HARRISBURG — The Pennsylvania Senate on Wednesday confirmed John S. O’Brien II to the Board of Pardons, dooming a pressure campaign from clemency advocates seeking to defeat his nomination.
Gov. Josh Shapiro, a Democrat, nominated O’Brien, a doctor and attorney who has made a career as a state’s witness in high-stakes cases. The state Senate voted 38 to 10 to confirm his nomination, with only Democrats in opposition. O’Brien is registered to vote but is not affiliated with any party.
O’Brien appeared in person Wednesday before the Republican-controlled state Senate Judiciary Committee, which recommended his nomination favorably.
The committee vote fell along party lines, with Republicans supporting O’Brien save for Sen. Doug Mastriano of Franklin County, who joined the Democrats and voted no in absentia. Mastriano later confirmed O’Brien during the floor vote.
Senators from both parties said during the hearing that they’d received a large amount of opposition to O’Brien’s nomination from public defenders, clemency advocates, and constituents, who shared their concerns with O’Brien’s work as an expert witness.
Advocates worry O’Brien’s approach to criminal cases, as evidenced by his time on the stand, will presage his work on the Board of Pardons. One letter, obtained by Spotlight PA, is signed by 15 opposing groups, including four public defender offices and the Pennsylvania Prison Society.
“This appointment would cause real harm, and that harm would fall on the very people to whom the Board is meant to offer a second chance,” wrote the group.
Over three decades, O’Brien has testified in dozens of cases, almost exclusively for prosecutors. He is often called to attest that a defendant wasn’t mentally ill at the time of their crime or that minors charged as adults could not be rehabilitated in the juvenile system.
In his opening statement to the committee, O’Brien presented himself as a, “consultant providing an unbiased opinion,” who is open to working with any entity that approaches him, be it a prosecutor, defense attorney, or the court.
“I see cases for anyone who requests me to do so, providing analysis, evaluation, and opinion based on the uniqueness of each case and without regard to the source of the referral,” he said. “During my career, at times, I've been referred high-profile, complicated, and controversial cases.
O’Brien committed Wednesday to recusing himself in all cases in which his past participation would pose a conflict of interest.
O’Brien will take his seat before the board meets next on Feb. 11, and serve for six years.
Controversial history
Outside of his work as a clinician and academic, O’Brien has made a career as a hired expert witness in criminal cases, including the trials of Penn State football coach Jerry Sandusky and chemical company heir John du Pont. He is currently on staff at Pennsylvania Hospital in Philadelphia and serves as a psychiatrist on the Philadelphia Court of Common Pleas mental health unit.
During his confirmation hearing, state senators from both parties asked O’Brien about his extensive work as a witness for the prosecution.
O’Brien said that work is a “reflection of the frequency that the prosecution calls me.” But he doesn’t always testify in those cases, “because just like with any other source, I tell them what I think, and if it's not helpful to them, they don't use me.”
Spotlight PA reviewed newspaper archives that showed O’Brien’s involvement in dozens of criminal cases across the state as far back as 1987. The newsroom’s review found that when O’Brien testifies, he frequently weighs in on mental health defenses. This entails speaking to whether defendants are competent to stand trial or whether their behavior was linked to drug use rather than mental illness.
In cases where children have been charged with serious crimes, O’Brien has in several cases testified that young defendants cannot be rehabilitated in the juvenile justice system.
State Sen. Rosemary Brown (R., Monroe) asked O’Brien about his approach in these cases.
“There has been some concern that your medical philosophy leans towards a theory that children cannot be rehabilitated,” Brown said. “Can you offer any comments in regards to that sort of statement in the recent news articles or in some of the nomination questions that have come into my office?”
O’Brien said that is not his philosophy, and that mental health professionals are not trained to predict the future, which puts them in an odd position when they are called upon to assess a child’s ability to change.
When assessing young defendants, O’Brien said mental health professionals look at a variety of factors, including background, family history, prior interaction with the justice system, and mental status. In many cases, O’Brien said, his opinion is that he cannot express an opinion.
