Legal expert: Misconduct allegations lodged against DA's office, police may be difficult to prove

Allegations of misconduct aired this week against a former Westmoreland County prosecutor and the New Kensington Police Department could be difficult to prove, according to a legal expert.

Saint Vincent College law professor Bruce Antkowiak said Thursday that defense attorneys for a former Pittsburgh man not only have a high bar to substantiate misconduct claims, but an even tougher road ahead to win a new trial for their client.

Denard Galloway, 59, has been serving a life prison sentence since 2005 for a 1999 murder outside of a New Kensington bar.

Defense attorneys for the San Francisco-based Racial Integrity Clinic contend the 2005 conviction of Galloway should be overturned because of the alleged actions of a former county prosecutor and New Kensington police.

According to its website, the nonprofit organization takes on difficult appeals on behalf of clients who claim they were victims of biased prosecutions.

Antkowiak, a former federal prosecutor, said Galloway will have to convince a judge that not only was evidence willfully withheld from the defense, but that if it had been available at his trial, it likely would have resulted in a different verdict.

“It’s very difficult to prove,” Antkowiak said of the allegations. “You have to get access to the information that was not turned over prior to a trial. People don’t realize that even if there was an error, it has to be prejudicial. And the question becomes, ‘Can you still have confidence in the verdict?’”

Defense lawyers will have to first show that evidence was withheld, that the appeal was filed in a timely fashion, then prove to a judge that had it had been disclosed, it could have changed the outcome of the trial, he said.

“It’s not automatic it will result in a new trial,” Antkowiak said.

Conviction dates to 1999

Galloway was originally convicted of the February 1999 murder of 43-year-old Terry Anderson outside of a bar. Prosecutors said Galloway claimed he was shorted $51 in a prior drug deal and shot Anderson multiple times.

The defense now argues one witness has since recanted her testimony. It also claims the credibility of two others are in question, based on an unconfirmed belief there are undisclosed records of multiple witness interviews with prosecutors prior to trial.

Galloway was originally convicted of first-degree murder following a capital trial in 2000 that saw jurors reject a bid by prosecutors to impose the death penalty.

That conviction was overturned in 2003, when a county judge ruled defense attorneys failed to properly question witnesses during the first trial.

He was retried and convicted again in 2005 and sentenced to life in prison without parole.

110-page appeal

According to testimony this week and detailed claims raised in a 110-page appeal filed this year, Galloway’s new lawyers claim former Assistant District Attorney Larry Koenig and New Kensington police investigators withheld key witnesses statements that refuted trial testimony and discredited key witnesses who would have bolstered an alibi defense.

As part of the appeal, the defense claims there is a basis for their allegations against Koenig and former New Kensington detective and police Chief Ronald Zellers, including records of a reprimand issued by a county judge in a related case for withholding evidence from defense attorneys.

“There is a pattern that emerges in the cases involving the New Kensington police department and Mr. Koenig as prosecutor,” wrote Common Pleas Judge Richard E. McCormick Jr. in 1999. “Repeatedly, evidence is misplaced and unaccounted for to the point where it becomes as Detective Zellers himself admitted, embarrassing.”

The judge described the police department’s maintenance of evidence as “sloppy” and “cavalier,” and said Koenig’s actions “bends the discovery rules and defies the court’s directives.”

He wrote, “The court is deeply concerned with a perceived pattern of prosecutorial behavior in various cases involving ADA Koenig, claims lodged against Koenig and New Kensington police.”

Both Koenig and Zellers, who is deceased, also were named as defendants in a federal lawsuit that alleged prosecutorial misconduct involving another murder in New Kensington.

That lawsuit was dismissed in 2006.

Heightened sense of alarm

Defense attorney Emily Smarto served as Galloway’s defense lawyer in his second trial. She testified this week that she and other defense lawyers have a heightened sense of alarm in cases that involved Koenig and New Kensington police. She suggested it was routine to be concerned about the prospect that evidence could be initially withheld, deemed missing and, in some cases, later turn up during a trial.

“Cases involving New Kensington (police) and Larry Koenig always heightened defense attorneys’ concern about being surprised and trial by ambush,” Smarto testified Tuesday.

A former Westmoreland County assistant district attorney now in private practice, Smarto said Koenig’s reputation has been water cooler talk among defense attorneys. She recalled in her testimony an incident in which Koenig was admonished by former District Attorney John Peck for conducting witness interviews alone and not with detectives present.

Peck, who served nearly a quarter century as district attorney, lost a reelection bid in 2022 and died last year.

Koenig is among eight witnesses subpoenaed to testify by Galloway’s defense team as part of its effort to gain access to the district attorney’s investigatory files and records they say is needed to substantiate their claims. That hearing is expected to resume later this year.

Koenig, who retired from the district attorney’s office in 2018 and according to state records no longer practices law, declined to comment on the allegations.

Westmoreland County District Attorney Nicole Ziccarelli also declined comment on the specific allegations and — through an email from spokeswoman Melanie Jones — said Koenig “was never employed by this administration and retired prior to the current DA taking office.”

Records indicate Koenig was never subjected to any punishment or findings by the state Supreme Court’s Disciplinary Board. There are no public records of any formal disciplinary complaints lodged against Koenig.

New Kensington police Chief Bob Deringer, Mayor Tom Guzzo, Councilmen Dante Cicconi, Todd Mentecki and Tim DeMaio did not respond to emails and calls seeking comment.

City Solicitor Anthony Vigilante said he did not have enough information about the allegations to comment.

‘Not an opening to mass reversals’

Antkowiak said if Galloway’s appeal ultimately proves successful, its impact could be limited.

“Even if they’re able to prove it happened with one prosecution or one assistant district attorney, it’s not an opening to mass reversals of convictions,” Antkowiak said. “You’d have to go through this with each case to see if there’s misconduct. At this point, the chances are relatively low to give out new trials. It’s not going to open up a floodgate to reversals.”

Still, if Galloway’s claims can be proven, it could impact future prosecutions.

“It’s something the district attorney’s office will have to deal with because confidence is a critical factor for the public,” Antkowiak said.