Larry Krasner

A Pennsylvania appeals court has rejected Philadelphia District Attorney Larry Krasner's bid to have a Philadelphia Court of Common Pleas judge removed from criminal cases because the judge's girlfriend, a former prosecutor, has accused the district attorney's office of discrimination.

A three-judge Superior Court panel Wednesday upheld the dismissal of a motion to disqualify Philadelphia Court of Common Pleas Judge Scott DiClaudio, who was accused by Krasner of appearing partial.

The District Attorney's Office did not respond to a request for comment.

Krasner's April 8 motion argued DiClaudio should recuse from hearing criminal cases because his girlfriend, Catherine Smith, currently has a complaint pending with the Pennsylvania Human Relations Commission against the District Attorney's Office, alleging she was fired in February from her position as an assistant district attorney because she's white.

Upon learning of the motion, which was filed in a case captioned Commonwealth v. Gamble, DiClaudio told Paul George, assistant supervisor of the law division, that the recusal request showed "vindictiveness on the part of the District Attorney's Office," according to a Philadelphia Inquirer report from April. DiClaudio ultimately canceled his entire docket for that day.

DiClaudio denied Krasner's request for recusal, and the DA subsequently appealed. But the Superior Court sided with DiClaudio.

"Judge DiClaudio cohabitates and is in a romantic relationship with [Smith], and that relationship does give rise to the potential for conflicts of interest," Judge John Bender wrote in the court's opinion. "However, [Smith] has not yet filed a lawsuit against the district attorney's office. Rather, [Smith] has initiated a charge of racial discrimination with an administrative agency against the district attorney's office that may, eventually, lead to actual litigation."

Bender continued, "Furthermore, there is no indication in the record that Judge DiClaudio would personally be involved in such potential litigation in any capacity, whatsoever. The commonwealth suggests that Judge DiClaudio could one day stand to benefit from [Smith's] allegations financially; however, the commonwealth has produced no evidence to that effect. There is no evidence of record indicating that Judge DiClaudio's and [Smith] finances are substantially intermingled so as to permit such an assumption."

Krasner argued that DiClaudio's "combative tone" in the courtroom shows his partiality.

"However, much of what the commonwealth refers to as a combative tone by Judge DiClaudio, such as where Judge DiClaudio recounted 'a number of instances in which he believed' that the district attorney's office 'created [an] appearance of impropriety[,]' could also be construed as his engaging counsel with hypotheticals to aid in his understanding of the standard for recusal," Bender said.

Bender concluded, "In sum, we conclude that it belies reason to suggest that Judge DiClaudio would favor a criminal defendant, or disfavor an individual assistant district attorney working for the district attorney's office, based solely on [Smith's] filing of the racial discrimination charge. Only the most unreasonable and cynical layperson could harbor such a suspicion based on the mere possibility of future litigation by a relative of Judge DiClaudio."