DA wants lawyers removed from Wilkinsburg slayings case

The Allegheny County District Attorney’s office is seeking to disqualify three of four attorneys representing the men accused of a mass shooting at a 2016 cookout in Wilkinsburg because of a potential conflict of interest with a new jailhouse informant.

The parties met on the issue during a hearing Wednesday before Allegheny County Common Pleas Judge Edward J. Borkowski.

They will reconvene Nov. 1.

The witness, who has not yet been publicly identified, came forward in February with information about the case against Cheron Shelton, 31, and Robert Thomas, 30. Deputy District Attorney Kevin Chernosky said that his office — after reviewing the veracity of the offered information — made the decision in September to use the witness.

He is the third potential jailhouse informant the prosecution has contemplated using in the case since the homicide charges — for five adults and an unborn child — were filed. The DA’s office had previously decided not to use the first two witnesses based on their histories of testifying in other cases and potential behavior in court.

Mr. Chernosky filed a formal motion Friday to disqualify Randall McKinney, who represents Shelton, as well as Casey White and Michael Machen, who represent Thomas. In that motion, he asserted that Mr. McKinney and Mr. Machen had represented the man, identified as Witness No. 1, in a previous case.

It also alleges that Mr. White represents a co-defendant of the informant in a case currently pending.

“[T]here is no question that just the very idea of Mr. McKinney and Mr. Machen cross-examining Witness 1, their former client, inherently divides loyalties,” Mr. Chernosky wrote in his motion. “This alone is grounds for disqualification due to a critical conflict of interest.”

He goes on to say that he does not believe a waiver of the conflict on the part of the defendants, which both men have already agreed to, can solve the issue.

“Naturally, both defendants would benefit greatly from their own waivers; the truly affected client here is Witness 1,” the prosecutor said.

Mr. Chernosky said his office is not intentionally seeking a delay in the case — which Judge Borkowski characterized as having a “tortured history” — and would not benefit from the attorneys’ removal.

“It was hopeful that Mr. McKinney and Mr. Machen would weigh the seriousness of the matters against even just the potential of conflict and withdraw before taking action,” the prosecution wrote.

But Mr. McKinney, in a written response, argued that there is a presumption in the law that favors a defendant’s right to his attorney of choice.

“To overcome the presumption in favor of a defendant’s counsel of choice, there must be a demonstration of an actual conflict of interest or a showing of a seriously potential for conflict,” Mr. McKinney wrote.

He asserted that his involvement with Witness No. 1 was minimal. Mr. McKinney said he represented the witness at a preliminary hearing in April 2016 where all charges were withdrawn. The witness was then indicted by a grand jury on the same charges in January 2017, but Mr. McKinney said he was not aware of that, and the man had court-appointed counsel at that time.

The witness then rehired Mr. McKinney in November 2017. However, after the witness agreed to cooperate with Pittsburgh police against his co-defendants, and following a proffer session with detectives on Feb. 14, 2018, Mr. McKinney learned that he was conflicted off of the witness’s case.

Mr. McKinney argued that under Superior Court precedent, it is presumed that a defense attorney would not reveal privileged information while crossexamining a former client.

“Defense counsel asserts that he does not have any non-public or non-discoverable information that could be used during crossexamination, nor would he improperly reveal any such information,” he wrote.

Mr. White and Mr. Machen joined in Mr. McKinney’s response.

Mr. Chernosky said if the court is not willing to disqualify the attorneys, at a minimum it should appoint an outside ethics expert to evaluate the potential conflict — to which the defense lawyers also objected.