For the Defense - Vol. 7, Issue 1 - 7

is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
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.
Theory in Practice
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.
increase the probability of recidivism because " the
susceptibility of the juvenile brain to peer influences
that makes rehabilitation so effective may backfire
when the youth is placed in a negative environment,
such as the adult prison system. " 38
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
neurological research and age-crime curve shows
that youths aged eighteen to twenty-five are likely to
be rehabilitated back to a crime-free life, focusing on
treatment instead of punishment has the potential
to benefit the offender and society in general to give
youth a chance to redeem themselves by becoming
productive adults.
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.
File your client's motion after the
Since the
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
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
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
It is our role as defense attorneys to fight against
the status quo. Although legally youth aged over
eighteen are considered adults in the criminal
system, there are many ways for criminal defense
attorneys to use the growing scientific research to
advocate for mitigation on behalf of our eighteen to
twenty-five-year-old clients. From the time of arrest
to the conclusion of the case, defense attorneys
should be labeling their clients as " youths " or " kids "
to emphasize that the client has reduced culpability.
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.
This research is especially useful during sentencing.
Last month, I was able to use this advocacy strategy
during a sentencing hearing for a twenty-yearold
client who was being sentenced on four cases
carrying the potential for significant state prison
time. With the help of a social worker, I was able
to tell the full story of my client's life thus far, not
just the latest chapter, and explained how his social
environment affected his ongoing development. I
took apart my client's cases one by one, explaining
to the judge how each of the crimes were a product
of his underdeveloped prefrontal cortex. Each crime
showed his lack of ability to understand long-term
consequences and his reliance on impulsive, instinctive
behaviors and susceptibility to peer pressure. I
then focused on how the second he was sent to a
juvenile detention center, a negative environment,
his behavior worsened. He began spending time
with bad influences, missing school, and having a
strained relationship with his family. I argued that
this demonstrated further imprisonment would only
negatively affect his rehabilitative prospects and
deprive him of a chance to become a reformed adult.
I pointed out how each time members of the system
had focused on treatment and redirection for my
client's impulsive reactions, he was receptive, and his
behavior improved.
Using the age-crime curve research, I argued that
all of this showed he would be in the majority by
desisting from criminal behavior if provided with the
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Vol. 7, Issue 1 l For The Defense 7
Vol. 4, Issue 4 l For The Defense 9
* 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.
4
5
NOTES:
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
3 543 U.S. 551 (2005). Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
2 Id. at 574.
NOTES:
1
3
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About the Author
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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).
92 WASH. U.L. REV. 1393, 1412 (2015).
4
* 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.
About the Author
Click here to view and/or print the
juvenile-justice-policies-vermont.
6
five.
7
history of juvenile court laws).
8
9
Graham, 560 U.S. at 88 (Roberts, C.J., concurring)).
10
543 U.S. 551 (2005).
11 560 U.S. 48 (2010).
Share this article
Id.; Governor Signs Law Creating More Rational Juvenile Justice Policies
full notes section for this article.
raise-the-age-vermont-missouri-state-legislation.
5
in Vermont, Dep't For chilD. & Fams.: DCF Blog (June 1, 2016), https://
dcf.vermont.gov/dcf-blog/governor-signs-law-creating-more-rationalIn
this Note, " youth " refers to individuals aged eighteen to twentySee
In re Gault, 387 U.S. 1, 14-18 (1967) (describing the rehabilitative
See Roper, 543 U.S. at 526.
About the Author
Vol. 4, Issue 4 l For The Defense 9
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.
Tirza Kyes is a trial attorney
at the Allegheny County
Public Defender's Office in
Pittsburgh, Pennsylvania. She
earned a Bachelor's degree in
Criminology at the Pennsylvania
State University and a Juris
Doctorate at the University of
Michigan Law School.
Although there is some debate on the exact age, most research
indicates that the brain continues to develop into the mid-twenties up
to age twenty-five. Mariam Arain et al., Maturation of the Adolescent
Brain, Neuropsychiatric Disease & treatmeNt 449, 449-61 (2013). See Jeffrey
Jensen Arnett, Emerging Adulthood: A Theory of Development from the
Late Teens Through the Twenties, 55 AM. psychologist 469 (2000); David
Pimentel, The Widening Maturity Gap: Trying and Punishing Juveniles As
Adults in an Era of Extended Adolescence, 46 TEX. TECH L. REV. 71, 73
(2013); Kevin J. Holt, The Inbetweeners: Standardizing Juvenileness and
Recognizing Emerging Adulthood for Sentencing Purposes After Miller,
right reintegration tools. This was an opportunity for
this broken system to remold a twenty-year-old and
focus on his rehabilitation, rather than punishment.
This advocacy strategy saved my client from state
prison. This was just one small step in the direction
of institutional change-I hope that this is just the
beginning and that it continues with you.
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
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John Kelly, In Another Big Year for " Raise the Age " Laws, One State
Now Considers All Teens as Juveniles, chroN. soc. chaNge (June 25, 2018),
https://chronicleofsocialchange.org/youth-services-insider/juvenile-justiceKatherine
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.
Martin Guggenheim, Graham v. Florida and A Juvenile's Right to
Age-Appropriate Sentencing, 47 HARV. L. REV. 457, 499 (2012) (quoting
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022/src/PACDL_Magazine_notes_Eighteen_is_not_a_magic_number.final.pdf https://chronicleofsocialchange.org/youth-services-insider/juvenile-justiceraise-the-age-vermont-missouri-state-legislation https://chronicleofsocialchange.org/youth-services-insider/juvenile-justiceraise-the-age-vermont-missouri-state-legislation https://dcf.vermont.gov/dcf-blog/governor-signs-law-creating-more-rational-juvenile-justice-policies-vermont https://dcf.vermont.gov/dcf-blog/governor-signs-law-creating-more-rational-juvenile-justice-policies-vermont https://dcf.vermont.gov/dcf-blog/governor-signs-law-creating-more-rational-juvenile-justice-policies-vermont
For the Defense - Vol. 7, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 1
