Washington County DA Jason Walsh defends use of death penalty

Washington County District Attorney Jason Walsh told the state Supreme Court that prosecutors have broad discretion to seek the death penalty and urged the justices to reject a bid to limit his authority.

“This court should decline petitioners’ invitation to fundamentally reorder the criminal justice system to suit their goals,” Walsh’s attorneys wrote on Friday.

Last month, the Atlantic Center for Capital Representation filed a petition with the court asking it to limit Walsh from seeking the death penalty, alleging that he had misused the threat of capital punishment to coerce plea agreements and earn political capital for being tough on crime.

In its petition, filed on behalf of two men accused of killing children, the center said that Walsh sought the death penalty in 11 out of 18 homicide cases since taking office in August 2021.

They asked the court to exercise extraordinary jurisdiction by taking their case and then to require that any decisions to seek capital punishment in Washington County be reviewed by an out-of-county judge.

In interviews, Walsh has denied the allegations made against him. But on Friday, he filed a 100-page response urging the court to deny the petition, writing that neither of the defendants are entitled to the relief they seek.

Walsh’s court filing spent several pages detailing the underlying accusations against each defendant: Jordan Clarke, charged with criminal homicide for the death of his 2-month-old son, Sawyer, on May 23, 2022; and Joshua George, accused of shaking his 6-month-old son, Oliver, to death in December 2021.

Under the law in Pennsylvania, to obtain capital punishment, the prosecution must prove at least one aggravating factor.

In Clarke’s case, Walsh asserted three: the killing occurred during the commission of a felony, the offense was committed by means of torture, and the victim was a child under 12 years old.

In George’s case, there were two: that the killing occurred during a felony, and the victim was under 12 years old.

Over several pages, Walsh’s court filing describes the circumstances of each alleged crime, including testimony from experts who said they believed both children were the victim of severe head trauma.

In either instance, Walsh asserts, the petitioners are asking the state Supreme Court to interfere on “quintessential questions of fact for the jury.”

“And if the jury finds that the commonwealth has proven its allegations of fact beyond a reasonable doubt — allegations that each infant was throttled to death by the respective defendants — then in each case, the evidence adduced will have established the intentional homicide of a child under the age of 12,” his attorneys wrote. “In other words, each case is necessarily and undisputedly a capital-penalty eligible case.”

Walsh also wrote in his response that the decision to seek death is entirely within the discretion of the district attorney.

“More fully, the discretion to charge or not — and what to charge — has been historically recognized as an area of sovereignty for district attorneys,” the response said.

Citing previous Pennsylvania Supreme Court precedent, it continued, “More succinctly, the court held as follows: ‘If evidence exists to support any aggravating factor, the prosecutor’s discretion in proceeding with the case as capital should not be disturbed.’ ”

But more than that, Walsh said in his response that the petitioners are not entitled to the relief that they seek.

Both of their criminal cases remain pending in Washington County, and neither Clarke nor Oliver have extinguished the various remedies that exist for relief, including filing pre-trial motions or appeals were they to lose at trial.

“Petitioners are not without hope of relief if this court doesn’t act now,” Walsh’s attorneys wrote. “A panoply of remedies — designed specifically to protect capital defendants — is available. There is nothing urgent or unusual here that warrants granting petitioners a path around the numerous safeguards for people in their very position.”

As part of his filing, Walsh was also critical of a supplement filed by the Atlantic Center to the court.

Washington County Coroner Timothy Warco submitted an affidavit alleging that Walsh pressured him to assume jurisdiction of the Clarke case and submit a falsified death certificate to the state.

Warco claimed that the day Sawyer Clarke died, Walsh said to him: “ ‘(Y)ou know that I need this to be a homicide, I need it to win an election.’ ”

He alleged in the affidavit that Walsh “compelled” him to send the false death certificate, although he did not explain in what way.

In Walsh’s court response, he dismissed Warco’s claims entirely.

“Put simply, Coroner Warco’s allegations are divorced from reality,” they wrote. “Above all else, it is difficult to overstate the absurdity of the notion that the Washington County District Attorney’s office ‘needed’ the coroner to conclude anything at all about the manner of death in the Clarke matter.”

The charges were filed months before Warco submitted the fraudulent death certificate, Walsh said, and the decision to seek the death penalty was made months earlier, as well.

“As it pertains to Coroner Warco’s claim that he was somehow coerced into doing the bidding of the Washington County District Attorney’s Office, it is notable that the affidavit is utterly bereft of even a hint of the type of compulsion that was allegedly visited upon him,” Walsh’s attorney wrote. “Moreover, given that the coroner is an independent statutory officer, it is difficult to imagine the type of threat from another row officer that could coerce Coroner Warco to do anything — let alone file a fraudulent document with the Commonwealth of Pennsylvania.”

As part of his filing, Walsh submitted an affidavit of his own — from former Washington County District Attorney Steven Toprani.

In it, Toprani wrote that he served as the solicitor for Warco’s office from 2013 to 2023, and that Warco never raised concerns to him about Walsh or Sawyer Clarke’s death.

“Beginning in late 2022 and continuing in 2023, I noticed a demonstrable change in Coroner Warco’s demeanor, approach to his office and other agencies, and in the discharge of his lawful duties,” Toprani wrote.

He continued by saying that Warco began making “political decisions that exceeded his statutory authority.

“Warco was erratic and confrontational when I raised reasonable concerns to him about his conduct …”

He cited as an example Warco’s use of the coroner’s inquest process to review police use of force incidents in Washington County.

Based on Warco’s actions, Toprani continued, he resigned as solicitor.

Frances Harvey, a staff attorney at the Atlantic Center, said Walsh’s response doesn’t address the petitioner’s core argument.

“He’s pursuing the death penalty in cases that aren’t eligible for a death sentence, in violation of the constitution. He’s abusing his discretion and power. And he doesn’t dispute that. That’s why the state Supreme Court must intervene, to stop this crisis in the Washington County courts.”

The state Supreme Court has not yet decided if it will take the case. The state attorney general’s office on Friday asked for additional time to file a friend-of-the-court brief on the matter, writing in its request that it does not believe the petition has merit.

The case, the attorney general wrote, “could theoretically result in Washington County cases being reassigned to this office. It could also have unanticipated consequences for capital litigation in criminal cases throughout the commonwealth.”