d been invited to receive an award said that I don’t have the right to be there. They asked what I was doing there, I said I was an invited guest, and they said I didn’t have the right to occupy their space. Wait a minute, You’re a guest in somebody’s house and I’m a guest in somebody’s house and you’re going to tell me I don’t have the right to be here when the host invited me in, I don’t think so.’
CP: You were talking about how when you had something you want to communicate to the police department…
LA: I didn’t say the police department, no I did not. I said when I have a problem that I think needs addressing, whether it’s a department head, an agency head, a commissioner, or anybody, I will contact that person and say, Here’s what we can do better next time, or here’s what I thought was the problem in this instance, or in that issue, how did this happen, can we avoid this the next time?’
CP: Have you had any discussions along those lines about the Brady case?
LA: I won’t tell you what discussions I’ve had, but I’ll tell you what I’ve already said publicly, which you already know, which is that we’re re-investigating the case.
CP: In the RNC case, there were five days of preliminary hearings.
LA: What happened was, as I remember, the defense attorneys asked for a line-up and the state police couldn’t identify anybody they arrested.
CP: Didn’t the prosecutor know that going into it?
LA: I’m not going to say what he knew, because I don’t know what he knew.… I will say this … he’s a darn good prosecutor.
Vince Thompson, campaign aide: I would just like to say one thing because I think it’s important. I know that Talmadge was talking about City Council, the one thing I would like to say is that just this year we gave a budget to City Council and they approved it, and last year too, and they approved more funding for hiring assistant district attorneys, new ADAs.
LA: You cannot go to City Council and get anything, you have to go to the mayor and get it, trust me. The mayor submits his budget and if the mayor doesn’t have it in his budget, you’re not going to get it, period. My opponent says he’s going to go to City Council, good luck.
CP: How does your relationship with Mayor Street compare to your relationship with Mayor Rendell?
LA: I have a wonderful relationship with both of them. Two different people, very good relationships. Don’t always agree with them, but good relationships.
CP: Is there anything your office is going to do in conjunction with the blight initiative?
LA: Yes, but as I understand it the blight initiative isn’t going to go anywhere until City Council passes the foundation for the bond issue. But we’ve worked on the blight initiative. You remember that I worked for the Department of Housing and Urban Development, I was a member of the Urban Land Institute, I taught a couple of courses at Temple, and also I’ve been doing my own blight initiative with broken-down houses with the Public Nuisance Task Force — we’ve torn down lots of vacant houses. When I worked for the mayor for his election I’d sit on the corner of Indiana and Huntington streets, where the Fairview Cemetery is. For four years or five years I used to go to the Fairview Cemetery and clean it up with a bunch people, volunteers and so on. When we took over Fairview Cemetery, that major clean-up was occasioned by the fact that we knocked two full blocks of houses across the street, that was a real blight initiative, we started that, that was our blight initiative, it was the first thing we did under Operation Genesis in 1992. So, Fairview had become a dumping ground — so we’ve been our own blight initiative to lighten that neighborhood. I don’t know how my office is going to work with the mayor’s blight initiative program. I do know this, all the houses that we’ve torn down, that’s helping to ameliorate blight.
CP: You guys seal houses, too, right?
LA: We’ve encapsulated houses — we were the first encapsulators.
CP: I’m wondering how what your office wants to do will mesh with the mayor’s plans.
LA: There’s a problem with the sealing of the house. If we sealed the house, but the court didn’t award it to us, then we can’t sell it. So, say I’m a drug dealer, you come into my house, you see the house that I’m staying in, it’s not my house it’s his house. So, his family comes in and says I didn’t authorize him to sell drugs in my house, so the court doesn’t award the District Attorney’s Office the house, it’s already been sealed. The owner, after he’s reclaimed his property decided not to do anything with it, just leaves it boarded up. He has the right to be a rotten landowner, he can be no good, and you can’t do anything about it. So, unless the city comes in and condemns his property, they can’t make him do anything.
CP: So, it’s a matter of the court’s hands being tied in a way?
