Allegheny County public defender, legal experts question ethics of district attorney's office

Two prosecutors in the Allegheny County District Attorney’s Office said earlier this month that they couldn’t withdraw criminal charges in one case or make a plea deal in another because of politics.

In both instances, the assistant district attorneys cited the upcoming primary election between their boss, six-term incumbent District Attorney Stephen A. Zappala Jr., and challenger Matt Dugan, the county’s public defender. They also referenced the Allegheny County Democratic Committee’s endorsement of Dugan on March 5.

In an interview Thursday, Zappala said he has never injected politics into his office. He called into question the allegations brought by two assistant public defenders who work under Dugan.

“These are both (public defenders) telling you these things? That’s interesting,” he said. “Defense attorneys tell the truth all the time? You live on the moon. Everybody has an agenda.”

Legal ethics experts said the prosecutors’ alleged actions were unethical and an abuse of discretion.

“That’s outrageous,” said attorney Sam Stretton, who practices in the Philadelphia area and is widely regarded as a legal ethics expert. “That’s impermissible conduct.”

The incidents in question occurred on March 7 and March 8. The defendants in both cases were acquitted on gun charges against them.

On March 7, Assistant Public Defender Kevin Horne appeared before Common Pleas Judge Jennifer Satler for a suppression hearing in a gun case.

Reserve Township police charged Horne’s client with carrying a firearm without a license and driving an unregistered vehicle.

Horne argued that a gun found in his client’s car should be thrown out as evidence because police didn’t have authority to extend the traffic stop beyond the registration violation.

Assistant District Attorney Lou Emmi, who joined the office in August, was the prosecutor in the case.

Satler granted the defense motion and threw out the gun evidence.

Horne then asked if the DA’s office was going to withdraw the case.

“‘If you don’t have the gun, you can’t prove carrying (a gun) without a license,’” Horne recalled saying.

“The DA said, ‘No. There is, in fact, a traffic violation I would like your client to plead to,’” Horne recounted. “I said we wouldn’t be doing that.”

The prosecution never gave Horne his client’s certified driving record, which is required to prove the violation, he said. That meant the defendant couldn’t be convicted on that count, either.

The judge then called the attorneys into chambers to ask why they were having a trial, Horne recalled.

“The DA said, ‘Well, your honor, it’s the season,’” Horne recounted.

“Judge Satler looked outside and pointed out the window and said, ‘You mean spring?’” Horne said.

According to Horne, Emmi responded, “‘No. It’s election season. And given the endorsement and the race that’s going on, I don’t have discretion to dismiss the case.’”

He described Satler as being “flummoxed” by the response, and said the judge called Emmi’s explanation “‘ridiculous.’”

Nevertheless, the judge allowed the nonjury trial before her to proceed.

The prosecutor called no witnesses and presented no evidence.

A transcript of the proceedings showed that Emmi attempted to add a transcript from the suppression hearing into the record and nothing else.

Horne objected, noting that with the gun evidence having been thrown out, there was nothing to introduce regarding the firearm.

Emmi had no response. Satler found the defendant not guilty on both the firearm and vehicular counts.

The judge did not return multiple messages seeking comment.

The next day, on March 8, another assistant public defender, Ben Jackson, said he had a similar encounter with a prosecutor — although this time not in a courtroom.

Jackson said he was speaking with Assistant District Attorney Heather Schultz about a client charged with DUI and illegal gun possession. The public defender said he offered for his client to plead guilty to the DUI.

Jackson recalled that Schultz, who joined the office in 2019, responded, “‘You know we don’t have a bunch of discretion on gun cases anyway. Since it’s election season and (Zappala) not getting the endorsement, we have even less.’”

The defendant had a nonjury trial before Judge Anthony M. Mariani on the gun charge and was acquitted. Jackson had argued that a firefighter who responded to the incident first had removed the gun from the vehicle and, as such, police couldn’t prove that the defendant had possession of the weapon.

The defendant then separately pleaded guilty to the DUI charge.

Both defense attorneys reported the incidents to their supervisors.

