A Pennsylvania Superior Court panel on Tuesday upheld a decision to ban the retrial of a man on gun charges in Allegheny County because of prosecutorial misconduct.
The 2-1 opinion affirmed a decision by now-retired Allegheny County Common Pleas Judge Donna Jo McDaniel, who found in March 2017 that an assistant district attorney improperly contacted a defense character witness in a case he was trying before her.
Mike Manko, the DA’s spokesman, said prosecutors will ask that the case against James Taric Byrd be reconsidered by an en banc panel of nine Superior Court judges.
Byrd was arrested Feb. 23, 2015, on gun and drug charges in McKeesport. The charges were severed, and the gun case went to trial in November 2016.
On Nov. 30, then-Assistant District Attorney Lawrence Sachs learned Byrd planned to call a character witness the next day. Mr. Sachs called the woman, Brandi Wilson, later that afternoon to find out what she would say.
During the conversation, Ms. Wilson said she wasn’t planning to testify because she couldn’t leave work. After that, Mr. Sachs later told the court, he spoke with Ms. Wilson about Byrd and asked if she knew him well. He recounted the man’s criminal history and told her he was one of the most dangerous people he’d come across. Mr. Sachs also told her he knew more about her than he should — referencing that he'd listened to recorded jail calls between Byrd and Ms. Wilson.
Several hours later — at 1 a.m. — Ms. Wilson left a voicemail for Judge McDaniel in which she said she felt threatened by Mr. Sachs and was afraid of him and possible retaliation.
After receiving the message, Judge McDaniel declared a mistrial, saying that Ms. Wilson’s perception was what mattered.
The judge also banned Mr. Sachs from appearing in her courtroom. He retired in 2018 after more than 30 years as a prosecutor.
In March 2017, Judge McDaniel ruled that the gun case against Byrd could not be retried based on prosecutorial misconduct, which triggered double jeopardy protections -- that a person can’t be tried for the same crime twice.
The commonwealth presented evidence to the court — a recorded phone call from the jail between Byrd and Ms. Wilson the evening after she spoke with Mr. Sachs — that prosecutors believed showed that it was Byrd who raised the idea of her feeling threatened. But Judge McDaniel was not swayed — nor was the Superior Court panel.
“We agree with the trial court that the commonwealth, through the actions of Attorney Sachs, intimidated Ms. Wilson to prevent her from testifying with the intent of depriving [Byrd] a fair trial,” the majority — Judges Jacqueline O. Shogan and Deborah A. Kunselman — wrote. "Attorney Sachs’s statements placed Ms. Wilson in fear for her own safety and for that of her family. We cannot conclude that Attorney Sachs’s actions were mere prosecutorial error; rather, they were intentional acts of prosecutorial overreaching implicating double jeopardy protection."
In a 14-page dissenting opinion, Judge Eugene B Strassburger III said he did not believe there was any intention on Mr. Sachs' part.
Judge Strassburger wrote that what should have mattered in reaching the question of double jeopardy was Mr. Sachs' intent, not how Ms. Wilson felt.
"The standard requires consideration of the prosecuting attorney’s intent in making the comments, not simply whether the receiving person subjectively or even objectively felt threatened by the comments," he wrote.
Judge Strassburger noted, too, that prosecutors are not prohibited from interviewing potential defense witnesses.
"In my view, the evidence falls short of supporting a finding of intentional subversion of the court process and instead looks like the mishandling of a witness interview with poor people skills. "
Judge Strassburger also said he found it troubling that Judge McDaniel voiced her personal feelings about Mr. Sachs on the record.
“This particularly concerns me since this court twice has had to take the extraordinary step of ordering the recusal of this particular jurist due to the personal animus she has demonstrated towards the attorneys appearing before her. "
Mr. Sachs declined comment since the case is pending.
Prior to her retirement in January, Judge McDaniel had been ordered three times to step down from cases involving sex offenders before her because of her refusal to follow the orders of the state Superior Court in resentencing them.
Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard.
First Published: April 30, 2019, 10:12 p.m.
