August 29, 2023

Victims’ Right to Participate Post-Conviction

Meg Garvin,  MA, JD, Mst

In August, nearly 40 years after their murders, the family of Bradley and Ferne Hart filed a brief in the Third Circuit Court of Appeals seeking to be treated fairly and with dignity.  

In January 1984, Bradley and Ferne Hart were murdered in their home and their seven-month-old baby daughter was left to die. 

The next year, a jury found Robert Wharton guilty of two counts of first-degree murder and returned two death sentences. In 1992, after the state Supreme Court vacated Wharton’s sentence because of an erroneous jury instruction, a second jury again imposed his double death sentence.  

For more than three decades, the Philadelphia District Attorney’s office defended the conviction and sentence.  

But that all changed in 2019. 

In 2019, the Philadelphia District Attorney’s office suddenly and without explanation to the victims determined it would concede that Wharton’s former counsel had been ineffective, and support vacating the death sentences.  

Notably, when the District Attorney’s office conveyed this change of position to the court it indicated it was doing so “[f]ollowing . . . communication with the victims’ family.”  

In fact, only one family member received only some information. That family member was not the direct victim nor was he acting in a representative capacity. 

While there is no doubt that a prosecutor has discretion to assess merits of a case before, during, and after trials, this discretion is not unfettered. It must be exercised in the context of victims’ rights and candor to the court.  

When it comes to victims’ rights, the federal Crime Victims’ Rights Act passed in 2004, affords substantive and procedural rights to crime victims and was designed to make victims independent participants in the criminal justice process.  

In habeas proceedings, victims specifically have the rights not to be excluded; to be reasonably heard; to proceedings free from unreasonable delay; and to be treated with fairness and with respect for their dignity and privacy. 18 U.S.C. § 3771(a)(3), (4), (7), (8). 

As the family argues in their brief, “[p]roviding incomplete and misleading information to one family member, failing even to contact other victims—including a direct survivor of the crime—and then misleading a district court into believing those victims supported a decision they weren’t even aware of and vehemently disagree with is the polar opposite of treating victims ‘with fairness and with respect.’” 

When the misrepresentation was brought to the attention of the court, it determined that the District Attorney’s office failed to show candor to the court in violation of its ethical obligations. The court ordered them to apologize to the family in writing, and to present “a full, balanced explanation of facts” in future habeas proceedings.  

Despite the modesty of these sanctions, the District Attorney’s office appealed. 

It is in this posture that the victims have filed their brief; a brief seeking merely to be fully informed and treated with fairness and dignity.  

It simply cannot be that it is too much for our system to ensure victims are meaningfully informed of case progress and that courts have full information.

Meg Garvin, Paul Cassell and the legal team at Gibson Dunn served as counsel for the victim; read the brief  arguing for affirmance of a sanctions order against the Philadelphia District Attorney’s Office for failing to protect crime victims’ rights: