Lawyers for three Philadelphia men whose murder convictions were overturned in May are asking a judge to block the Pennsylvania Attorney General’s Office from intervening in the case in an effort to reverse that outcome.
Attorneys for Marc Brittingham, Jermal Shuler, and Rasheed Turner have asked Common Pleas Court Judge Jennifer Schultz to reject state prosecutors’ effort to appeal the decision that allowed the men to go free. The lawyers said the office did not have the right to intervene at this late stage.
On June 16 — three weeks after the men’s convictions were vacated — the Pennsylvania Supreme Court issued a landmark decision expanding the state’s role in Philadelphia’s post-conviction cases. But that ruling, the lawyers said, doesn’t apply retroactively.
At issue is whether the authority of the attorney general’s office extends to cases still within a window for appeal when the court issued its sweeping decision granting state prosecutors new power to step into post-conviction cases in Philadelphia.
The answer could determine how broadly the attorney general’s office can exercise its new authority.
Last week, the office sought to intervene in the case of Brittingham, Shuler and Turner, whose convictions in the 1997 killing of Essie Mae Thomas were vacated after Philadelphia prosecutors, defense attorneys, and the judge agreed that newly uncovered evidence had undermined their confidence in the jury’s verdict.
Twenty-nine days after Schultz vacated the convictions, prosecutors withdrew the charges, and the men were released from prison after more than 28 years, the attorney general’s office filed notices seeking to intervene and appeal.
The move marked the office’s first effort to invoke the high court’s ruling, a sharply worded decision in which it Philadelphia District Attorney Larry Krasner’s office of repeatedly misleading courts while seeking to overturn convictions. The court ordered that, going forward, trial judges must notify the attorney general’s office whenever Philadelphia prosecutors concede post-conviction relief and give it an opportunity to review the case and potentially intervene.
The filings also underscore a complication the Supreme Court anticipated. The deputy attorney general assigned to the case, Hugh Burns, previously worked in the Philadelphia District Attorney’s Office, where he opposed earlier appeals by Brittingham, Shuler, and Turner to seek DNA testing in an effort to have their convictions reversed.
Justice Christine Donohue warned that the new intervention process could create conflicts when former Philadelphia prosecutors now employed by the attorney general’s office are asked to defend convictions they previously handled.
Defense attorneys say Burns’ involvement highlights that concern. They also described the attorney general’s effort as part of “an ongoing political and ideological battle” between state prosecutors and the district attorney’s office, arguing that Brittingham, Shuler, and Turner “should not be caught in the crossfire.”
The lawyers say the Supreme Court’s order forecloses the attorney general’s attempt to intervene. In its decision, the high court wrote that state prosecutors have “the right to intervene” in any case where the district attorney’s office concedes relief “before [a] ruling on the concession” is made.
The attorney general, they said in the filings, is attempting to “change the rules after the fact.”
A spokesperson for the attorney general’s office did not respond to questions Monday afternoon. Burns also did not return a phone call.
In an earlier interview with The Inquirer, Attorney General Dave Sunday said the office would be reviewing “cases that are still going through the appellate process.”
The district attorney’s office sided with the defense, saying in its own filing that the high court’s decision created a right to intervene “before [a] ruling,” not after. While prosecutors said they would comply with the court’s directive in future cases, they argued that nothing in the decision authorizes intervention in this case.
In a statement filed in the men’s case, Burns acknowledged the state Supreme Court had not yet issued its ruling when Schultz granted the men their freedom. Even so, he asked whether the court should temporarily vacate its order to allow the attorney general to intervene.
Burns’ filing does not challenge the evidence that prompted prosecutors to support overturning the convictions.
That evidence centered on newly disclosed information about the disciplinary history of Bennett Preston, a former assistant medical examiner whose testimony at trial helped establish Thomas’ time of death — testimony prosecutors later concluded was unreliable.
Two forensic pathologists hired by defense attorneys and prosecutors also concluded Preston had incorrectly estimated when Thomas died. Schultz found the new information likely would have changed the outcome of the trial had jurors heard it before issuing their verdict.