‘Vindictive’ — or only proper? DA Larry Krasner asks a Philly judge to recuse himself from all criminal cases.
The DA's office alleged that the appearance of a conflict was created by a complaint filed by Scott DiClaudio’s domestic partner, who was fired in February, with the Pennsylvania Human Relations Commission.
On Tuesday morning, minutes after arriving at Courtroom 905 at the Stout Center for Criminal Justice, defendants, probationers, lawyers, and witnesses all shuffled back out — many of them grumbling loudly.
“He’s been in jail a year already,” said Valerie Sproul, whose son, Aikeam Gamble, was expecting to enter a plea on a robbery case and perhaps be released from prison.
But Common Pleas Court Judge Scott DiClaudio had canceled his entire docket in response to motions filed late Monday afternoon by the Philadelphia District Attorney’s Office in all 39 cases listed Tuesday, demanding that DiClaudio recuse himself.
District Attorney Larry Krasner alleged that the appearance of a conflict was created by a complaint filed by DiClaudio’s domestic partner — former Assistant District Attorney Catherine Smith, who was fired from the office Feb. 8 — with the Pennsylvania Human Relations Commission. Smith, according to the district attorney’s motion, alleged that she was discriminated against because she is white.
“A reasonable person would question Judge DiClaudio’s impartiality in any cases in which the Office represents a party,” the complaint noted. A spokesperson for the district attorney added in a statement that the motion for recusal “is necessary to ensure impartial treatment of victims, survivors, defendants, and the general public. Not filing the motion in these cases has the potential to disrupt the system by causing years of future litigation."
DiClaudio, arguing that the motion would upend tens of thousands of cases making their way through the justice system, said it was a baseless act of revenge.
A spokesperson for the court administration said the leadership could not comment on a pending legal matter.
“Is the commonwealth saying that I cannot be fair?” asked an irate DiClaudio from the bench Tuesday morning while Paul George, assistant supervisor of the district attorney’s law department, quietly asserted that it was the appearance of a conflict, not the judge’s actual fairness, that was the concern. George said, “I can’t be inside your head or anyone else’s to say this person is or isn’t being fair.”
DiClaudio also reminded George that complaints with the Human Relations Commission are confidential. “Do you have any idea why Mr. Krasner decided to make it public in violation of federal law? Doesn’t it show vindictiveness on the part of the District Attorney’s Office?” DiClaudio asked. (Chad Dion Lassitor, executive director of the Pennsylvania Human Relations Commission, said in a statement that nothing in the Pennsylvania Human Relations Act or administrative rules prohibits parties to a complaint from discussing it.)
To George, the allegations only underscored DiClaudio’s disqualification. “This court is expressing hostility toward the commonwealth,” he said.
Finally, DiClaudio suggested that his relationship with Smith was “tenuous," and asked if its termination would resolve the matter. George responded that it would not.
While it was not part of the motion to disqualify filed Monday, the assistant district attorney further suggested that DiClaudio may have engaged in improper communications with the district attorney’s staff. DiClaudio last fall recommended Smith for a specific position at the office; she did not get the job. On Monday, he sent a text to homicide chief Anthony Voci to verify that Krasner himself was aware of the motions that were filed.
“Do you allege that’s an ex parte communication?” DiClaudio asked George, using the legal term for prohibited private communication between a judge and any one party to a legal action. “I do,” George said.
DiClaudio suggested that the combined allegations amounted to a threat that if he doesn’t recuse himself based on Smith’s complaint, he could be exposed to disciplinary action for those other communications.
“There’s no intent on my part to say I or anyone in my office intends to threaten this court,” George responded.
After the district attorney objected to the judge’s entering even scheduling orders, DiClaudio canceled his list — over the objection of the public defender. (The Defender Association declined to comment.) Defendants were told to line up and wait to receive subpoenas for the following Monday.
The district attorney’s spokesperson said the office had not sought continuances in any of the cases, and laid the blame for the delays on DiClaudio: "Rather than leave the bench for the day at 10 a.m., the court could have granted the recusal and sought another judge to handle the matters.”
Still, Brad Shuttleworth, a defense lawyer who’d stopped in to watch the arguments, came out of the courtroom shaking his head. “It’s completely unnecessary,” he said. “Nobody has a real problem with [DiClaudio]. The defense bar didn’t have a problem with him having a girlfriend in the DA’s Office when she was still there. It’s unnecessary because he’s fair. There’s no sense of an appearance of impropriety.”
Jeremy Cook of West Philadelphia, who was there for a pretrial conference, had more pressing concerns as he waited for a subpoena for his new court date.
“I don’t got no car fare for next Monday,” he groused.