Chester County District Attorney Thomas Hogan and the state police union continue to trade barbs in a lawsuit over a list of law enforcement officers whom Hogan bars from testifying in criminal cases.
Sean T. Welby, the attorney representing former state Trooper Brandon Daniels and the State Police Troopers Association, earlier this month filed a motion asking a Chester County judge to issue a ruling in the case.
The suit, filed in September, centers on a police-involved shooting May 23 in which three troopers fired at a suspect in a DUI-fueled chase in London Grove Township. Daniels, the on-scene commander, was accused by Hogan in an internal memo of making several critical errors during the investigation of the shooting, earning his place on the district attorney's "do not use" list of officers he deems unworthy of being called to the witness stand.
Welby maintains that the list, first disclosed in that memo, is unconstitutional and permanently damaged Daniels' reputation.
Hogan has called upon Judge Edward Griffith to dismiss the case, saying it has no merit. In a more recent filing, submitted last week, attorney Michael Pullano says Hogan's maintenance of the "do not use" list and the continued inclusion of officers like Daniels was done to "defend the integrity of the criminal justice process." As district attorney, Hogan is not obligated to call a witness he doesn't consider credible.
Pullano also noted that there were no cases in which Daniels was expected to testify at the time of his retirement in October.
"District Attorney Hogan has lawfully exercised his authority and discretion by barring an untrustworthy police officer from testifying for the Commonwealth of Pennsylvania," Pullano wrote, adding that the state police union was "trying every legal trick in the book" to reverse this decision.
"This is precisely the type of conduct that undermines public trust in law enforcement," Pullano wrote.
But Welby wrote that Hogan "misperceives the basis" of the lawsuit. It has nothing to do with Hogan's ability to decide whom to call as a witness in a prosecution, which is "near absolute," Welby wrote. Instead, it has to do with the list his office maintains, which he asserted violates the constitutional right of due process.
"However, when [someone with Hogan's authority] goes beyond simply maintaining a formal list … and notifies an officer's superiors and other high-ranking officials of that officer's placement on such a formal list, the damage to reputation is more concrete," Welby wrote.
It's unclear how many officers are on Hogan's list — he has declined to comment publicly on it aside from what has been revealed in Welby's lawsuit. Court filings say that "there is only one active-duty police officer in Chester County" currently on the list, and that the officer has been placed into a position where he won't be required to testify.
Additionally, three "current or former state troopers" are on the list: Daniels, Jose Lebron, and John Sromovsky. The latter two were convicted of criminal charges in unrelated cases: Lebron in 2017 for buying cocaine from a confidential informant and Sromovsky earlier this year for physically assaulting a DUI suspect.
Daniels, who denies that he did anything wrong, was given "no advance notice that this action was to occur or that his superiors and a representative of the governor's office would be notified," according to Welby.
Hogan added Daniels to the "do not use" list after "his failure to follow policy resulted in a series of critical errors during the investigation of the trooper-involved shooting," according to court filings. Daniels, he wrote in his internal memo, lied when questioned about why he didn't notify the District Attorney's Office immediately about the shooting, saying he didn't have Hogan's number and "had other things to do."
Welby argued that Hogan was "obliged to take the necessary steps of prior notice and an opportunity for hearing before a fair and impartial tribunal" before adding Daniels to his list. Neither was given to Daniels, who found out about his inclusion in Hogan's memo to his superiors, Welby wrote.
Pullano contends that the claim about the violation of Daniels' constitutional rights "is simply illogical."
"Should the district attorney decide that an officer is not trustworthy enough to testify, but not keep a list of such officers for the orderly administration of justice?" Pullano wrote. "Could the requirements of the Constitution be fulfilled if the district attorney was the only person allowed to know the identity of the officers?"
He added that Hogan notified Daniels' superiors as a "matter of administrative necessity," noting that they needed to be aware Daniels isn't allowed to testify.
"Again, plaintiffs seem to be taking the slightly ridiculous position that the district attorney can decide Daniels will not testify, as long as the district attorney never tells anybody about this fact," Pullano wrote.
Pullano noted that Daniels was given an opportunity to address Hogan about his actions during the officer-involved shooting, and that his information is included in the report Hogan compiled. Hogan also offered Daniels an opportunity speak with him after the report was compiled, which he declined, Pullano wrote.
A similar lawsuit was filed this month in Philadelphia by the Fraternal Order of Police against Mayor Kenney, District Attorney Larry Krasner, and city police officials.