For the Defense - Vol. 5, Issue 2 - 44

Ray spent a few hours with me and MD in the
Bucks County Correctional Facility where MD had
been brought for a week to prepare with me.4
He watched me consult with MD in English. He
then spoke with MD in Spanish outside of my
presence. Ray concluded that MD's command of
English was so limited that given the stress of trial
he could not understand all or any significant
part of what happened the first day of trial when
the most incriminating evidence-the victim's
testimony-was presented. The PCRA judge, the
Honorable Robert O. Baldi, took great interest in
Ray's testimony and asked a number of questions
himself.
Ray's testimony occurred at the end of the
one hundred and fifty days the rules allow for
deciding post-verdict motions, at the last of
four hearings where I was allowed to develop
a record for the post-verdict motions. Bucks
County's bench was understaffed at the time,
and courtroom space precious. The hearings
were further delayed by a storm that deprived
Doylestown of power for several days and my
own prolonged illness resulting in hospitalization
on one of the scheduled court dates. In the
three preceding hearings, MD's grown daughters
testified about their father's difficulties with
English. The detective who took MD's statement
after arrest, the probation officer who wrote the
pre-sentence report and a former employee all
testified they had no problems communicating
with MD in English. However, none could
recall the specifics of a single conversation
with him, nor whether they had to adjust their
vocabulary or speak slower than usual to make
themselves understood. Judge Baldi required
briefs on several issues throughout the hearings.
Soon after Ray testified, Judge Baldi issued his
decision. He found no error in the absence of an
interpreter on the first day of trial because trial
counsel forewent the opportunity to insist on
one. He made no findings concerning MD's ability
to understand the first day's proceedings.
In retrospect, this is my biggest regret about
how I handled the matter. I should not have
pursued a direct appeal, but immediately filed a
PCRA. Naturally, the Superior Court affirmed the
trial court, though one of the panel members
recommended the filing of a PCRA to show
counsel was ineffective. After the Supreme Court
denied allocator, I did. The time spent in the
direct appeal, save for the evidence adduced at
the hearings, was for naught.
44

For The Defense l Vol. 5, Issue 2

I spent several months preparing the PCRA
petition, delayed by a recurrence of my illness
and a determination to get this right. While MD's
lack of English fluency was an issue, I thought the
main issue was the lack of preparation for trial.
I filed a PCRA petition focusing on the lack
of defense preparation, the failure to use the
victim's mother's denials of guilt to counter
her statements introduced by way of the coconspirator exception to the hearsay rule,
and the lack of an interpreter. (I raised some
issues regarding the sentencing too, but only
to highlight the lack of preparation. I did not
consider a new sentencing hearing a victory.) I
asked Judge Baldi to set aside two consecutive
days for the PCRA hearing, an extraordinary
request given the pressures on our court's
schedule at the time, which he graciously
granted.
I cleared my own schedule to give me a month
prior to the hearing to assemble exhibits, a trial
notebook, and concentrate on how to prove
ineffective assistance. My wife's frequent absence
on business trips at the time was a blessing, to
her and myself, as the case took over all the
tables in our house. I assembled the exhibits into
a PowerPoint presentation so I could hopefully
keep everyone on the same page while I crossexamined MD's prior lawyers. There were nearly
1000 pages of exhibits, not including the trial
transcripts. The first, and largest, was counsels'
file. I paginated it, gave it a table of contents,
and prepared an examination of it page by page
that would show they had been completely
derelict in their duties. The file was remarkable
for what it did not contain-no evidence of
communication with MD after the first interview,
no efforts to obtain evidence counsel knew, as
evidenced by notes in the file, they needed until
the Friday before the three day weekend after
which trial would begin (after counsel had missed
the first trial date) and lightly marked copies of
discovery received only a few weeks before trial.
Before the hearing, the prosecution agreed
that the post-conviction hearings and all of their
exhibits could be incorporated as evidence at
the PCRA hearing, avoiding hours of testimony
and making some use of the otherwise wasted
effort on the direct appeal. This allowed me to
concentrate on trial counsel. Along with brief
testimony from MD's daughters about their
attempts to get evidence to MD's lawyers and

For the Defense - Vol. 5, Issue 2

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