Dugan, Zappala’s primary election opponent and the head of the Public Defender’s Office, said he is contemplating filing a complaint with the Pennsylvania attorney Disciplinary Board.

“To have a policy of bringing people to trial with no evidence to present, that seems like an abuse of discretion,” Dugan said. “This all comes from lack of leadership, lack of training and lack of support for the attorneys there.”

Sources within the DA’s office reported that Deputy District Attorney Melissa Hong-Barco, a supervisor in the office’s Community Impact Unit, spoke to staff on March 6 and referenced the election and Zappala losing the endorsement.

One employee recounted that Hong-Barco told them to be cautious in offering plea deals.

Hong-Barco did not respond to a request for comment.

On Thursday, Zappala said, “I don’t know what she said or didn’t say.”

He said there has never been a directive in his office relative to politics.

“That’s not even remotely true,” he said. “I’ve never had any discussions about politics with any ADA or any supervisor for that matter.

“I don’t know where the hell that came from. None of that direction ever took place.”

Zappala said that in gun cases, line prosecutors have no authority to withdraw charges. Instead, they must go to their supervisors before making any decision.

After learning about what happened with Emmi, Zappala said supervisors spoke to the young prosecutor.

“It was a close call whether to terminate him,” he said.

Instead, Emmi was moved to a different unit, Zappala said.

Dugan said what happened with his attorneys was reminiscent to an incident in the summer of 2021 when Zappala issued an internal memo instructing his staff not to offer plea deals to defense attorney Milt Raiford, who had accused the office of systemic racism.

“Anyone who questions or challenges the DA’s office, there seems to be some form of retribution,” Dugan said. “If you have two different lawyers telling two other lawyers that the Democratic committee endorsement, or lack thereof, is impacting charging decisions, I don’t think individual attorneys are coming up with that on their own.”

Stretton said what is alleged to have happened is an ethical violation.

“It’s unethical, particularly, for a prosecutor to use politics to make decisions — and costs the system more time and effort,” he said. “You don’t punish your opponent.”

Dugan said he considered the prosecutors’ actions egregious given the potential consequences to the defendants.

“Trying somebody without any evidence is darn close to prosecutorial misconduct,” he said. “This is a weaponization of the justice system. It’s dangerous, and this is why the system needs total reform.”

Stretton cited two sections under Pennsylvania’s Rules of Professional Conduct for attorneys that could apply.

Listed under “special responsibilities of a prosecutor,” the rules say that in a criminal case, a prosecutor is to refrain from pursuing a charge that they know is not supported by probable cause.

In a comment attached to the rule, it says: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

Stretton said the behavior could also be a violation of another rule which prohibits engaging “in conduct that is prejudicial to the administration of justice.”

Bruce Green, a legal ethics expert who teaches at Fordham University, called what allegedly happened a waste of judicial and prosecutorial resources.

“It’s an abuse of discretion to go forward with a case you have no conceivable way of winning,” he said. “To do it for political reasons just compounds the impropriety.”

Green, who heads Fordham’s Center for Law and Ethics, said that beyond being unfair to the defendants, the DA’s office actions are improper.

He said the matter should be referred to the state’s attorney Disciplinary Board for investigation.

Whether Zappala gave the directive himself, allowed supervisors to do so or had no involvement doesn’t matter, Green said.

“It shows a lack of competence on the part of the higher-ups. What’s the job? Create office policy, supervise ADAs to ensure their conduct complies with ethics rules,” Green said. “When two young prosecutors independently think they should make discretionary decisions based on politics, you’re not doing a very good job.”

Stretton said the young prosecutors involved should have known what they were saying was wrong.

“Youth and inexperience can be mitigating factors in a disciplinary procedure,” he said.

But, he continued, “You’re a DA. You take an oath. You do not let politics interfere. It shows a lack of professionalism and understanding.”

Zappala said he didn’t know if what Emmi did was an ethical violation.

“If they want, file a complaint against these guys,” Zappala said. “Go ahead. Knock yourselves out.”