Adjunct Professor Joel Cohen wrote a piece published in the New York Law Journal analyzing the conduct of the Philadelphia District Attorney and an Assitant District Attorney during a hostage situation. In it, he examines the question of what lawyers should do when The Rules of Professional Conduct conflict with public safety.
So, in the midst of the stand-off, the shooter calls his lawyer, a man named Shaka Johnson, who is a former Philadelphia police officer and Assistant DA. Johnson, sizing up the situation, proposes to his client (the shooter) that he (Johnson) should patch in the District Attorney himself. With the client’s permission, the lawyer plugs DA Krasner into the call—but the DA has no experience as a hostage negotiator, and the shooter is “animated, excited, in a dangerous state,” so—with everyone’s approval—the DA conferences in the Police Commissioner. The call lasts only four minutes, but in it, to gain the shooter’s peaceful surrender, the DA proposes a mere 25-year sentence, and later in the conversation reduces that low number even further to just 20 years—a ridiculously low sentence, given the coldblooded cop shootings in question. Hours later, the shooter surrenders, maybe based on the DA’s promise or, as the Police Commissioner contends, because of a SWAT team tear gas barrage.
The DA, however, quickly recognizes (and undoubtedly knew all along during this horrific scenario) that the promise of a low sentence was extorted from him by an armed shooter with handcuffed hostages in tow. And so, after the siege, the DA admits—actually, boldly pronounces—publicly that he lied to the shooter when he promised a 20-year sentence. The DA honestly told the public that his promise was “bull…t” or “phony baloney”—and that he did not intend to abide by that extorted promise.
This scenario, however, is not a law school hypothetical—it actually happened two months ago in Philadelphia, where District Attorney Larry Krasner made that precise promise to suspected shooter Maurice Hill while on the phone with Hill and Hill’s lawyer, Johnson.
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Now, to DA Krasner’s credit, immediately after the surrender was effectuated without any further shootings, he acknowledged that he had deliberately made a false promise about the sentence. But wouldn’t it have been better if Krasner had said something like, “In the heat of the moment and trying desperately to avoid any added bloodshed, I exaggerated my willingness to give Hill leniency in order to peacefully save the hostages; but now that the situation has calmed down, I have rethought my words.” That would have been completely believable, wouldn’t it?Nonetheless, he probably spoke the truth to the public—i.e., I deliberately lied to him! (Parenthetically, Hill’s preliminary hearing, which had originally been scheduled for early September, was adjourned to give the prosecutors more time to investigate and, it is anticipated, charge Hill with additional counts of attempted murder and assault on law enforcement. So it remains to be seen how Krasner’s promise will be litigated—on both sides.)