For the Defense - Vol. 6, Issue 4 - 20

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.
to his commission of the instant offense. In this way the
evaluation becomes a proxy for the defense attorney's
arguments. Instead of the defense attorney suggesting
the alternatives, the mental health expert, a qualified
professional, describes the issues that led to the criminal
behavior, how these conclusions were reached through
testing and that the client will benefit from treatment,
medication, and lifestyle changes.
The evaluation can also address the risk of recidivism and
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
the types of treatment or lifestyle changes that can lower
that risk. The evaluation can give the judge the incentive
to consider alternative sanctions such as substance abuse
treatment, counseling, medication, and the ability to secure
employment to pay restitution. Sentencing mitigation
must answer these questions: how did this happen and
how can the Judge be sure it won't happen again?
Putting together the social history in an effective piece of
advocacy is critical. A sentencing mitigation specialist can
put together this history using interviews and documents.
If you are doing this on your own, the easiest approach is
by letter or memo to the Court that provides the client's
history chronologically. However, if there is a probation
officer writing a pre-sentence report, don't overlook the
possibility of providing this information at that stage with
the hopes that it will be included in the report.
File your client's motion after the
* 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.
* 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.
20 For The Defense l Vol. 6, Issue 4
Vol. 4, Issue 4 l For The Defense 9
Judges love verification! Statements or letters to the
judge from family, medical records, treatment records,
employment verification all support and validate the
arguments for mitigation. While recognizing attorney's
time limitations, it is important to gather letters from
those who know the client best. Most often, a family
member gathers the letters. Letters should identify the
letter writer, describe the writer's relationship with the
defendant, and inform the judge that the writer is well
acquainted with the facts of the offense. The letters can
provide proof of remorse and attempts at rehabilitation.
The letters can also provide evidentiary support for
the mitigating issues. Try to obtain letters from family
members and credible people who can attest to the client's
excellent employment history, community service or role
as a mother, father, son, daughter, aunt, or uncle. Counsel
should seek written corroboration from those who can
verify incidents of childhood abuse, substance abuse, or
a history of mental health problems. It is recommended
that the writer note that he/she is acquainted with the
nature of the charges, as the same adds credibility to the
letter and despite the client's criminal conduct, the writer
is still willing to submit a letter on the defendant's behalf.
Present a credible plan. The goal is to determine what
the issues are that led to the commission of the offense,
and exactly what type of treatment, medication, family,
and community support could be a game-changer for this
person. Often clients are self-medicating with alcohol or
drugs to soothe an undiagnosed mental illness such as
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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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
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Bi-Polar Disorder. Most have never been evaluated and
proper medication could allow their brain to focus, slow
down, and react differently. They could depend less on
alcohol and marijuana to achieve this calmness or balance.
Cases move through the system quickly and attorneys
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).
5
While defense attorneys will not have the time and
About the Author
Click here to view and/or print the
full notes section for this article.
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About the Author
resources to gather all this information in every case,
just knowing the steps to effective mitigation will help
their client even if the system does not yet recognize this
necessity. While recognizing that " meet em and plead
em " will likely remain a frequent practice, achieving even
some of these goals for mitigation will still help the judge
understand more about your client which may result in
a lower sentence that includes relevant treatment rather
than lengthy incarceration. It also shows the client that
someone cares. Sometimes, just helping the client find the
right resources can make a major difference in their path
forward.
See Steven Zeidman, Symposium: Eradicating Assembly-Line Justice:
An Opportunity Lost by the Revised American Bar Association Criminal
Justice Standards, 46 HOFSTRA L. REV. 293 (2018).
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
are overwhelmed with too many clients and not enough
time to meet short deadlines. However minimal the time
and effort permitted, making the most of it to provide
the court with a modicum of understanding and seeing
your client can make a difference. Sometimes, all we can
do for our clients is to be the one person in the system
who wants to know them for who they are and who cares
about them. This can mean a lot to your client. It can also
mean a lot to the sentencing judge. I have often seen
judges persuaded by the defense attorney's compassion
for their client and passion for a result that is more than
a cookie-cutter, rubber-stamp, but provides the possibility
of a positive path forward.
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.
Share this article
Tess Lopez is a federal
sentencing expert. She has
decades of experience in
federal sentencing, giving
her an unmatched and
nuanced understanding of
18 U.S.C. 3553(a), the statute
that governs sentencing
proceedings. She helps
attorneys create detailed
strategies to highlight pertinent mitigating issues,
assuring their clients receive the lowest possible
sentences. She has been assisting federal defense
counsel nationally for the past 16 years.
https://www.sentencingmitigation.com/work-with-tess/

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
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