For the Defense - Vol. 8, Issue 3 - 9

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
is one of dramatic decline; the vast majority of defendants
plead guilty and very few go to trial.50
Furthermore, Fed. R.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Crim. P. 14 requires severance when there is " a serious risk that
a joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence. " 51
* 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.
a classic example of unfairness requiring severance.52
* 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.
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many recent, complex federal cases have found severance
appropriate to protect defendants.53
* 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.
Spillover prejudice is
And
28
The benefits of a joint trial can also be preserved by using
another option: trial courts can empanel two juries, to whom
the same trial of proof will be presented, with the exception
of the confession, and who are instructed to deliberate
separately on the guilt or innocence of the confessing and
nonconfessing defendants.54
Dual juries were recently used
With the
in a New York State case when defense counsel argued
that, while most of the evidence against each codefendant
overlapped, the codefendants' defenses were antagonistic to
each other and should be heard by separate juries.55
newest formulation of the Bruton test in Samia, it will be more
challenging for defense counsel to persuade district judges
that fairness requires either severance or dual juries.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
* 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.
* 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.
The authors of this article, along with co-counsel, filed an amicus brief
in support of the petitioner in Samia v. United States, 599 U.S. ----, 143 S.
Ct. 2004 (2023), on behalf of the New York Council of Defense Lawyers
( " NYCDL " ). The views expressed in this article are the authors' own views
and are not offered on behalf of NYCDL.
2
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Bruton v. United States, 391 U.S. 123 (1968).
3 Id. at 135.
4 Id. at 135-36.
7 Id. at 208.
5 Richardson v. Marsh, 481 U.S. 200 (1987).
6 Id. at 203.
8 Id. at 208-09.
9 Id. at 208.
12 Id. at 193.
10 Gray v. Maryland, 523 U.S. 185 (1998).
11 Id. at 188.
13 Samia v. United States, 599 U.S. ----, 143 S. Ct. 2004 (2023).
14 Id. at 2011.
* 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.
15 Id. at 2017-18.
16 Id. at 2010.
17 Id.
18 Id. at 2011.
19 See id. ( " Q. Did [Stillwell] say where [the victim] was when she was
killed? A. Yes. He described a time when the other person he was with
pulled the trigger on that woman in a van that he and Mr. Stillwell was
driving. " ) (alterations and emphasis in original).
20
Id.
21 Id.
22 Id.
What can defense counsel do? Notwithstanding Samia,
defense counsel should still push for more extensive redactions
of codefendant confessions. After all, there may be some
trial judges that recognize the unfairness of Samia and are
prepared to give the decision a narrow construction. Favorable
evidentiary rulings by the trial court are not reviewable
on appeal if they result in a defense verdict. In addition,
nothing prevents state court judges from construing the
state-constitutional equivalents of the Confrontation Clause
in a more rights-protective manner in order to prevent the
" accusatory finger " from being pointed at the defendant by
an out-of-court statement made by a codefendant declarant
who cannot be cross-examined.56
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
File your client's motion after the Id. (emphasis in original).
38
4
39 Id. at 2027.
40 Id.
23 Id.
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.
24 Id. (alteration in original).
25 Id. (alteration in original).
26 Id. at 2011-12 (alteration in original).
27 Id. at 2012.
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discriminating in its use. " ).
29
Id. at 2013.
4
NOTES:
1
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
30 Id. at 2014.
31 Id.
32 Id.
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
36 Id. at 2025 (Jackson, J., dissenting).
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
35 Id. at 2021 (Kagan, J., dissenting).
33 Id. at 2017.
34 Id.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
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).
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
37 Id. at 2026.
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).
43 Id. at 2023.
41 Id. at 2022-23 (Kagan, J., dissenting).
42 Id.
* 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 Authors
About the Author
Click here to view and/or print the
full notes section for this article.
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
Click here to view and/or print the
full notes section for this article.
* 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.
joining the firm, Mr. Sandick served as an Assistant U.S. Attorney in
the Criminal Division of the U.S. Attorney's Office for the Southern
District of New York. Mr. Sandick is a frequent commentator on
high-profile white collar cases and often presents and writes on
white collar, appellate, sentencing, and financial fraud. He received
his B.A. from the University of Pennsylvania and his J.D. from
Harvard Law School.
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
Share this article
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
Vol. 8, Issue 3 l For The Defense 9
Vol 4 Issue 4 l For The Defense 9
Vol. 4, Issue 4 l For The Defense 9
Nicole Scully is an Associate in
Patterson Belknap's Litigation
Department. Previously, Ms. Scully
served as a law clerk to the Hon.
Vera M. Scanlon of the United States
District Court for the Eastern District
of New York. Ms. Scully received
her B.A. from Fordham College at
Rose Hill and her M.A. in Ethics and
Society from the Fordham Graduate
School of Arts and Sciences. She
earned her J.D. from Duke University
School of Law, where she received
a Certificate in Public Interest and Public Service Law and served as
Executive Articles Editor for the Alaska Law Review.
Harry Sandick is a Partner in
Patterson Belknap's Litigation
department and a member of the
firm's White Collar Defense and
Investigations team. Mr. Sandick
focuses his practice on white
collar criminal defense, internal
investigations, securities fraud
litigation, and civil and criminal
appellate litigation. He also serves as
Editor-in-Chief to the firm's Second
Circuit Criminal Law Blog. Prior to
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
Id. at 2012-13; see also id. at 2018-20 (Justice Barrett, concurring in
part and concurring in the judgment, but disagreeing with the majority's
historical evidence as irrelevant or too recent in history to " inform the
meaning of the Confrontation Clause 'at the time of the founding' " )
( " While history is often important and sometimes dispositive, we should be
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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https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue3_2023/src/docs/Samia_Case__The_Bruton_Problem_Sandick_Author_Notes.pdf https://www.pbwt.com/ https://www.pbwt.com/second-circuit-blog https://www.pbwt.com/second-circuit-blog https://www.pbwt.com/

For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3

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For the Defense - Vol. 8, Issue 3 - Contents
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