Judge denies motion asking to remove DA from Donora homicide
Attorneys for two men who are accused of killing a Donora convenience store worker in 2021 are claiming the Washington County district attorney’s office is coercing another co-defendant to testify against them by “hanging the death penalty over her head.”
Ken Haber, one of two defense attorneys for Devell Christian, argued that District Attorney Jason Walsh’s continued pursuit of death penalty cases is for “political, personal gain” as he faces an upcoming election for his office.
“There appears to be an unprecedented, spiraling out of control (decisions) to pursue the death penalty by Mr. Walsh. There is a pressure campaign to have witnesses fall in line,” Haber said.
Haber and co-counsel Ryan James were attempting to remove Walsh from the homicide case and asked President Judge John DiSalle during a hearing Thursday morning in Washington County Court of Common Pleas to reassign it to the state Attorney General’s office for prosecution. But after listening to arguments for about an hour, DiSalle issued an order later in the day denying the request, citing no proof of “impropriety, conflict of interest or any other grounds that would support a finding” to remove the district attorney’s office from the homicide case.
Christian, 34, of White Oak, and Sidney McLean, 34, of Washington, are accused of going into Anna Lee’s Convenience Store at 501 Allen Ave. in Donora on Feb. 24, 2021, and firing multiple shots at 28-year-old Nicholas Tarpley, who died after being struck by six bullets.
A third co-defendant, Jah Sutton, who was McLean’s girlfriend, is also charged in connection with the killing, although initially as an accessory in the case.
Haber noted that Sutton was charged with conspiracy to commit homicide and possessing an instrument of crime, both of which were bound over to trial during her preliminary hearing in February 2022. However, during her formal arraignment on the charges two months later, Haber said the district attorney’s office announced its intention to pursue the death penalty against Sutton, but had to amend the criminal complaint to add the upgraded criminal homicide charge so she was eligible. Sutton has never faced a preliminary hearing on that particular charge to determine whether there is enough evidence to proceed to trial.
“By charging conspiracy, he’s announcing that that’s the best charge, the highest charge he can prove,” Haber said. “Because they don’t want to give up the death penalty, they were more interested in the penalty than the charge.”
DiSalle questioned the direction of the argument, particularly because neither Sutton nor her attorneys attended the hearing despite being a party to the motion to disqualify.
“We’re not here to litigate her pre-trial rights,” DiSalle said.
Haber responded that prosecutors were “leveraging” the chance of the death penalty in Sutton’s case to get her to testify against Christian and McLean, who are the two accused shooters.
“They’re hanging the death penalty over her head, it’s weighing on her mind to get her what they want her to do, which is testify,” Haber said.
Haber argued that it’s a much larger issue within Washington County, where there are currently nine homicide cases with 12 total defendants who are facing the possibility of the death penalty if they’re convicted of first-degree murder. There were just 40 such cases elsewhere across the state as of May.
Haber brought up one particular death penalty case in Washington County as example, pointing to Jordan Clarke, who is accused of killing his son by violently shaking the 11-week-old infant while inside his Peters Township home. Haber noted that the manner of the child’s death is undetermined, so he questioned how the death penalty could be sought in that case without proof of a homicide. He then added that Walsh promoted the Clarke case on his campaign Facebook page, which he called “unsavory at best and improper and unlawful at worst.”
“Anyone who ever ran for office said they’re going to be tough on criminals,” DiSalle said.
Walsh, a Republican who was first assistant district attorney when he was elevated to district attorney in August 2021 following the death of Gene Vittone, is running for election in the Nov. 7 primary against Democrat Christina DeMarco-Breeden.
DiSalle then tried to steer the conversation away from other cases and focus only on the motion directly in front of him.
“I’m not going to go over all the cases in Washington County. That’s an unfortunate circumstance we have here,” DiSalle said about the number of homicides in the county in 2021 and 2022.
Walsh, who was seated directly behind Deputy District Attorney John Friedmann, did not argue his side in the courtroom. Instead, Friedmann handled the response and denied there were political reasons for the office to pursue so many death penalty cases.
“Where’s the conflict?” Friedmann said. “At the end of the day, while they’re denying it, it really comes down to a philosophical argument (over) the death penalty. … We’re not here to argue whether there should be a death penalty. Everyone has their own opinions on that.”
Friedmann called the killing of Tarpley by two masked men who shot him in the back multiple times while he was making a sandwich for a customer “one of the worst of the worst” cases.
“They’re saying, ‘The DA is pursuing the death penalty (too often), so our guys shouldn’t face it.’ But that’s not the standard,” Friedmann said. “At the end of the day, whether to seek the death penalty … is under the discretion of the district attorney. It’s not an easy task.”
Haber responded that the motion to disqualify wouldn’t necessarily take the death penalty off the table, but it would allow the Attorney General’s office to make that judgment with fresh eyes on the case.
“We’re not asking you to dismiss the death penalty in this case,” Haber told DiSalle. “We’re asking you to assign a different prosecutor.”
DiSalle appeared unmoved by the arguments from Haber during the nearly hour-long hearing and seemed to struggle to find a basis for disqualifying the district attorney from prosecuting the homicide.
“Where is the conflict where I can say there is reason for intervention to bring the Attorney General into the case?” DiSalle asked.
DiSalle watched the 30-minute state police interrogation of Sutton following the hearing to see if he could detect any coercion in the interview. He denied the motion in a two-page order filed Thursday afternoon.