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FOP is back in court seeking to block Philly police misconduct disclosures

DA Larry Krasner sought a contempt finding against the Philadelphia police for withholding records of police misconduct. Now, the DA and police are working toward an "amicable resolution."

Philadelphia Police Commissioner Danielle Outlaw (left) listens as District Attorney Larry Krasner speaks during a news conference in a January 2021 file photograph.
Philadelphia Police Commissioner Danielle Outlaw (left) listens as District Attorney Larry Krasner speaks during a news conference in a January 2021 file photograph.Read moreTIM TAI / Staff Photographer

It seemed District Attorney Larry Krasner’s approach to transparency — a promise his office has attempted to fulfill by maintaining a police misconduct database — was on trial this week.

A state appellate court affirmed that his office does have a duty to track that information and disclose it to defense lawyers in affected cases. But the verdict on how to do so while protecting the rights of police officers is not yet in.

On Tuesday, a Pennsylvania Commonwealth Court opinion effectively revived a lawsuit by the Fraternal Order of Police Lodge 5, the Philadelphia police officers’ union, that alleged the DA violated their basic rights by creating a “Do Not Call” list — that is, a list of officers the DA would not call as witnesses in court because of potential questions about their credibility.

However, at a Wednesday news conference, Krasner offered a different reading of the opinion: “We won,” he said.

The court reiterated that the DA does have an obligation to obtain and disclose information on police misconduct. But, it said, police officers also have due-process rights that must be protected.

» READ MORE: Three ex-Philly homicide detectives charged with perjury for their testimony during the retrial of an innocent man

And Wednesday, Judge Lucretia Clemons, the supervising judge for the criminal trial division in Philadelphia Common Pleas Court, was set to hold a hearing on motions by the DA to find the Police Department in contempt for failing to provide subpoenaed personnel files in six cases. The DA said the police had routinely failed to adequately disclose such information, often heavily redacting disclosures or providing only brief, one-page summaries of extensive Internal Affairs investigations.

Krasner said such documents were routinely shared with prior administrations because they “were cover-up organizations for police misconduct.” He said asking judges to enforce and monitor such requests represents a last-ditch effort after repeated requests over more than three years were unsuccessful.

The Police Department had attempted to preempt the hearing before Clemons by asking the Pennsylvania Supreme Court to exercise its King’s Bench authority — a long-shot request for the state’s high court to intervene. The department argued it was necessary given that thousands of cases could be affected.

On Friday, though, the state’s highest court rejected the petition. (Three justices dissented, saying the DA’s “potential serious abuse of the subpoena process” demanded an urgent response.)

So, the proceedings before Clemons appeared to take a different tone.

“We might be able to resolve these matters amicably,” Clemons said, canceling the hearing after hours of discussion with lawyers in her chambers. That is, the parties would work toward a settlement.

A Police Department spokesperson, Eric Gripp, said the department recognizes its obligation to give prosecutors information about known misconduct, and does so when requested. A lawyer contracted to represent the department, Peter Carr, did not respond to a request for comment.

Meanwhile, the FOP lawsuit regarding the “Do Not Call” list will return to Common Pleas Court. Now, the court has guidance from the appellate court, emphasizing that it must find a solution that recognizes both the DA’s disclosure obligations and the officers’ “fundamental right to protect their reputations.” That, the court noted, means providing advance notice of any misconduct disclosure and access to an impartial tribunal where officers can challenge their placement on the list.

The DA’s Office says that lawsuit is misguided, noting the DA doesn’t maintain a “Do Not Call” list. Instead, it keeps a database of misconduct by about 700 current and former officers. That information is then disclosed when appropriate to defense lawyers, or used to inform prosecutors’ decisions about whether to call an officer as a witness.

» READ MORE: One case exposed decades of misconduct by Philadelphia homicide detectives. How many more are tainted?

Patricia Cummings, chief of the DA’s Conviction Integrity Unit, called the appellate court’s decision an “affirmation of what we’ve been saying all along: We have constitutional obligations to disclose this information.”

She said the DA’s Office had always had a process by which officers are informed of their inclusion in the database and given an opportunity to dispute or correct any factual misrepresentations.

John McNesby, the police union president, said a goal is to make sure officers who are cleared of wrongdoing are not unduly stigmatized.

“There’s got to be some kind of fair playing field,” McNesby said. He added, ”There’s got to be some kind of structure where they’re put on the list ... [but] some remedy also to be taken off.”

Staff writer Chris Palmer contributed to this article.