But Spotlight PA has identified a number of cases where O’Brien did express a strong opinion on a child’s ability to be rehabilitated, including one from last year in which he said a case should not be transferred to the juvenile system because the defendant had no symptoms to treat, according to PennLive reporting.
“It’s scary,” he testified. “He had no excuse for what he did.”
Democrats on the Senate Judiciary Committee took issue with O’Brien’s time on the stand.
State Sen. Nikil Saval (D., Philadelphia) said he was “disturbed” by O’Brien’s answer to Brown, because O’Brien made no mention of the impact of brain development when evaluating children who have been accused of crimes.
Saval asked O’Brien if he stood by his opinion in the case of Jordan Brown, an 11-year-old whose murder conviction was ultimately overturned for lack of evidence.
O’Brien responded that in the Brown case, he testified he “was not in a position to express an opinion with reasonable certainty” about Brown’s amenability to treatment and rehabilitation.
News coverage of the proceedings say otherwise.
According to a CBS News report, O’Brien said in his testimony that the 11-year-old’s “amenability to rehabilitation is very limited.”
He also said that Brown would not benefit from rehabilitation in the juvenile system because he would not admit to the crime.
The Pennsylvania Superior Court later threw out O’Brien’s testimony and overturned the lower court’s decision to try Brown as an adult, citing a violation of the child’s Fifth Amendment right against self-incrimination. Brown was eventually exonerated by the Pennsylvania Supreme Court.
O’Brien told Saval on Wednesday that he stood by his testimony.
Republicans on the committee asked about O’Brien’s approach to pardons and commutations.
State Sen. Cris Dush (R., Cameron), a former corrections officer, asked O’Brien if he believes people “are capable, while they're incarcerated, of correcting their attitudes and behaviors in such a way that, if they were allowed out on the streets, that they could lead productive lives?”
“I do,” O’Brien responded.
State Sen. Camera Bartolotta (R., Beaver), who chairs her chamber’s Criminal Justice Reform Caucus, asked O’Brien about his approach to women charged with life sentences who may have been experiencing abuse or postpartum depression at the time of a criminal act.
“I don't consider the board's job is to go back and relitigate the past,” O’Brien responded. He added that he would consider “all those factors from back then,” and the track record of the individual since their conviction when deciding on pardons and commutations.
“Hired guns”
As a member of the Board of Pardons, O’Brien will help make the ultimate decision on both commutation and pardon applications from people who seek to either shorten a prison sentence or wipe clean a criminal history. Board recommendations must be approved by the governor.
While the board conducts interviews with applicants and reviews investigations into their lives post-conviction, the Board of Pardons is intended to be a constitutional safeguard, not an adversarial body, said Montgomery County chief public defender Christine Lora.
In a trial court, it’s no secret that both prosecutors and defense attorneys use “hired guns,” she said, referring to commonly sought expert witnesses who will best support the position of the side calling on them. But there’s “no place for what we do in the trial courts” on the Board of Pardons, Lora said.
The hearing followed pressure from public defenders such as Lora and other clemency advocates to oppose the nomination.
In a letter to Sens. Lisa Baker (R., Luzerne) and Amanda Cappelletti (D., Delaware), a group including Sara Jacobson, executive director of the Public Defender Association of Pennsylvania; Keisha Hudson, Philadelphia’s chief public defender; and Claire Shubik-Richards, executive director of the Pennsylvania Prison Society; and a dozen additional clemency advocates urged the senators to vote against O’Brien.
The letter takes issue with O’Brien’s work on the stand, where he “does not serve as a neutral forensic psychiatrist,” the writers argue. “Instead, his opinions almost invariably align with the prosecution’s objectives, rather than reflecting balanced clinical assessments or acknowledging the nuanced realities of mental illness.”
The committee chairs also received a letter from Scott Bohn, executive director of the Pennsylvania Chiefs of Police Association, who supported O’Brien due to his “exceptional combination of medical and legal expertise, with decades of experience in forensic psychiatry and service within the Pennsylvania criminal justice system.”