An imprecise metaphor may sound like a trivial matter. But figurative language deployed by a flamboyant and controversial judge more than a decade ago is now the basis for legal challenges by a dozen or more Philadelphians convicted of murder.

Federal judges have already ordered new trials for two of them, and a third case is being negotiated to avert a similar outcome.

Now, it’s up to the Philadelphia District Attorney’s Office to decide how vigorously to fight those and any other cases overturned on the same grounds: jury instructions given by then-Common Pleas Court Judge Renee Cardwell Hughes that even the D.A. now concedes were unconstitutional.

Following a strongly worded opinion from federal Judge Gerald McHugh calling her instruction deficient, the D.A.'s office said it would no longer defend the instruction — putting itself in a tactically difficult position that may open the door for even more reversals. Now, the office is fighting to contain the fallout.

“We’d have scores — dozens, potentially — you know, I mean, McHugh’s opinion is a recipe for relief in every one of these cases,” the D.A.'s federal litigation supervisor, Max Cooper Kaufman, said during arguments in federal court in May 2018, according to transcripts.

It began with the case of Basil Brooks, who was convicted of the 2005 slaying of Derrick Jones, shot dead on the street in West Philadelphia. The evidence against Brooks was, by all accounts, thin: primarily, the testimony of a single eyewitness who could not pick Brooks out of a photo array, who was high on Xanax at the time the crime occurred, and who faced pending criminal charges that were dismissed for lack of prosecution shortly after he implicated Brooks.

As the trial concluded, Hughes charged the jury with assessing whether Brooks was guilty beyond a reasonable doubt.

To assist them, she conjured a metaphor: “If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion.” Anyone would ask questions, do research, she explained — but at some point you have to decide: “If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.”

Philadelphia District Attorney Larry Krasner's office attempted to avert a precedent-setting decision overturning all cases affected by the questionable jury instruction. Instead, the office is fighting the similar claims one by one.
Heather Khalifa / Staff Photographer
Philadelphia District Attorney Larry Krasner's office attempted to avert a precedent-setting decision overturning all cases affected by the questionable jury instruction. Instead, the office is fighting the similar claims one by one.

Daniel Silverman, a lawyer hired by Brooks to comb through his case for errors, believed he’d found one in that instruction and filed a habeas petition seeking relief in federal court.

“The United States Supreme Court has unanimously held that upping the ante in that regard violates the due process clause of the 14th Amendment,” he said recently.

In August 2017, McHugh, of the U.S. District Court for Pennsylvania’s Eastern District, agreed. Considering that example of a terminally ill loved one, McHugh wrote, “What level of doubt would need to exist before a juror would deny them a chance at life? Necessarily, one would need profound, if not overwhelming, doubt.”

The District Attorney’s Office filed notice it would appeal McHugh’s decision. But after Larry Krasner was elected, it withdrew the appeal, which, if denied, could have led to a precedent-setting ruling. Its position now appears to be that the instruction was improper — but not to the point of voiding all relevant convictions.

Still, it is no mere technicality, said Shari Seidman Diamond, an expert on jury instruction and a professor at Northwestern University’s Pritzker School of Law.

“The whole system of criminal prosecution is based on the notion that we won’t convict somebody of an offense unless it is beyond a reasonable doubt — and, by that, we mean that the evidence has to be extremely strong.”

She called the instruction Hughes gave “objectionable.”

By likening convicting the defendant to securing lifesaving treatment for a loved one, Diamond said, “She kind of loaded the dice in favor of convicting. By this analogy, you sure are going to want to convict, and you should never create in the jurors the sense they want to convict.”

While judges have discretion in how they advise juries, many jurisdictions, including Pennsylvania, publish suggested standard jury instructions. Diamond prefers the instruction that U.S. Supreme Court Associate Justice Ruth Bader Ginsburg proposed in a 1994 opinion: “Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”

Hughes, a graduate of Georgetown University Law Center, was known for her unrestrained speech from the bench.

In 2000, D.A Lynne Abraham unsuccessfully attempted to have her removed from the trial of a 13-year-old girl charged with murder, after Hughes made clear she thought the case belonged in juvenile court, telling the girl she had a “gorgeous smile” and promising to try to have pizza delivered to her in jail.