LA: No, their hands aren’t tied. The court decides that when I was in the house the landowner didn’t know it, he’s an innocent owner. They decide it’s better sealed than open. Some of the neighbors in some of our neighborhoods fix up the houses, and they paint windows on the boards to make it look nicer. But I’m not the head of urban development anymore, I’m a prosecutor with a particular prosecutorial role, and I’m satisfied with that. If I wanted to be the mayor I would have run for mayor. I’m a prosecutor, that’s what I do, I prosecute cases.
CP: You said earlier that juries are the conscience of the community. Can you talk a little bit about jury selection? One of the criticisms that Alex had was that you haven’t done anything to change the perception of your office dealing with juries —
LA: He doesn’t know anything about the office. He doesn’t know anything about what I’ve done or haven’t done. The Jack McMahon case — Jack McMahon made some statements, somebody in the office remembered that they were in a class that McMahon had spoken to, wrong, bad, offensive, tape. Somebody told me to go look at the lecture tape. Whoever looked for it found it and re-watched. The minute I saw it I knew it was bad news. … I waited until [a particular] trial was over, and they were acquitted, I gave a tape to every defense attorney who had a case with Jack McMahon, every case we could find. I was duty-bound to turn the tape over, that was my job as a prosecutor. I don’t know what my opponent is complaining about, I did everything I was supposed to do. I think in my lifetime I’ve picked thousands of juries as a lawyer, and presided over thousands of juries as a judge, and I think I’m pretty astute at knowing what’s allowed and what’s not allowed, as a jurist as well as a prosecutor. In the last four and a half years there have been two other cases in which the defense attempted to use the tape. In that tape they claimed that we had coached McMahon, he testified that I coached him, I wouldn’t want to coach him he’s going to have to defend that tape. It never was the philosophy — see you started with the assumption that the tape represented the philosophy of the office, it never has and still doesn’t.
CP: The question that I have is what are your young ADAs given as guidelines for jury selection?
LA: All right, first of all, all of the assistants go through training. Among the courses we teach are jury selection, what you’re allowed to do, what you’re not allowed to do, whether it’s race, gender, sexual orientation, all about what to do and what not to do. The thing we want is a fair cross-section in the community. That doesn’t mean that every group is represented in the community. The jury pool is adversely affected by the people who try to beat jury duty. Half the jurors don’t fill out the subpoena and don’t bother showing up. So, they’re starting to have a jury truancy school. If you don’t show up, the sheriff is going to come out and get you, take you to court and say, okay Mr. Smith, why didn’t you show up? Okay, $200 fine, and you’re on jury duty. So that’s the first problem, people lying to get off of jury duty. Also, jury selection has changed because there used to be time for the lawyers to ask the jurors about really in-depth things, and now it’s just filling out a form, and who knows what you’re going to come out with if you can’t ask the jurors really cogent questions. You assume that they’re telling the truth when a lot of time they’re not. Have they committed a felony? No,’ but they have. But there’s no way to check it out. That’s part of the problem and the glory of the jury selection — you never know what you’re going to end up with.
CP: But no prosecutor would exclude someone from a jury because of race?
LA: No, and if they discriminated because of race then they would be fired. The office is a very multi-gender, multi-ethnic, multi-cultural, and to some extent inter-married office. So there’s no racial games, no ethnic games. Does that mean that I know everybody has a pure heart? No. I can’t say that but I will tell you this, we run a really tough ship when it comes to discrimination, and I think I could say that they know what I think. It comes from the top. I tell them that we don’t discriminate on the basis of any reason — in our jury selection, or any other reason.
CP: What about the use of pre-emptory challenges?
LA: Look, a lot of our cases where jury trials are demanded — where we do not agree to a waiver — are multi-cultural cases. It may be a Latino defendant, an African-American defendant, who knows, whatever they are. But we think it’s best — when I say we, I mean us, me, our office — to get a cross-section of the city and say Hey, listen, this is your neighbor, he’s supposed to have done X, you decide whether he did it or not,’ and the only way you can do that is to get a fair cross-section of the city. That doesn’t mean in a given case that it’s going to be one of this, one of that. We have to keep records now — who’s on the jury and who isn’t, who was struck and why. We have to give race-neutral reasons why a person was struck. … If we don’t give race-neutral reasons, the judge has the right to put Mrs. Smith back on the jury. Or put somebody else on the jury in her place, which is more likely because if we struck her she’s gone and that’s the end of that.
