When is killing ‘murder’? Philly DA Larry Krasner rethinks homicide prosecutions.
In the past, Krasner said, "It was essentially how high a charge can we get away with?" His approach is to proceed only on what he thinks the evidence supports.
Late on a Tuesday last November, a Drexel University graduate named Joseph Howanski encountered Merlos Mukaj and his girlfriend arguing on the street. Howanski, 24, tried to intervene, but the 21-year-old Mukaj shoved Howanski and took a swing at his head.
Howanski, who had a concealed-carry permit, pulled his gun and shot Mukaj three times, killing him.
Howanski stayed at the scene and cooperated with police, telling detectives he acted to protect himself. Still, he was arrested, charged with murder, and denied bail.
Then the District Attorney's Office leadership changed — and in August, the office unilaterally dropped the lead charge against Howanski to third-degree murder. That meant Howanski could be released on bail, and it reduced his potential sentence from life in prison to as little as six years.
District Attorney Larry Krasner, who made that call, said Howanski's case is an example of a broader policy shift at his office about how to properly and fairly prosecute defendants who kill.
In the past, Krasner said, "it was essentially, 'How high a charge can we get away with?'" His approach — which he believes is long overdue — is to utilize the spectrum of possible homicide charges, and proceed on what he thinks the evidence supports.
That can range from involuntary manslaughter (reckless or negligent killing) to voluntary manslaughter (unjustified killing in self-defense or in response to an extreme provocation) to third-degree murder (unpremeditated killing), all the way up to first-degree (malicious and intentional killing).
Since Krasner was sworn in Jan. 1, his office has reduced charges to third-degree murder or manslaughter in at least six cases initially filed as "murder generally" — an umbrella that encompasses first-, second-, and third-degree. In other cases, it sought lesser charges from the start.
The new strategy aligns with Krasner's oft-expressed belief that former prosecutors were out for wins — in the form of excessive prison sentences — rather than for justice. The way Krasner sees it, what looks like a radical shift is merely restoring balance — moving away from overcharging, which he called a "gutless" abdication of responsibility.
"Part of the motivation for always charging the highest charge was the political management of victims. It became very easy to always say what aggrieved, traumatized victims want to hear," Krasner said. That meant charging first degree in every case, he said: "Then, when a jury or judge a year or two later has to straighten that out and knock it down to size, you just raise your fist and shake it at the judge or jury."
Krasner's desire to upend the system has made him a darling of progressives and a high-profile national figure in the movement for criminal-justice reform. But it's been unpopular with victims' families — and with current and former prosecutors who argue that there are valid reasons for charging murder generally.
Former Pennsylvania Gov. Ed Rendell, who was Philadelphia district attorney from 1978 to 1986, noted that many cases depend on nuanced factual determinations that may best be reserved for a judge or jury to decide.
"The downside is that someone escapes the appropriate punishment," Rendell said. "You've taken the charge off the table, so neither the jury nor the judge has the right to impose it."
George Fisher, a Stanford University law professor and codirector of the school's Criminal Prosecution Clinic, said the approach Krasner outlined is ethically sound.
"The general ethical principle is that the crime should be charged according to what it is," Fisher said.
The difference in Pennsylvania between first- and third-degree murder is that first-degree is intentional killing. But proving intent is complicated.
Case law suggests a bullet or knife to a fatal organ can demonstrate intent, but Krasner pointed out that most killers are not trained marksmen. And although prosecutors often argue that intent can be formed in an instant, Krasner offered a different interpretation.
"We all recognize there's a big difference between going out and buying a pair of gloves and a ski mask and a gun … and carrying out an assassination, as opposed to the kind of things that can unexpectedly occur when two people who don't know each other spontaneously meet," he said.
His willingness to make those distinctions has impacted cases such as that of Michael White, the bike courier who is accused of fatally stabbed developer Sean Schellenger during an altercation near Rittenhouse Square in July. Three weeks after White's arrest, the office reduced the charge against White from murder generally to third-degree.
Similarly, the district attorney opted to lodge a charge of third-degree murder against Letoya Ramseure, who shot her ex-boyfriend with his gun after he allegedly burst through her front door and assaulted her. Krasner insists that in "a previous administration, [it] would have been charged as murder generally." Ramseure's lawyer argued it was a clear case of self-defense, and a judge reduced the charge to voluntary manslaughter.
A notable side effect is that bail is permitted in third-degree cases.
