Federal judges have already ordered new trials for two of them, and a third case is being negotiated to avert a similar outcome.
Now, it’s up to the Philadelphia District Attorney’s Office to decide how vigorously to fight those and any other cases overturned on the same grounds: jury instructions given by then-Common Pleas Court Judge Renee Cardwell Hughes that even the D.A. now concedes were unconstitutional.
Following a strongly worded opinion from federal Judge Gerald McHugh calling her instruction deficient, the D.A.'s office said it would no longer defend the instruction — putting itself in a tactically difficult position that may open the door for even more reversals. Now, the office is fighting to contain the fallout.
“We’d have scores — dozens, potentially — you know, I mean, McHugh’s opinion is a recipe for relief in every one of these cases,” the D.A.'s federal litigation supervisor, Max Cooper Kaufman, said during arguments in federal court in May 2018, according to transcripts.
It began with the case of Basil Brooks, who was convicted of the 2005 slaying of Derrick Jones, shot dead on the street in West Philadelphia. The evidence against Brooks was, by all accounts, thin: primarily, the testimony of a single eyewitness who could not pick Brooks out of a photo array, who was high on Xanax at the time the crime occurred, and who faced pending criminal charges that were dismissed for lack of prosecution shortly after he implicated Brooks.
As the trial concluded, Hughes charged the jury with assessing whether Brooks was guilty beyond a reasonable doubt.
To assist them, she conjured a metaphor: “If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion.” Anyone would ask questions, do research, she explained — but at some point you have to decide: “If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.”
Daniel Silverman, a lawyer hired by Brooks to comb through his case for errors, believed he’d found one in that instruction and filed a habeas petition seeking relief in federal court.
“The United States Supreme Court has unanimously held that upping the ante in that regard violates the due process clause of the 14th Amendment,” he said recently.
In August 2017, McHugh, of the U.S. District Court for Pennsylvania’s Eastern District, agreed. Considering that example of a terminally ill loved one, McHugh wrote, “What level of doubt would need to exist before a juror would deny them a chance at life? Necessarily, one would need profound, if not overwhelming, doubt.”
The District Attorney’s Office filed notice it would appeal McHugh’s decision. But after Larry Krasner was elected, it withdrew the appeal, which, if denied, could have led to a precedent-setting ruling. Its position now appears to be that the instruction was improper — but not to the point of voiding all relevant convictions.
Still, it is no mere technicality, said Shari Seidman Diamond, an expert on jury instruction and a professor at Northwestern University’s Pritzker School of Law.
“The whole system of criminal prosecution is based on the notion that we won’t convict somebody of an offense unless it is beyond a reasonable doubt — and, by that, we mean that the evidence has to be extremely strong.”
She called the instruction Hughes gave “objectionable.”
By likening convicting the defendant to securing lifesaving treatment for a loved one, Diamond said, “She kind of loaded the dice in favor of convicting. By this analogy, you sure are going to want to convict, and you should never create in the jurors the sense they want to convict.”
While judges have discretion in how they advise juries, many jurisdictions, including Pennsylvania, publish suggested standard jury instructions. Diamond prefers the instruction that U.S. Supreme Court Associate Justice Ruth Bader Ginsburg proposed in a 1994 opinion: “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”
Hughes, a graduate of Georgetown University Law Center, was known for her unrestrained speech from the bench.
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