For the Defense - Vol. 6, Issue 4 - 36

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
herself whenever the judge's impartiality might
reasonably be questioned, regardless of whether
any of the specific provisions of paragraphs (A)(1)
through (6) apply.10
* 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.
judge in a criminal proceeding was denied.12
* 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.
A judge's obligation not to
hear or decide matters in which disqualification is
required applies regardless of whether a motion to
disqualify is filed.11
Recently, the Pennsylvania Superior Court
its motion to
recuse
reviewed an interlocutory appeal by the
Commonwealth after
a
The
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
motion to disqualify the judge was based on the
Commonwealth's argument that there was " an
appearance of impropriety " because the judge's
domestic partner was a former employee of
the Philadelphia District Attorney's Office who
brought charges of racial discrimination after she
was dismissed. The judge addressed the issues and
ultimately denied the Commonwealth's recusal
motion. On appeal, the Superior Court clarified
the standard for recusal and the burden of proof a
movant had in succeeding on such a motion.
The moving party is required to produce evidence
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.
36 For The Defense l Vol. 6, Issue 4
that establishes bias, prejudice or unfairness and
raises a substantial doubt as to the judge's ability
to preside impartially. The judge must consider the
recusal motion and undertake a two-factor analysis.
First, the judge must determine whether they can
adjudicate in an impartial manner, free of personal
bias or interest in the outcome. Second, the judge
must consider whether his or her involvement in
the case creates an appearance of impropriety. In
clarifying this two-factor analysis, the Superior
Court noted that its prior caselaw has held that a
judge's behavior is not required to rise to a level
of actual prejudice. Rather, the appearance of
impropriety is sufficient. That test for appearance
of impropriety is when a " significant minority
of the lay community could reasonably question
the court's impartiality. " This is the common law,
Significant Minority standard developed through
the cases discussed herein. Comment 2 to Rule 2.7
of the Code of Judicial Conduct states the standard
for recusal as " whether the prevailing facts and
circumstances could engender a substantial
question in reasonable minds as to whether
disqualification nonetheless should be required. "
The Superior Court reconciled the two standards
for recusal and noted that the different standards
are simply a distinction without a difference,
because both tests assert a reasonable person
standard, which is " whether a reasonable person
would question the impartiality of the judge in
light of the circumstances that gave rise to the
recusal motion. "
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.
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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).
NOTES:
1
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Federal disqualification statutes are outlined in 28 U.S.C. §§ 144
and 455.
2
L. Ed. 749 (1927).
3
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
942 (1955).
4
1582, 89 L. Ed. 2d 823 (1986).
5
489 A.2d 1291 (Pa. 1985).
7
Ed. 2d 132 (2016).
9
12
2252, 2257, 173 L. Ed. 2d 1208 (2009).
8
About the Author
Click here to view and/or print the
10 Comment 1 following Pa. C.J.C. Rule 2.11.
11 Comment 2 following Pa. C.J.C. Rule 2.11.
full notes section for this article.
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.
Share this article
Jaskirat K. Chhatwal practices
within the White Collar
Defense, Commercial Litigation,
and Healthcare Litigation and
Mitigation groups at Saxton &
Stump. Kira works closely with
the White Collar Defense team
to counsel institutional and
individual clients in all aspects
of criminal and administrative
investigations. Kira is active in the legal community
as a speaker for PACDL and as an executive member
of the Diversity Committee and Strategic Planning
Committee for the Lancaster Bar Association. She is
also a member of the Junior League of Lancaster and
an appointee to the Lancaster City Human Relations
Council. Kira earned her J.D. from the Dickinson School
of Law of the Pennsylvania State University.
Commonwealth v. Dip, 221 A.3d 201 (Pa. Super. 2019), appeal
denied, 229 A.3d 567 (Pa. 2020).
Tumey v. State of Ohio, 273 U.S. 510, 531, 47 S. Ct. 437, 444, 71
In re Murchison, 349 U.S. 133, 138, 75 S. Ct. 623, 626, 99 L. Ed.
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 815, 106 S. Ct. 1580,
Commonwealth v. Darush, 459 A.2d 727 (Pa. 1983).
6 Reilly v. Southeastern Pennsylvania Transportation Authority,
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 873, 129 S. Ct.
Williams v. Pennsylvania, 579 U.S. 1, 136 S. Ct. 1899, 1903, 195 L.
Pa. C.J.C. Rule 2.11. Compare ABA Model Rule 2.11.
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At the end of the day, a decision to make a
motion to recuse a judge is one that has heavy
considerations, especially because the judge you
are seeking to disqualify will be reviewing and
ruling on the merits of the motion. Litigants in
the Commonwealth of Pennsylvania have a right
to equal and fair treatment by the judges before
whom they appear. The provisions of Rules 2.7 and
2.11 of the Code of Judicial Conduct are designed
to ensure that a judge who presides at a trial or
other proceeding will be free of considerations
that may affect a judge's ability to be impartial
and to uphold public confidence in the integrity of
our judiciary.
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