For the Defense - Vol. 6, Issue 2 - 40

constitutional right.30
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* 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.
directly on the commission of the crime. Ideally,
the expert will also have experience and training
as a nationally certified gambling counselor who
can independently assess the client's gambling
behavior using validated screening instruments
such as a DSM-based and a population prevalence
measure of problem severity, subtype the
individual by etiological risk factors, relate the
client's progression to gambling-related harms,
and provide realistic suggestions for treatment
planning both inside and outside of prison.
Such a comprehensive evaluation, supported by
evidence-based educational materials, is most
likely to inform the court and others about the
causal relationship between the defendant's
gambling problem and the criminal charges.
* 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.
* 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.
Conclusion
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* 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.
40 For The Defense l Vol. 6, Issue 2
NOTES:
1
2
HEXIDECIMAL
Interactive Map: Sports Betting in the U.S., American Gaming
Association (2021), https://www.americangaming.org/research/
state-gaming-map/.
#153A5B
#EAC137
Benjamin J. Morasco & Nancy M. Petry, Gambling Problems
and Health Functioning in Individuals Receiving Disability, 28
DISABILITY AND REHABILITATION, no. 10, 619-623 (2006).
3
David C.S. Richard et al., Legal and Financial Issues and
Disordered Gambling, THE WILEY-BLACKWELL HANDBOOK
OF DISORDERED GAMBLING 386-399 (David C. S. Richard, Alex
Blaszczynski and L. Nower eds., Wiley Blackwell 1st ed. 2013).
Many individuals with gambling addiction also
have comorbid addictions and mental health
problems. Such comorbidity may amplify the effects
of the gambling, heighten impulsive reactivity,
and/or decrease inhibitions which may have
imposed caution and reflection. In those cases, it is
advisable for a defendant to be evaluated by and
receive treatment from both a mental health or
substance abuse counselor as well as a gambling
counselor. Unless specially credentialed, only
those with certification in gambling treatment
are qualified to treat individuals with gambling
disorder, and their report should reference
and incorporate, where appropriate, collateral
comorbidity evaluations to further contextualize
the interplay of all the relevant factors in the
disorder that led to the crime.
File your client's motion after the
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.
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.
PANTONE
(2019).
5
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Ants Anderson et al., Familicide and Suicide in a Case of
Gambling Dependence, 22 THE JOURNAL OF FORENSIC
90/78/39/30
PSYCHIATRY & PSYCHOLOGY, no. 1, 156-168 (2011).
6
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS, AMERICAN PSYCHIATRIC ASSOCIATION (5th ed.
NOTES:
1
2013).
7
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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Filipa Calado and Mark D. Griffiths, Problem Gambling
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no. 4, 592-613 (2016).
8
NOTES:
1
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
MEDICINE, no. 9, 1351-1360 (2008).
9
John W. Welte et al., Gambling Participation in the U.S. - Results
from a National Survey, 18 JOURNAL OF GAMBLING STUDIES, no.
22/58/92
5
234/194/56
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
4, 313-337 (2002).
10
PROBLEM GAMBLING RESEARCH CENTRE (2012).
11
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).
Gambling generates billions of dollars in revenue
and taxes in the U.S. That money comes directly
from consumers and, disproportionately, from
problem gamblers.
who are educated in gambling addiction are in the
best position to identify those relationships and
to assist clients in obtaining the most appropriate
sentences and services.
* 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.
As gambling opportunities
Defense attorneys
continue to expand, there will likely be an increase
in gambling-related crimes.
* 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.
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
About the Author
Click here to view and/or print the
full notes section for this article.
Robert J. Williams et al., The Population Prevalence of Problem
Gambling: Methodological Influences, Standardized Rates,
Jurisdictional Differences, and Worldwide Trends, ONTARIO
Filipa Calado et al., Prevalence of Adolescent Problem
Gambling: A Systematic Review of Recent Research. 33 JOURNAL
OF GAMBLING STUDIES 397-424 (2017).
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).
HEXIDECIMAL
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#EAC137
About the Author
Click here to view and/or print the
full notes section for this article.
Lia Nower, J.D., Ph.D. is a Professor and Director of
the Center for Gambling Studies at Rutgers University.
A clinician who specializes in gambling disorder
and addictions, she is also Director of the Addiction
Counselor Training Certificate Program and a research
affiliate with the Sydney University Gambling Treatment
Unit in the Brain and Mind Centre. Dr. Nower's research
focuses on psychometric measurement, the etiology and
treatment of gambling and gaming disorder, internet
gambling and sports wagering, and gambling-related
policy issues.
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
She currently serves as Associate Editor for Addiction
and Regional Assistant Editor for International
Gambling Studies journals. Dr. Nower is a member of the
Board of Directors for the National Council on Problem
Gambling in Washington D.C., where she also chairs
the research committee and received the 2019 research
award. Dr. Nower has also co-authored several policy
initiatives, including a model for self-exclusion programs
and an industry framework for informed-choice and
responsible gambling.
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.
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
She co-edited the book, The Wiley-Blackwell Handbook
of Disordered Gambling (2013) and an upcoming
book on risk taking. Dr. Nower has served as an NIH
pre-doctoral fellow, a Fulbright fellow, and a research
intern at the National Research Council at the National
Academies.
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
CMYK
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Worldwide: An Update and Systematic Review of Empirical
Research (2000-2015), 5 JOURNAL OF BEHAVIORAL ADDICTIONS,
Ronald C. Kessler et al., DSM-IV Pathological Gambling in the
National Comorbidity Survey Replication. 38 PSYCHOLOGICAL
RGB
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).
RGB
9/22/91/0
Nicki A. Dowling et al., Problem Gambling and Family Violence:
Factors Associated With Family Violence Victimization and
Perpetration in Treatment-Seeking Gamblers, JOURNAL OF
INTERPERSONAL VIOLENCE, [Online First] 0886260519835877
4
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.
Vol. 4, Issue 4 l For The Defense 9
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021/src/139243_PACDL_Magazine_notes_Gambling.pdf https://www.americangaming.org/research/state-gaming-map/ https://www.americangaming.org/research/state-gaming-map/
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