Shapiro’s Pardons Board Pick Opposed by Clemency Advocates

by Danielle Ohl of Spotlight PA

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HARRISBURG — Gov. Josh Shapiro’s nomination to the Board of Pardons is a psychiatrist and attorney who has for decades acted as a hired expert witness in high-profile cases.

Shapiro nominated John S. O’Brien II to fill the vacancy left when psychiatrist John Williams’ term expired in November. Two Republican-controlled state Senate committees will review O’Brien’s nomination before the full chamber votes to approve or deny the appointment.

“The Shapiro administration is confident that Dr. John O’Brien II will serve the Board of Pardons well,” said spokesperson Alex Peterson in an emailed statement.

A request for comment from O’Brien was not returned as of publication.

As a member of the Board of Pardons, O’Brien would 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.

A supporter of O’Brien told Spotlight PA the doctor is “extremely intelligent” and “deeply knowledgeable about mental health issues.”

But clemency advocates and criminal defense attorneys who spoke with Spotlight PA expressed concerns about O’Brien, who has been involved in at least one case that is currently before the board.

The state Senate returns on Jan. 26, and will have 25 session days to confirm the nomination. If the Senate does not confirm the nomination within 25 session days, O’Brien will take the office as if he had been confirmed.

Frequent expert

O’Brien earned his medical degree from Jefferson Medical College in 1979 and his law degree from Georgetown University in 1986, according to a curriculum vitae Shapiro provided to the state Senate. He spent more than 20 years as teaching faculty at Jefferson, and has served as a staff psychiatrist at hospitals throughout the Philadelphia area.

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, where he does competency assessments.

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.

Spotlight PA reviewed newspaper archives that showed O’Brien’s involvement in dozens of criminal cases across the state as far back as 1987, when he testified for the defense that Lehigh University student Josoph Henry was experiencing a rare reaction to alcohol when he raped and killed a classmate.

Newspaper reports from the time of the cases said O’Brien was paid anywhere from $300 to $450 an hour for his expertise.

In 1996, the state hired O’Brien to assess du Pont, who a jury later convicted of killing Olympic wrestler David Schultz in a case that drew national attention. O’Brien did not find a clear diagnosis for du Pont, but attributed his psychosis to cocaine use and testified he was sane at the time of the murder. The court ultimately threw out du Pont’s insanity defense, and the jury found him guilty but mentally ill.

In 2012, O’Brien testified in the Sandusky case, arguing the former football coach could not have suffered from histrionic personality disorder, as the defense presented, because he was “extremely high functioning over the years.”

O’Brien has also been involved in several cases involving children, and has frequently argued the accused minors cannot be rehabilitated and should be charged as adults.

In one case, O’Brien testified that 11-year-old Jordan Brown would not benefit from rehabilitation in the juvenile justice system because he would not admit to committing the crime when the two spoke. The Pennsylvania Superior Court later threw out O’Brien’s testimony and overturned the court’s decision to try Brown as an adult, citing a violation of his Fifth Amendment right against self-incrimination.

The Pennsylvania Supreme Court overturned Brown’s entire conviction in 2018, citing shoddy evidence.

O’Brien was also involved in the trial of Jamie Silvonek, who was 14 years old when she admitted involvement in her mother’s murder. O’Brien testified that Silvonek was mature beyond her years, manipulative, and would not benefit from rehabilitation through the juvenile system. The court agreed, and tried Silvonek as an adult.

Silvonek is now seeking a commutation from the Board of Pardons, where she will need unanimous consent.

“The administration will ask Dr. O’Brien to commit to recusing himself from cases in which he had direct involvement or served as a witness,” Shapiro spokesperson Peterson said.

Differing views

The Board of Pardons considers commutation and pardon applications from people who want to either shorten a prison sentence or clear their criminal record.

The board comprises two elected officials, the attorney general and lieutenant governor, and three political appointees — a corrections expert; a medical doctor, psychiatrist or psychologist; and a victim advocate.

