‘I Need This to Be a Homicide'

The Atlantic

5 days ago

It was exactly the kind of case that a prosecutor eager to win more death-penalty convictions looks for: When he arrived at UPMC Children's Hospital of Pittsburgh in 2022, 11-week-old Sawyer Clarke had fractures in both legs and bleeding behind both eyes from a brain hemorrhage; he died a day later. His father, Jordan Clarke, had been supervising Sawyer at the time, and insisted that he hadn't hurt his son on purpose, but rather had slipped on a plastic grocery bag while holding him and had fallen on top of him. Evidently nobody in a position of authority took his explanation seriously. In very short order, Clarke was arrested and charged with homicide. He remains in police custody awaiting his trial, where he will face the death penalty.
But the district attorney in Pennsylvania's Washington County, Jason Walsh, was apparently not as certain about the nature of the case as his quick decision to seek capital punishment would suggest. This week, a petition filed in the Pennsylvania Supreme Court argues that Walsh deliberately tampered with the child's death certificate, allegedly telling Timothy Warco, his county's coroner, 'You know that I need this to be a homicide. I need it to win an election.'
Warco claims that Walsh then pressured him into producing a certificate that listed the death as a 'homicide, with shaken baby syndrome/abusive trauma as the mechanism.' A copy of this allegedly fraudulent death certificate is included in the petition. (Walsh disputes Warco's account, calling the allegations 'false and without merit.')
Society detests child murders, and capital punishment in that context can be especially appealing to the voting public. A canny prosecutor might deduce, therefore, that harshly punishing child killers would increase their odds of reelection. An affidavit signed by Warco suggests that Walsh had said as much privately.
If Walsh did what the petition alleges, it is not only a shocking case of prosecutorial misconduct but also proof of a point that advocates against the death penalty have long argued: The punishment, theoretically reserved for the worst of the worst, is in fact exploited by prosecutors for political advantage, even in cases where guilt is unclear.
The petition was submitted by the Atlantic Center for Capital Representation, a nonprofit group (with no connection to this magazine), on behalf of Jordan Clarke and another defendant. It describes Walsh's lusty pursuit of the death penalty since he became DA, in 2021: 'His office has sought a death sentence in 11 out of 18 homicides, a shocking percentage (61%) far outside the mainstream of Pennsylvania capital prosecutions.' (Walsh dismissed the petition as 'an attempt by a liberal Philadelphia anti-death penalty group to throw a liberal Hail Mary and also create a liberal smear campaign against a Republican.')
Warco's affidavit lays out what he says happened after the baby's death. The longtime medical examiner in Allegheny County, where the hospital is located, was responsible for performing the autopsy—but Warco attests that Walsh conspired to change jurisdiction over the autopsy to his own county. He did this, presumably, because he doubted that Karl Williams, who was then Allegheny County's chief medical examiner, would rule the death a homicide, and because believed that he would have more sway over Warco, his local coroner, who indeed eventually acted as he directed. (Walsh disputes these allegations too: 'They are made by an individual, whom I have an established record in the Court system of challenging his ability to do his job as coroner. He admits in an affidavit to being a liar and perpetrating a fraud.' He added: 'This Office will protect children and seek justice for children when they are victims of heinous crimes.')
The autopsy was carried out by Warco's office, which determined that the cause of death was 'blunt force trauma to the head' but was unable to determine the manner of death. Those findings were forwarded to Williams's office, which ruled that the manner of death 'could not be determined.' Warco alleges that Walsh, unhappy with this result, pressured him into filing a second death certificate, this one listing the manner of death as a homicide, and shaken-baby syndrome as the mechanism.
When I spoke with Williams, he confirmed that he would never have produced the certificate that Walsh desired. 'The most pernicious dogma, especially in pediatrics, is that you can grab a baby and shake them to death,' Williams told me. 'There is no scientific foundation for the ability to shake a baby to death,' he said. 'It has no science.' The most common criteria for ruling that a child died of shaken-baby syndrome are bleeding in the tissue at the back of the eye and bleeding near the brain. But those injuries can result from a variety of different kinds of trauma. Williams told me that he has been fighting against the notion of shaken-baby syndrome for more than 20 years—and had ruled the manner of death in at least one potential shaken-baby case 'undetermined' rather than homicide.
That coroners continue diagnosing shaken-baby syndrome, and that prosecutors keep basing cases on it, despite the fact that the syndrome has come under scientific and legal scrutiny, is 'horrible, it's frightening, it's scary,' Williams said. And it could get an innocent person killed.
Walsh's alleged plan to evade that 'undetermined' ruling eventually failed. Pennsylvania state officials rejected Warco's death certificate, ruling that he lacked jurisdiction in the case, despite Walsh's attempt to convince the court otherwise. But Jordan Clarke is still charged with homicide and aggravating factors including 'torture,' and, if convicted, could still face the death penalty—unless the Pennsylvania Supreme Court intervenes. The petition asked it to do just that, and to curtail Walsh's capacity to pursue the death penalty going forward. If he did what the coroner alleges, it could be construed as obstruction of justice, and it raises the dark possibility that more of Walsh's cases may be similarly corrupted.
This story also provides a glimpse into the machinery behind capital punishment. Prosecutors, the petition reminds readers, have 'considerable discretion to seek the death penalty,' and 'might abuse that discretion in a corrupt, illegal, unconstitutional, and self-aggrandizing way.' If nothing else, this case undermines the presumption that the death penalty is administered fairly. It's impossible to know how many Jason Walshes there might be in America prosecuting cases right now, nor how many Jordan Clarkes, staring down death.