For the Defense - Vol. 5, Issue 1 - 36

Discuss this waiver with your client with the same
in preparing his/her defense for trial. Specifically, a
seriousness
you would discuss the waiver of any
defendant can assist30 counsel in establishing his/her
constitutional
right.
defense theory,
in the investigation of the case, and

Using
the strategy above, people both in and
18
United States v. Himler, 797 F.2d 156, 160-61 (3d Cir.
outside my office have had tremendous success with
1986).
Rule19600
motions.
Chagra,
850 F.Oftentimes,
Supp. at 356.just making it plain
20 Commonwealth that you intend to seriously
with securing
defense
While pretrial
release to the
Id. at 356-357; see also United States v. Rice, 2011
* Request
discovery
earlywitnesses.
and in writing.
That way,
litigate
get you
results.
is November
only one 28,
may not be an option pursuant to the BRA for all
U.S. this
Dist.issue
LEXIScan
136363,
at *12
(E.D. ItPa.
if the Commonwealth fails to provide requested
defendants, defense counsel should understand the
2011).
weapon in your arsenal, but because a win means
discovery,
any required
continuance
willhearings
be on often
21
fundamentals
of the BRA,
as detention
United
v. Barnett,
986 that
F.Supp.
385, 400
(W.D.
discharge,
it States
is a potent
weapon
should
never
the
prosecution.
If younotice.
have to follow-up with the
occur
on a moment's
La. 1997) citing United States v. Fortna, 769 F.2d 243,
be overlooked.
250 (5th Cir. 1985).
Commonwealth about discovery they have failed to
22
NOTES:
United States v. Madoff, 586 F. Supp. 2d 240, 249
hand over, be sure to memorialize such requests in
NOTES:
(S.D.N.Y.
2009).
a 1writing such as an email.
1 23
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HEXIDECIMAL

*

*

*

*

Every jurisdiction has its own procedural nuances and
the
specific way is
it required
conducts the
If a continuance
dueproceeding.
to the
2
18
U.S.C.
§§
3141-3156
(1990);
United States
v. to
Chagra,
Commonwealth's failure of diligence,
be sure
850 F. Supp. 354, 356 (W.D. Pa. 1994).
put
that on the record at the time the continuance
3
the uniteD states Department of Justice, criminal resource
is m
requested.
Even if the judge does not rule in
anual, crm 26, release anD Detention penDing JuDicial
your
favor, you
have 3141
at least
preserved
the issue for
proceeDings
(18 U.S.C.
et seq.)
https://www.justice.
appeal.
gov/jm/criminal-resource-manual-26-release-anddetention-pending-judicial-proceedings-18-usc-3141-et.
All4 Pursuant
motions to
to Federal
dismiss Rule
pursuant
to Rule
600 must5,be
of Criminal
Procedure
31
File requires
your client's
made
in writing.
an initial
appearance
that amotion
personafter
who the
is
arrested
or
in
response
to
a
summons
appear
365-day period has elapsed. If the trial judge rules
beforeyou
a magistrate
judge andthe
be advised
that he/
against
and subsequently
Commonwealth
she
has
a
right
to
counsel
or
to
request
that
counsel
causes another substantial period of delay, file
be appointed. If the initial appearance is related
a new Rule 600 motion based on this additional
to an indictment, the defendant will be advised of
time
litigate
it priorenter
to any
trialguilty
to preserve
an
the and
criminal
violations,
a not
plea, and
objection
to the
timehearing.
period.If the initial
then proceed
toadditional
the detention
appearance involves a defendant charged via criminal
Atcomplaint,
the Rule 600
hearing, after
defense
has the
the defendant
has athe
right
to challenge
made
a prima
facie
that the
probable
cause
for showing
the complaint
and defendant
then proceed to
has
been brought
thenot
detention
hearing.to trial within 365 days,
5
18
U.S.C. § 3142(a)(1)-(4).
the
Commonwealth
bears the burden of proving
6
Chagra,
850 F.nonetheless
Supp. at 356.
that they have
acted with diligence.
7
18 U.S.C. § 3142(c)(1)(b).
This
means that after the defense has made such
8
18 U.S.C. § 3142(c)(1)(b).
a 9prima
facie
showing, it is the Commonwealth
18 U.S.C.
§ 3142(e).
10
who
required to put on its evidence
18should
U.S.C. be
§ 3154(1).
11 the defense should only argue after the
and
In order to provide practical guidance, the author
interviewed several
criminal
attorneys
Commonwealth
has done
so.defense
Essentially,
a Ruleand
600
reproduced
their
quotations
with
their
permission
hearing should proceed in form almost identically
toherein.
a suppression hearing. If the judge asks you
12
If the judicial officer determined that the defendant
toisargue
prior of
tothe
theUnited
Commonwealth's
evidence,
not citizen
States or lawfully
admitted
make
it clear that
you could
possibly argue
for permanent
residence,
thenot
Government
has 10 days
ontobehalf
client until
you 18
know
what
the
notify of
theyour
appropriate
agency.
U.S.C.
§ 3142(d)(1)
(b)
and
(2).
Commonwealth's evidence of diligence is.
13
18 U.S.C. § 3142(f).
If 14the
18 Commonwealth
U.S.C. § 3142(e). appears at the Rule 600
15
Pursuant
18 U.S.C.
§ 16, a any
crime
of violence
hearing and to
does
not present
evidence
that
means
(a)
an
offense
that
has
as
an
element
thenot
use,
it acted with diligence-for instance, they did
attempted
use,
or
threatened
use
of
physical
force
bring in the officer to testify to the attempts made
against the person or property of another, or (b) any
to find and apprehend the defendant-argue that
other offense that is a felony and that, by its nature,
they
haveanot
met their
burden
because
theagainst
burden
involves
substantial
risk
that physical
force
ofthe
proof
includes
the burden
production
and of
person
of another
may beof
used
in the course
committing
offense.
arguments
ofthe
counsel
are not evidence.
16
18 U.S.C. § 3142(e)(2).
17
18 U.S.C. § 3142(e).
#153A5B