Applications the board deems “meritorious” are given a public hearing, after which the body votes to either deny the application or approve it for the governor’s consideration.

While pardons are recommended by the board in a majority vote, life sentence commutations, which allow a person to get out of prison, require unanimous approval — just one no vote dooms an application.

Edward McCann, a Montgomery County prosecutor who has worked extensively with O’Brien, told Spotlight PA the doctor is “extremely intelligent” and “deeply knowledgeable about mental health issues and defenses.” The two have presented on overcoming mental health defenses at an annual conference for homicide prosecutors four times since 2017, according to O’Brien’s resume.

“I believe that he’ll certainly be fair and impartial and give people that consideration,” McCann said of O’Brien’s ability to consider clemency applicants. “In many ways, I think he’s very in tune with what mental health issues can do to someone if untreated, and if someone does get treatment, how it can be transformative for them.”

Clemency advocates and criminal defense attorneys who spoke with Spotlight PA, however, expressed concern about O’Brien’s work as a hired expert for prosecutors, particularly in juvenile cases.

Keisha Hudson, Philadelphia’s chief public defender, said O’Brien is a known “wind-up expert” for prosecutors who seek to dismiss mental health defenses.

In her work on death penalty cases, her office has gathered extensive mitigating evidence on behalf of their clients — including neuro-psychological tests, brain scans and analysis of any childhood traumas — and “time after time after time again, Dr. O’Brien would come in and question and challenge and say there’s nothing wrong,” Hudson said.

“I’m a little alarmed that this would be the governor’s nominee,” she said. “He will be doing the same on the pardon board. He’s going to be assessing with that eye and the eye is prosecutorial, which is not what we need on the pardons board.”

Bret Grote, legal director of the Abolitionist Law Center, called the nomination unacceptable. “Any mental health professional who professes that children cannot be rehabilitated is the 20th and 21st century equivalent of those who believed in phrenology,” he said.

Since 2005, the U.S. Supreme Court has issued a number of opinions that reexamined whether children can be fully culpable for their crimes, and ruled out severe, mandatory sentences for children, such as the death penalty and life without parole.

The opinions rely on neuroscience that shows children and young adults are “not only capable of rehabilitation and profound change, but that is developmentally to be expected,” said Grote.

Many of the applicants before the Board of Pardons seek forgiveness for crimes committed in their teens and early 20s, Grote said, and they need to be given a review that looks at the entirety of their situation at the time.

“If someone thinks personality can be fixed when they are children, it calls into question whether that individual — in this case a mental health professional — can get over that bias,” Grote said.

What’s next

Two state Senate committees — Judiciary, and Rules and Executive Nominations — will assess O’Brien before referring the nomination to the full chamber for a vote.

State Sen. Camera Bartolotta (R., Beaver) is on both committees, and has been a vocal advocate for criminal justice reform. Reached shortly after Shapiro sent the nomination to the Senate, Bartolotta declined to comment specifically on O’Brien as a candidate.

But she said she’d like whoever assumes the role to be someone who understands a decades-old case might have a different outcome if tried today.

“We know so much more about psychological profiles and all kinds of issues,” Bartolotta said, including the effects of abuse, substance use disorder and post-traumatic stress disorder. “That plays a big role with someone when they make an incredibly awful decision.”

In pardons cases in particular, Bartolotta said, applicants want to move forward with their lives. She hopes the new board member can be clear-eyed about Pennsylvania’s overly punitive history, and give people who are decades-removed from nonviolent crimes a chance to live unencumbered by a criminal record.

“When is the reparation complete? When do we say enough?” she said. “When can you stand on your own two feet? When does the punishment stop?”

Per the current calendar, the state Senate will have until June to act on the nomination, but Bartolotta said she hopes the senate will act quickly.

“This is something that needs to be done,” Bartolotta said. “We can’t go too long without a full five-member pardons board. Hopefully, we’ll address this with the urgency it deserves.”

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