That benefited Rashaun Sanderlin, a 22-year-old man who allegedly stabbed Wayne Wright, his mother's boyfriend, to death in August.
Richard Giuliani, Sanderlin's lawyer, said that under a previous administration Sanderlin likely would have been locked up while awaiting trial. But there's evidence the victim had threatened Sanderlin, Giuliani said. He believes the district attorney took that into account in charging the case as third-degree.
"He has no record," Giuliani said of Sanderlin. "To spend the time until trial, maybe 18 to 24 months [in jail] … even if you walk, you're never the same."
Still, the simple act of acknowledging a spectrum of culpability in homicide cases can put a district attorney in a tough position. Each fact-specific judgment invites comparisons to other cases, raising questions of consistency.
Howanski's lawyer, Fortunato Perri Jr., said he repeatedly asked prosecutors to drop the first-degree count against his client. He renewed his request after the office downgraded the charge against Michael White, who also had used a deadly weapon from a defensive posture in a fight.
Two weeks after White's charges were modified, so were Howanski's.
The challenge also can be seen in the cases of Charles Bowers and Shihed Tomoney.
Bowers, 60, allegedly intervened in a May dispute between neighbors in Bridesburg and ended up punching a man twice. The man, William Stephens, fell, hit his head, and died. Charged with involuntary manslaughter, Bowers is free on bail and faces a maximum five-year penalty.
Tomoney, meanwhile, is in jail facing a count of murder generally for allegedly shooting Mahdi Bey in North Philadelphia in May. According to court documents, surveillance video captured Bey approaching Tomoney and pistol-whipping him. The two struggled over Bey's gun before Tomoney gained control and pulled the trigger. If convicted, Tomoney, 40, gets an automatic life sentence.
Tomoney's lawyer, James Berardinelli, said the district attorney offered to let Tomoney plead guilty to voluntary manslaughter. Tomoney, who views the case as self-defense, rejected the offer.
No criminal culpability
Anthony Voci, chief of Krasner's homicide unit, said the office's new approach has allowed it to work more efficiently, building trust with opposing lawyers, and in some cases advancing investigations more quickly. More pragmatically, Voci said, the number of cases resolved by plea deal has increased.
Of 171 homicide cases resolved this year, 83 were guilty pleas, 60 guilty verdicts, 17 not-guilty verdicts or hung juries; the office decided not to prosecute 11 others.
But determinations to drop or reduce charges — whether during charging or, later, during plea bargaining — can be difficult for families.
Crystal Lewis, for one, will never understand how the killing of her mother, Pamela, was not premeditated murder.
Pamela went missing in November 2013, and Crystal immediately suspected her mother's boyfriend, Jermele Hudson. But when she confronted him at his North Philadelphia home, he insisted that Pamela was visiting family in New Jersey. And when Crystal tried calling her mother, she received texts confirming the story.
But the Lewises didn't have relatives in New Jersey. And Pamela, who was illiterate, had never texted a word beyond "CAL ME."
Crystal Lewis said she shared all of this with detectives, but the case was not closed until last October, when a contractor found Pamela's body chopped up and buried in a vacant lot in Tioga. Hudson had killed her, disposed of her body, and drained her bank account.
Hudson, now 44, was charged with murder, but in September was allowed to plead guilty to voluntary manslaughter.
Lewis feels cheated — out of a trial that could have revealed exactly what happened to her mother, and out of the security of knowing that Hudson would be jailed for life. Instead, he could be out in 11 years. She thinks her mother wasn't a priority because of her race, income level, and drug use.
Ben Waxman, Krasner's spokesperson, said the case against Hudson lacked physical evidence or eyewitness accounts. "Voluntary manslaughter was the only charge that our office felt could stand up in court," Waxman said.
Still, what Lewis finds particularly unfair is that her own father is serving a life sentence. Mark Mobley was 19 when he shot a cab driver during a fight in 1991.
"My father got locked up for protecting himself and he's away for life," Lewis said. "How could you let someone like [Hudson] be able to walk free?"
Fisher, the Stanford law professor, noted that what a killer does after the fact — disposing of a body, for example — doesn't determine whether it counts as murder. That's much more about the defendant's mental state at the time of the killing.
That's the challenge Krasner faces — to make decisions based on facts that aren't perfectly knowable.
But he said that should not prohibit prosecutors from making the best choice they can with the evidence they have.
"People who think you should use every tool in the toolbox when you go to fix something are not going to be happy when we only use the tools that are appropriate," he said. "It's a fundamental philosophical difference."