For the Defense - Vol. 6, Issue 2 - 22

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
that a conviction at any cost was more important than the
truth. That was certainly true of Philadelphia homicide
trials
from the 1980s on. Until recently, the district
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
attorney's office called virtually every homicide trial as a
death penalty case. DAs Abraham, Castille, and Williams
responded to a rising murder rate by pursuing death with
a biblical vengeance. As a result, over a quarter of all the
residents currently on death row are from Philadelphia.
Mr. Bookman paints a picture of his experience in
Philadelphia dealing with a blood thirsty homicide trial
program where incompetent counsel were, willing or
not, handmaidens to this death machine; where judges
were, for the most part, indifferent to justice; and, where
prosecutors and police joined together in a system that
valued convictions above all else.
One of the essays in this marvelous book is about the
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
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Terrance Williams case. I know something about that
case because I represented a co-defendant. Williams
killed a man named Norwood who he claimed had
been sexually abusing him. It was a horrible murder
and Williams got the death penalty. Years later, on a
post-conviction hearing it was established that, in fact,
Norwood had been abusing Williams for years. Even
worse, the Commonwealth knew this, had evidence of
this sordid fact, and withheld that evidence. PCRA relief
was granted, the death penalty was vacated, and the
Commonwealth appealed. The Supreme Court reversed
and reinstated the death penalty. Among the justices
voting to reverse was Justice Castille who, as the District
Attorney, had personally authorized seeking the death
penalty. Neither he nor his fellow justices recognized
the conflict of interest. The United States Supreme Court
begged to differ and reinstated the PCRA relief.2
File your client's motion after the
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
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22 For The Defense l Vol. 6, Issue 2
" Smoke, " an essay named after one of Mr. Bookman's
clients, was a case in which Mr. Bookman's investigation
established that his client was not the shooter. Smoke
was lucky, he had very good lawyers who did their jobs.
The problem was that " Smoke " thought his lawyers were
terrible. He questioned and criticized their every move.
He did not express gratitude when his lawyers won his
freedom. Representing " Smoke " was exhausting and
frustrating. So why do it? Why persist when the client
is worse than miserable and ungrateful? Mr. Bookman
shows us why: this is what we do as criminal defense
lawyers. We are not in it for the glory, the money, or the
thanks - there is little of any of that in our practices. We
are in it to stand up for the despised, the disenfranchised,
and the downtrodden. We are proud to stand between
the government power and the individual. A Descending
Spiral is a must-read for all who care about equal justice
and who hope that one day it will be more than an
aspiration.
5
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
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NOTES:
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2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
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).
About the Author
Click here to view and/or print the
full notes section for this article.
See J.R. Acker & C.S. Lanier, ParsiNg this LexicoN of death:
NOTES:
1
aggravatiNg factors iN caPitaL seNteNciNg statUtes, 30 Criminal Law
Bulletin Volume no. 2, 107 (March-April 1994).
2
After remand from the Supreme Court the Commonwealth,
under new District Attorney Larry /Krasner declined to seek the
death penalty and Mr. Williams has been moved from death row
to general population.
About the Author
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
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Vol. 4, Issue 4 l For The Defense 9
Barnaby Wittels is the
managing partner
at Wittels Law PC in
Philadelphia. He has
practiced criminal law for
forty-five years. He is a
fellow of the American
Board of Criminal Lawyers
and a member of the
editorial board of this
magazine.
For the Defense - Vol. 6, Issue 2

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