DA Krasner challenges subpoena in Morris case

Philadelphia District Attorney Larry Krasner is challenging PGN’s subpoena to appear at an upcoming court hearing regarding the paper’s request for additional records in the Nizah Morris case. PGN issued the subpoena last month, which includes a request that Krasner bring with him the office’s entire Morris homicide file.

In a 115-page filing, attorneys for Krasner argue that he shouldn’t be required to appear at a Common Pleas Court hearing, citing three privileges that would preclude his appearance.

According to the DA’s brief, “The deliberative process privilege protects the thoughts, ideas, and analyses that encompass how an agency reaches a decision… If [PGN] seeks District Attorney Krasner’s testimony about his involvement in prosecutorial decisions relating to the investigation into the death of Nizah Morris, the testimony would be protected by the deliberative process privilege.”

Regarding the law-enforcement privilege, “District Attorney Krasner’s testimony concerning his involvement in the investigation of this case plainly relates to a criminal investigation and could reveal law enforcement techniques, internal deliberations, and internal policies and procedures employed by the DAO. Thus, the law enforcement privilege provides an additional, independent basis to quash [PGN’s] subpoena,” the brief states.  

Regarding the work-product privilege, “[PGN] is not entitled to obtain testimony from District Attorney Krasner about his mental impressions and legal opinions of this case. That is the work product of the prosecutor and therefore protected from disclosure pursuant to the work-product privilege,” according to the brief.

A court ruling on the DA’s motion to quash the subpoena, which was filed July 9, hadn’t been issued, as of presstime.

Morris, 47, was a trans woman of color found with a fatal head wound in December 2002 shortly after receiving a “courtesy ride” in the Gayborhood from Philadelphia police. Her homicide remains unsolved.

In March, PGN filed a motion in Common Pleas Court, seeking enforcement of a 2008 court order for transparency in the Morris case. PGN has received numerous Morris records due to the court order. But the Philadelphia District Attorney’s Office is withholding about 30 interviews and legal memoranda that could help explain what happened to Morris.

In a related development, the Reporters Committee for Freedom of the Press and the Pennsylvania NewsMedia Association filed an amicus brief in support of PGN’s request for additional records in the Morris case.

The July 9 amicus brief asserts that the state’s Criminal History Records Information Act doesn’t bar the release of all criminal records.

“In sum, the weight of case law from Pennsylvania courts makes clear that CHRIA does not create a per se bar to the release of records related to a criminal investigation,” the brief states. “Instead, a court should review — on a case-by-case and record-by-record basis — the specific information in the requested records to determine if it is ‘investigative information’ that may be excluded from public access.”

The amicus brief notes that Krasner has indicated support for transparency in the Morris case. 

“[CHRIA] cannot be used as a shield to prevent disclosure of all records in the Nizah Morris case,” the brief asserts. “Philadelphia District Attorney Larry Krasner, while professing a desire to release information about the Nizah Morris case, has also raised the possibility of being barred from doing so because of CHRIA. During a March 31, 2021, forum of the Liberty City Democratic Club, he was questioned about the Nizah Morris case by the publisher of the Philadelphia Gay News and responded: ‘So let me tell you this, Mark [PGN publisher]. It’s, you know, I can’t do something that is strictly illegal and there’s some dumb law in Pennsylvania known as CHRIA the Criminal History, what is it Records Ectetera Act, which also makes it hard to help victims… So, there are occasions that no matter how much I want to do the thing, I can’t do it because it’s illegal. But I believe that there are ways that we can get a very large chunk if not all of the Nizah Morris file that was turned over.’”

The amicus brief continues: “While the District Attorney’s concern about the application of CHRIA is understandable, such concern is misplaced, particularly given the murky factual background of the Morris investigation. Contrary to his vague invocation of CHRIA, District Attorney Krasner voiced a desire to grant access to much of the Morris file, noting ‘there’s been no sign for 15+ years that a prosecution actually was going to come’ from the case.”

The amicus brief reiterates that CHRIA shouldn’t interfere with the court order. “Notably, in this case, the documents at issue in the May 15, 2008 Stipulated Order appear to be a ‘reconstituted’ investigative file. It strains credulity to use CHRIA’s definition of ‘investigative information’ to apply to a ‘reconstituted’ file in a case that has been described by the District Attorney as inactive for 15 years. For the same reason, it is particularly difficult to understand any attempt to characterize the Morris case as still under investigation, given the District Attorney’s own description of the case.”

The amicus brief was written by Paula Knudsen Burke, a staff attorney with the Reporters Committee for Freedom of the Press and Melissa Bevan Melewsky, media law counsel for the Pennsylvania NewsMedia Association. They issued this joint statement: “Hopefully the court sees PGN’s dogged advocacy in the Nizah Morris case and recognizes that public access is not only legally required, but it’s the right thing to do. This case has lingered unsolved for too long, and access could lead to a positive development or illustrate the need for a change in policy or practices.”

In another development, city attorneys on July 9 filed a brief stating that PGN has received numerous Morris records due to the 2008 court order and isn’t entitled to about 30 interviews and legal memorandum at the DA’s office. According to the city, those additional records don’t fall under the purview of the court order. 

The city’s brief emphasizes the inaccessibility of the DA’s Morris records. “The City cannot sue the DAO to seize investigatory documents that are DAO created property and that the City has no right to compel,” the brief asserts.

Moreover, the city’s brief claims the “original” police homicide file for the Morris case was located in 2011 and a copy was given to PGN. But according to PGN, the file is missing numerous items, including 911 tapes and/or transcripts.

Philadelphia Common Pleas Judge Joshua H. Roberts has been assigned to the case. A hearing on the dispute is set for 1:30 p.m. July 19. Additional information was unavailable as of presstime.

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Tim Cwiek has been writing for PGN since the 1970s. He holds a bachelor's degree in history from West Chester State University. In 2013, he received a Sigma Delta Chi Investigative Reporting Award from the Society of Professional Journalists for his reporting on the Nizah Morris case. Cwiek was the first reporter for an LGBT media outlet to win an award from that national organization. He's also received awards from the National Lesbian and Gay Journalists Association, the National Newspaper Association, and the Keystone Press.