36

For The Defense l Vol. 5, Issue 1

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234/194/56

Commonwealth
v. Mills,
162 A.3d 323 (Pa. 2017).
Himler, 797 F.2d
at 162.
2 24
U.S.United
ConSt. AStates
mend. VI;
PA. CONST.
1, 628,
§ 9. 631 (2nd Cir.
v. Orena,
986art.
F.2d
3
Commonwealth
v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
1993).
4
Barker
v. Wingo,
407 U.S. 514, 530 (1972) (articulating the
25
18 U.S.C.
§ 3142(f).
constitutional
Commonwealth v. Preston, 904 A.2d
26
18 U.S.C. §test);
3142(f).
1,2710 (Pa. Super. Ct. 2006) (the Barker test is an entirely
United States v. Renzulli, 1987 U.S. Dist. LEXIS 8750,
separate analysis from Rule 600 and therefore needs to be
at
*6separately).
(E.D. Pa. September 28, 1987).
raised
28
18
U.S.C.
§ 3145.
5
Pa.R.Crim.P. Rule
600(2)(a); see also Commonwealth
29
Fortna,
769
F.2d
at 395
250,(Pa.
citing
United
States
v. Kearse, 890 A.2d
388,
Super.
Ct. 2005)
(nov. Freitas,
602
F.
Supp.
1283,
1293
(N.D.
Cal.
1985)
and
United
"prejudice" need be shown to obtain Rule 600 dismissal).
States
v.
Thibodeaux,
663
F.2d
520,
522
(5th
Cir.
While Rule 600 has a more definitive time period, the 1981)
sole
focus
of under
Rule 600
is onlaw).
the action of the Commonwealth.
(same
prior
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6
Pa.R.Crim.P. Rule 600(D)(1).
HEXIDECIMAL

#153A5B

#EAC137

About the Author

Ashley print
E. Shapiro
Click here to view and/or
the is
full notes section for
this
article.
a criminal defense
attorney with more than
a decade of experience
defending clients in state
and federal courts. She
Katherine
is an
focusesErnst
her practice
on
appellate
attorney
with
the
white collar criminal
Montgomery
County
defense, internal investigations
and Public
corporate
Defender's
Office.
She
compliance matters in Pennsylvania, New
handles
appeals
from
all
Jersey, and New York.
Ashley
has
extensive
units, juvenile to homicide,
experience in providing counsel in various
and she also formulates
complex fraud cases, including healthcare,
legal strategy for pre-trial
bankruptcy,
and
financial
fraud, as well
and trial units. Katherine graduated Magna Cum
as criminal
tax violations.
also has
Laude
from Loyola
Law School, Ashley
New Orleans
representing
individuals
in
in experience
2007 and was
on law review.
She practiced
such as out
Title IX
at administrative
Kaufman, Corenproceedings,
& Ress in Philadelphia
the collegiate
student
ofinvestigations
law school, and and
thereafter
did work in
the
intersection
of horseracing
and §1983
a
conduct process.
She islaw
counsel
with for
Buchanan
number
of
years
before
following
her
passion
Ingersoll & Rooney, P.C. in Philadelphia.

About the Author

for indigent criminal defense.

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