Hughes resigned her post in 2011 for a job leading the regional office of the Red Cross — an announcement that came just one day after a searing opinion from the Pennsylvania Supreme Court removing her from a death-penalty case and chastising her for ordering a court reporter to strike from the transcript her comments about the defendant, whom she had called “vile” during a 2008 hearing. The high court called the redaction a “reprehensible” breach of conduct. At the time, Hughes explained, “I told the [court reporter] to [remove] words that are less than judicial, because I’m Southern and I say words like 'flipping’ or ‘sucker.’ ”

Reached by phone, Hughes said that, when it came to the reasonable doubt instruction, she had selected her words carefully. In each case she added the hypothetical scenario to standard, approved language.

She did not recall when she first began using the analogy, but remembered it was developed in collaboration with lawyers in response to a question from a jury. She found the language so effective that she stuck with it in case after case.

“The lawyers liked it, it withstood appeals, and the jury seemed to get greater clarity out of it,” Hughes said.

She disagreed that likening convicting a defendant to procuring lifesaving treatment for a loved one “loaded the dice.”

She said, “What the instruction says is, ‘Be responsible. Think about it as seriously as you would think about a decision you’re making for someone you care about.’ ”

Indeed, though lawyers have repeatedly challenged Hughes' jury instructions, which she gave in as many as 50 cases, according to one advocate — judges have upheld it on at least seven occasions in state and federal courts, by the D.A.'s count.

One lawyer, Samuel Stretton, objected to it multiple times in the case of Roy Johnson, who shot and killed a man named James Lockett in West Philadelphia in 1997. Johnson claimed the shooting was in self-defense, but he was charged with first-degree murder. After two juries were unable to reach a verdict, a third, in Hughes' courtroom, convicted him of voluntary manslaughter.

Stretton said the instruction was clearly problematic. “It goes fundamentally to the fairness of the trial,” he said. But he was not surprised that the Superior Court rejected his appeal. “I’ve always felt that the Superior Court at times is so overwhelmed that they can’t adequately address many of these cases.”

Now, federal judges are, in some cases, rethinking the issue. Earlier last year, a magistrate judge recommended the court find that, in the case of Anthony Corbin, the jury instruction — though perhaps not perfect — was, on the whole, acceptable. Corbin, who was convicted of shooting a courier at a check-cashing place in West Philadelphia in 2003, objected to that recommendation based on the D.A.'s subsequent statements agreeing the instruction was flawed. The case is awaiting a final decision from a U.S. District Court judge.

Lawyer Sam Stretton in a 2011. He objected to the exact same jury instruction decades ago and appealed unsuccessfully to the state Superior Court, arguing that it was unconstitutional.
Ed Hille / File Photograph
Lawyer Sam Stretton in a 2011. He objected to the exact same jury instruction decades ago and appealed unsuccessfully to the state Superior Court, arguing that it was unconstitutional.

Now, the Philadelphia District Attorney’s Office is arguing that in many cases the instruction, problematic or not, is beside the point and that the guilty verdicts should stand.

In October, the office outlined its position in a letter agreeing to vacate the conviction of Kalif Gant, who is serving a 40- to 80-year sentence for the fatal shooting of Christopher Jones in North Philadelphia.

“The D.A.O. is assessing each case on an individualized, case-by-case basis," the letter noted. "While the D.A.O. will not be arguing in any of these matters that the instruction is constitutionally proper, it may be raising other arguments in opposition to relief, depending on the particular circumstances.”

Those determinations could be based on arguments that the jury instructions were not prejudicial — for example, in a slam-dunk conviction where the judge’s words likely did not tip the scales. In other cases, where the instruction was not challenged at trial and during appeals, the D.A is arguing the issue cannot be raised now for procedural reasons. A D.A spokesperson declined to comment beyond what was said in the court filings.

For now, Gant and Brooks are back in Common Pleas Court and could stand trial again unless they can reach agreements with the D.A

Negotiations are also underway in the case of Armel Baxter, who was convicted of shooting Demond Brown in Nicetown in 2007. According to court filings, the evidence presented against him hinged on the conflicting testimony of two eyewitnesses, along with corroborating testimony from a woman who was using 45 Xanax a day, admitted to hallucinating the day of the shooting, was held for 30 hours by police before implicating Baxter, and received immunity to testify.

Meanwhile, the D.A is adamantly opposing other cases, such as those of Tyrique Jackson, convicted of killing Sterling Almond, a cameraman working on a rap video, over a beef about insulting lyrics, and Robert McDowell, who was convicted with another man of murdering Damien Holloway and then, in order to “tie up loose ends," executing 15-year-old witness Timothy Clark.

In both cases, the D.A argues that the evidence to convict was overwhelming and that the petitions, therefore, are baseless.

In each, it concluded in filings, “No relief is due.”

This story has been corrected to reflect the status of Anthony Corbin’s case.