CP: And that’s a result of —
LA: Batson vs. Kentucky, and cases interpreting Batson vs. Kentucky. But we’re not doing it just because a court mandated it. That’s not why we’re doing it. We’re doing it because that’s the way it ought to be done.
CP: You’re active in the Pennsylvania District Attorneys Association. Why do you think it’s so important to work on a statewide level?
LA: Because laws affect everybody. … You give me a subject and we’ve written legislation for it. And that means, in my office, written it, written it, we write it, it’s not like we just lobby it, we write it. To me the most significant accomplishments … are several [state] constitutional amendments. One is — which unfortunately was stricken down by the Supreme Court of Pennsylvania after we got it passed — was the ability to take testimony in a closed-circuit television setting of kids who are facing their abusive and sexually molesting, usually fathers. And we’ve found that confronting little me with big you over there was horrible, very tough. They’re conflicted — you know, they love Daddy, but he put his pee-pee in my pee-pee, you know, that kind of stuff. Sometimes it’s even more, horrible, horrible abuse. And you take a little kid and put him on the witness stand, he’s got to look at Daddy. … We got two successive legislative sessions to pass the law, then we had to put it on the ballot … We did that. The Supreme Court … in my judgment, improperly struck it down [on procedural grounds]. The other one is the Commonwealth’s right to a jury trial, which we think is a major victory. It gives us the right of veto over a defendant who will judge-shop. You will only get a [non-jury] trial if we agree to it. And despite the screams and howls of defense lawyers and judges — Oh, this will clog up the courts, this will be awful!’ — that hasn’t happened, has it? That was passed in 1998. And the other big, big, big constitutional amendment that we love is the bail reform. When no event or combination of events can guarantee the court that I will show up and not commit another crime, a court can hold a person without bail. Formerly we could only hold a person without bail if you were arrested for capital murder. Now, I mean, just think about it: I kill your sister, but if they’re not seeking the death penalty, I’m out! Huh? I don’t think so. This is just from 1995 to 2000, laws and laws on every subject. Stalking — did you know there was no such thing as stalking in Pennsylvania until we wrote the law on stalking? Now, I gotta go to the Sheet Metal Workers [hall] so I can smell some cigarette smoke.
CP: It’s been said that you are the most influential D.A. in the state, much more influential than your predecessors, Castille or Rendell, and we wondered if you —
LA: No, I’m not doing that, no, no, no. … I’m here to do a job, I love what I do, I work hard, I love this city, I want to serve again, and I’ll leave it to history to decide who was the most influential. When I’m dead and buried it won’t make a dime’s worth of difference.
CP: As D.A., what advice do you give to a prosecuting attorney when a case starts to go south. You mentioned the Kimberly Ernest case, that case went south fairly early —
LA: It went south for a very odd reason — well, not an odd reason, but here’s the essential qualities: We had a confession in that case, which the defense successfully argued was tricked or coerced out of the defendant. We had another impediment, which was Kimberly Ernest was a sexually active woman who had some kind of liaison with somebody. Now, let’s say you and I are having an affair, Howard, I’ll make it interesting. You’re married, right?
HA: Yes I am.
LA: And I’m married. And the tape is still running. [Laughter.] Let’s assume that you and I are having an affair, and my husband knows nothing about it. … I’m walking down the street and some guy pulls me into an alley and attempts but is unsuccessful in either getting or maintaining an erection, can’t maintain an erection, so there’s no exchange of fluid, and he kills me. And I’m in the alley and they take my body to the morgue and they do swabs of my tissue and they find sperm, and they arrest the putative attacker, and … the fluids they took from me don’t match. Now let’s assume that you never did anything to me but fall in love with me, Howard, and have an affair with me. Bad move, but it was nice. OK, are you going to come forward? … You’re not going to come forward and say anything, because that man over there, the defense attorney, is going to say you killed me, not the poor helpless bum the cops arrested just because they wanted to solve a notorious case. That’s exactly what happened in the Kimberly Ernest case. Kimberly Ernest was having an affair with somebody — maybe some married person at her law firm, maybe some not married person at her law firm. That’s whose sperm was in her, but nobody was going to come forward, and that’s why those guys beat that case. Sometimes justice miscarries.