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Judge rules that defense attorney won’t be removed from murder case despite DA’s request

The DA's Office had raised the issue of a possible conflict of interest, but the judge said she found none.

Anthony Voci, chief of the District Attorney's homicide unit, right, with DA Larry Krasner in a January 2018 file photo.
Anthony Voci, chief of the District Attorney's homicide unit, right, with DA Larry Krasner in a January 2018 file photo.Read moreJOSE MORENO / STAFF

A Philadelphia judge ruled Friday that a defense attorney will not be removed from a homicide case even though the lawyer had expressed concern for the careers of two detectives who were seen on a video allegedly looking at the suspect’s cell phone before they had a search warrant.

Friday’s ruling and unusual hearing, which featured testimony from the defense lawyer and the district attorney’s homicide chief, followed a Dec. 20 motion filed by District Attorney Larry Krasner and Patricia Cummings, supervisor of the office’s Conviction Integrity Unit, seeking to disqualify attorney Bill Davis from the case.

In their motion, prosecutors contended that Davis, in a phone conversation with the homicide chief last month, discussed a plea deal for his client, Marquise Noel, “so that the officers depicted would not be embarrassed or have their careers ‘end[ed].'” They argued that Davis’ behavior resulted from his firm’s representation of police officers, which posed a conflict with his representation of Noel.

The defense lawyer denied the claim or any conflict. He said the plea negotiations were introduced in the conversation by homicide chief Anthony Voci.

As she had in a Dec. 21 temporary ruling, Common Pleas Court Judge Barbara McDermott said Friday she found no conflict in Davis' continued representation of Noel, 21, and his law firm’s contract with the local Fraternal Order of Police lodge.

Davis said his firm, McMonagle, Perri, McHugh, Mischak & Davis, would not represent the two detectives if the District Attorney’s Office charges them with any crimes. Both the District Attorney’s Office and Davis have said they think the detectives were illegally searching the phone’s contents.

At issue was video evidence Davis had obtained that allegedly showed homicide detectives Freddie Mole and Joseph Murray looking at a cell phone while in Penn Presbyterian Medical Center’s trauma bay about 3:30 p.m. Feb. 11, a few hours before they obtained a search warrant. The detectives were at the hospital following the shooting death of Tafari Lawrence, 23, who had been taken to the hospital.

At the same time, Noel — who was arrested two days later and charged with Lawrence’s shooting death — was also in the trauma bay for a gunshot wound to a leg.

Information on the black LG flip phone, found in a bag at the hospital, was allegedly key to linking Noel to the homicide. Noel, of Southwest Philadelphia, has pleaded not guilty and faces a June trial.

Prosecutors and police contend that the cell phone was Noel’s, although Davis says he has seen no such evidence.

It is not clear from still images of the hospital video — attached as exhibits in the district attorney’s Dec. 20 motion — what the detectives were doing when they were looking at the phone.

Police Commissioner Richard Ross said Friday that Mole and Murray remain removed from street duty while Internal Affairs investigates the allegations against them.

Gregory Pagano, an attorney representing the detectives, wrote in an email Friday evening that they “did not misrepresent any facts or evidence in police paperwork nor in sworn testimony. When examining the phone on the surveillance video, they were not conducting a search.”

He wrote that the detectives "were following the best practices in the collection of mobile device evidence for law enforcement as recommended and endorsed” by a federal agency, which “recommends putting mobile devices into airplane mode and turning off Bluetooth settings in an effort to preserve evidence and data.”

At Friday’s hearing, Davis testified that he had called Voci on Dec. 19, two days before a scheduled motion-to-suppress hearing, to let him know about the video and to use it as leverage in getting a favorable resolution for his client. He said he told Voci that if he could “resolve this case without destroying anyone’s life or career, that I would like to,” referring to the detectives.

But, Davis testified, regardless of what personal feelings he had for the possible impact on the detectives' careers, it didn’t affect what he did. He emailed the video to Voci that day, knowing that it could lead to the firing or even prosecution of the two detectives, he said.

Under questioning from Cummings, who also heads the unit that handles cases of alleged police misconduct, Voci testified that he had told the defense lawyer that perjury charges against the detectives were possible.

The judge said Davis has been acting in Noel’s best interests and has zealously represented him despite any personal feelings that Davis expressed for the detectives.

“I don’t know how you can even take personal feelings out of this business, because you can’t,” McDermott said.