For the Defense - Vol. 6 Issue 3 - 27

* 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.
NOTES:
1
Ct. 229 (2020) (No. 18-1259).
2
[https://perma.cc/P5GX-BXDH].
3
papers.cfm?abstract_id=3728752.
4
quotation marks omitted).
6
Graham v. Florida, 560 U.S. 48, 74 (2010).
5 Miller v. Alabama, 567 U.S. 460, 473 & 465 (2012) (internal
Vinter v. United Kingdom, App. Nos. 66069/09, 130/10, and
3896/10 (July 9, 2013), https://echr.coe.int/documents/reports_
* 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.
recueil_2013-iii.pdf [https://perma.cc/8DDS-HA6Z].
7
2014).
8
Graham, 560 U. S. at 70.
9 Jones v. Mississippi, 141 S. Ct. 1307, 1315 (2021) (quoting Roper
v. Simmons, 543 U.S. 551, 573 (2005)).
10
Id. at 1311.
11 Id. at 1315-16.
12
Id. at 1319. ( " But if the sentencer has discretion to consider
the defendant's youth, the sentencer necessarily will consider
the defendant's youth, especially if defense counsel advances an
argument based on the defendant's youth. " ).
13
211 (2016).
15
Jones, 141 S. Ct. at 1328, 1336-37 (Sotomayor, J., dissenting).
14 Id. at 1311 (quoting Montgomery v. Louisiana, 577 U.S. 190,
Montgomery, 577 U.S. at 211.
16 Id. at 209.
17 Miller, 567 U.S. at 472-73 (quoting Graham, 560 U.S. at 72-73)
(internal quotation marks omitted).
18
(internal quotation marks omitted).
19
20 Id. at 198.
21 Id. at 208.
Id. at 209 ( " Miller did bar life without parole, however, for
all but the rarest of juvenile offenders, those whose crimes
reflect permanent incorrigibility For that reason, Miller is no less
Jones, 141 S. Ct. at n. 4; See also id. at 1336-37 (Sotomayor, J.,
dissenting).
24
Id. at 1327 (Thomas, J., dissenting) ( " The majority, however,
selects a third way: Overrule Montgomery in substance but not in
name. " )
25
Id. at 1323.
26 Id.
27 Id. at 1334 (Sotomayor, J., dissenting) (quoting Commonwealth
v. Batts, 640 Pa. 401, 440 (2017)).
28
Id.
See, e.g., Meghan J. Ryan, Taking Dignity Seriously: Excavating
the Backdrop of the Eighth Amendment, 2016 U. ILL. L. REV.
2129, 2140-42 (noting that the Court has described human
29
63 Pierce Street
Kingston, PA 18704
Office: 570-763-0006
Fax: 570-288-0243
pgelso@gelsolaw.com
www.gelsolaw.com
Serving clients of Northeastern
Pennsylvania for over 20 years.
Vol. 6, Issue 3 l For The Defense 27
22
Montgomery, 577 U.S. at 208 (quoting Miller, 567 U.S. at 480)
Id. (quoting Miller, 567 U.S. at 479-80).
PHILIP GELSO
ATTORNEY AT LAW
The United States has committed to the rehabilitative ideal
of criminal punishment, as a general principle, through the
international human rights instruments that it has signed and
ratified. Specifically, the United States has signed and ratified the
International Covenant on Civil and Political Rights (ICCPR), which
has been interpreted to require more than just a theoretical
possibility of review and release for those serving life sentences.
The International Covenant on Civil and Political Rights, Mar.
23, 1976, 999 U.N.T.S. 171; Blessington v. Australia, U.N. Doc.
CCPR/C/112/D/1968/2010, ¶¶ ¶ 7.7, 7.8 (Hum. Rts. Comm. Nov. 3,
About the Author
full notes section for this article.
See, e.g., Roper, 543 U.S. at 575-76.
Petition for a Writ of Certiorari at i, Jones v. Mississippi, 141 S.
Nina Totenberg, Supreme Court Examines when Juveniles May
Be Sentenced to Life Without Parole, NPR (Nov. 3, 2020, 5:13 PM)
(internal quotation marks omitted), https://www.npr.org/
2020/11/03/930892945/supreme-court-examines-when-juvenilesmay-be-sentenced-to-life-without-parole?t=1604835753796
Terrel
Carter, Rachel López & Kempis Ghani, Redeeming
Justice, 116 NW. U. L. REV. (forthcoming 2021). A current draft
of Redeeming Justice is available at https://papers.ssrn.com/sol3/
About the Author
dignity as " the touchstone of the Amendment's prohibition " ).
30
31 Tarika Daftary-Kapur & Tina Zottoli, Montclair State Univ.,
Resentencing Of Juvenile lifeRs: the PhiladelPhia exPeRience 10 (2020),
https://digitalcommons.montclair.edu/justice-studies-facpubs/84/.
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.
the Pennsylvania Sentencing Commission, as an
appointee of Governor Tom Wolf.
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Vol. 4, Issue 4 l For The Defense 9
Rachel Lopez is an Associate
Professor of Law at Drexel
University, Kline School of
Law and a Fellow at the
Carr Center for Human
Rights Policy at the Harvard
Kennedy School. She
also directs the Andy and
Gwen Stern Community
Lawyering Clinic. From
2015 to 2019, she served
as a Commissioner on
substantive than are Roper and Graham. " )
23
https://digitalcommons.montclair.edu/justice-studies-facpubs/84/ https://www.npr.org/2020/11/03/930892945/supreme-court-examines-when-juveniles-may-be-sentenced-to-life-without-parole?t=1604835753796 https://perma.cc/P5GX-BXDH https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3728752 https://echr.coe.int/documents/reports_recueil_2013-iii.pdf https://echr.coe.int/documents/reports_recueil_2013-iii.pdf https://perma.cc/8DDS-HA6Z http://www.gelsolaw.com
For the Defense - Vol. 6 Issue 3

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