For the Defense - Vol. 5, Issue 2 - 45

help their father, thwarted by the lawyers'
apparent lack of interest, the bulk of the two
days were consumed by the lawyers' testimony.
Unfortunately, time did not allow for testimony
of the single Commonwealth witness, the
prosecutor who tried the case. Judge Baldi's
schedule did not allow that to occur until four
months later.
As I almost always do, I asked for an
opportunity to brief the matter. Judge Baldi
agreed and directed us to prepare proposed
findings of fact. I submitted a ninety or so page
brief with more than one hundred proposed
findings, several with multiple citations to
the record of the 2015 and 2012 hearings, as
well as the trial. I argued two standards for
granting a new trial. On the language issue, I
argued that the failure to provide an interpreter
deprived MD of his right to be present at trial,
prior caselaw in Pennsylvania and elsewhere. I
deliberately avoided arguing United States v.
Cronic5 because Cronic arguments rarely succeed,
as courts frequently interpret it to require proof
of the equivalent of the absence of counsel, an
extremely high standard to meet. I thought the
language of prior interpreter cases accomplished
the same goal without mentioning Cronic, and
their doctrines had been applied in ineffective
assistance claims, albeit not in any recent decade.
As for counsels' other (in)action, I argued their
complete lack of preparation met the standard
in Strickland v. Washington, a reasonable
probability that counsel's objectively insufficient
representation affected the outcome. The
Commonwealth's brief conceded no issues.
In the spring of 2016, Judge Baldi vacated the
conviction and awarded a new trial. He adopted
many of my proposed findings of fact, but none
of my proposed conclusions of law. Rather than
rule that any one of the derelictions I cited-
variations of lack of preparation, failure to
obtain an interpreter, and failure to use available
evidence in MD's defense-required a new trial,
he found that the cumulative effect of counsels'
lack of preparation and strategy deprived MD
counsel of effective assistance of counsel and
required a new trial. He wrote, "The decision
to grant a new trial was not made lightly. Quite
frankly, the system failed both the [complainant
and MD]. In 33 years of practice before the
[b]ar, and 6 years of experience as a [j]udge, I
have never seen a case as rife with ineffective
assistance of counsel [] as this one."

The Commonwealth appealed, submitting a
brief to the Superior Court that exceeded word
limits by nearly 50%. Its brief largely ignored
Judge Baldi's factual findings except to argue
they were wrong. (In Pennsylvania, appellant's
briefs do not have to recount a version of the
facts that favor the verdict winner- they can pick
and choose from the record disregarding the trial
court's or jury's finding, though I always believe
they do so with peril to their credibility.) As a
result, my brief was almost as long.
Pennsylvania's appellate courts do not permit
oral argument in PCRA appeals. When an
important case can only be submitted, I miss
the opportunity to connect with the judges,
and answer any concerns they have about my
case. That emotion was heightened in this case
because a decision did not follow for thirteen
months after the case was submitted to the
panel. In a short opinion, as contrasted to Judge
Baldi's forty-page opinion-Judge Dubow and
another panel member affirmed Judge Baldi on
the basis of the denial of an interpreter. Counsel's
failure to secure an interpreter for trial was
ineffectiveness per se under Cronic-no proof of
prejudice was required. I made that argument,
without ever citing Cronic out of fear its citation
in a brief was new-trial repellant. Judge Dubow,
refreshingly, had no such preconceptions.
She accepted MD's argument that without an
interpreter he was not present for the first day
of trial, could not communicate with counsel and
thus he did not have to prove any prejudice. The
third panel member published a lengthy dissent,
adopting virtually all of the Commonwealth's
arguments. This became the basis for an allocator
petition, which was granted.
The Commonwealth's Supreme Court brief
bumped against the appellate rules' word limits,
a great deal of it relitigating the facts. As a result,
in a similarly long brief, I had to repeat all the
findings of fact found by Judge Baldi as well
as point out why the record supported him not
finding facts the Commonwealth claimed existed.
I had two other problems though. First, I still did
not like the Cronic argument because it is rarely
upheld. I called local appellate experts like Peter
Goldberger and Jules Epstein who talked the
matter through with me. I also called lawyers
at boutique United Supreme Court practices
in Washington, and hearing that I was court
appointed, some prominent names shared their
thoughts with me. Opinion on whether to stick
Vol. 5, Issue 2 l For The Defense 45
For the Defense - Vol. 5, Issue 2

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