For the Defense - Vol. 5, Issue 2 - 13

Discuss this waiver with your client with the same
seriousness
you would
discuss the environment:
waiver of any
4. Consider
your office/work
30
constitutional
right.
a. Offices
with multiple staff in proximity may

Using the strategy above, people both in and
outsideOverall,
my office
tremendous
successchange
with is
thehave
time had
to plan
for yet another
Rule 600
Oftentimes,
making
it plain
now.motions.
As we prepare
for thejust
eventual
shift
to returning
to
the
brick
and
mortar
offices
and
courts,
we must
to
the
Commonwealth
that
you
intend
to
seriously
have difficulty
maintaining
safe
distancing,
* Request discovery
early and
in writing.
That
way,
continue
to
all
share
the
responsibility
for
infection
consider rotating work at home assignments litigate this issue can get you results. It is only one
control and safety. Our only tool in that arsenal at this
if the Commonwealth fails to provide requested
to maintain adequate distance for staff and weapon
in isyour
arsenal,
butdistancing.
because a win means
point
effective
social
discovery, any
required
continuance
will
be
on
visiting clients.
discharge, it is a potent weapon that should never
the prosecution.
If youwith
have
to follow-up
with larger
the
Careful consideration of your own needs and
b. Coordinate
colleagues
to utilize
be overlooked.
Commonwealth
about
discovery
they have failed to
resources as well as collaboration with colleagues will
space for
meeting
clients.
be the key to finding support and solutions in these
hand over,
be sure to
memorialize
such requests
c. Consider
doing
initial consultations
andin
NOTES:
difficult times. As a group, criminal defense lawyers
a writing such
an email.
evenas
small
meetings in larger spaces, such
1
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22/58/92

as a conference room or rearranging your
If a continuance
is required
to thedistance
office to
allow for due
adequate
Commonwealth's
of diligence,
be sure to
betweenfailure
you and
your client/visitors.
put that
on
the
record
at
the
time
the
continuance
5. Protective Equipment: Please follow
CDC and
PA
Department
of
Health
Guidelines
is requested. Even if the judge does not ruleregarding
in
protective equipment. Masks and gloves are
your favor,
you have at least preserved the issue for
becoming commonplace and are required in
appeal. many environments. People have come to
expect them in public places and will likely
All motions
to dismiss pursuant to Rule 600 must be
find their31use comforting.
your client's motion after the
made ina. Establish
writing. File
a safety protocol in your office.
365-dayb. There
period has
elapsed.
If the trial judge rules
are likely mixed feelings of masks in
against you
and
subsequently
thesocial
Commonwealth
the
office,
mindful that
distancing is
causes another
substantial
period
of delay,
our only
tool, consider
masks
in thefile
office-
and
have
rules
set
up
consistent
with
CDC
a new Rule 600 motion based on this additional
and PA Department of Health guidelines for
time and litigate it prior to any trial to preserve an
where and when they are utilized and these
objection to
the additional
time
period.
requirements
can be
relaxed.
c. Create
a routineafter
for protective
gear
At the Rule
600 hearing,
the defense
has- As
part of the initial consultation, or a follow
made a prima facie showing that the defendant
up visit, consider inviting clients to come to
has not been
brought
to triala within
365prepared
days, for
meetings
wearing
mask and
the Commonwealth
bears
the
burden
of
proving
your office protocol.
that they
have nonetheless
acted
with diligence.
d. Have
a hand sanitizer
station
available for
prior
to the
meeting
for visitors.
This meansuse
that
after
defense
has made such
withitstaff
to Commonwealth
sanitize the meeting
a prima e. Arrange
facie showing,
is the
area
reception
as on
needed
after each
who should
be and
required
to put
its evidence
use.
and the defense should only argue after the
f. Reception
staff should
be trained
in your
Commonwealth
has done
so. Essentially,
a Rule
600
safety
protocol-around
welcoming,
hearing should proceed in form almost identically
addressing masks (have extras), hand
to a suppression hearing. If the judge asks you
sanitizing, and arranging space for
to argue prior
to thedistancing
Commonwealth's
evidence,
adequate
for visitors.
make 6. What
it clear that
you
could
not
possibly
argue
about Court?
on behalf
ofisyour
client
until
know
the
a. It
unclear
how
theyou
courts
willwhat
manage
social distancing.
a requirement
of
Commonwealth's
evidence It
ofisdiligence
is.
the Governor's order and will need to be
If the Commonwealth
addressed. appears at the Rule 600
hearing b. My
and does
not present any
that
recommendation
is toevidence
start these
conversations
nowinstance,
to ensurethey
all atdid
thenot
bar
it acted with
diligence-for
ofofficer
the court
can feeltosafe.
bring in the
to testify
the attempts made
c. Working
closely
your colleagues that
to find and
apprehend
thewith
defendant-argue
and court administration will be key
they have not met their burden because the burden
in addressing upcoming proceedings-
of proof includes
the burden of production and
whether everyone is appearing virtually or
argumentsinofperson.
counsel
are not
evidence. the space and
Focus
on managing
maintaining safe distances and protective
equipment.

234/194/56

are truly some
of the
most
problem solvers
Commonwealth
v. Mills,
162
A.3dresourceful
323 (Pa. 2017).
2
communicators
I have art.
ever1,encountered.
I have
U.S.and
ConSt
. Amend. VI; PA. CONST.
§ 9.
3
no doubt that
your efforts
will427,
be met
with1995).
success.
Commonwealth
v. DeBlase,
665 A.2d
431 (Pa.
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
NOTES:
raised separately).
1
5
This article
is not
meant to
advocate
a position concerning
Pa.R.Crim.P.
Rule
600(2)(a);
see
also Commonwealth
return
to
work,
etc.
Rather,
the
article
offered
encourage
v. Kearse, 890 A.2d 388, 395 (Pa. Super.isCt.
2005)to
(no
consideration
ofbe
theshown
varioustoconditions
and600
situations
involved
"prejudice"
need
obtain Rule
dismissal).
in a return to work. Federal and Commonwealth authorities
While Rule 600 has a more definitive time period, the sole
will determine when it is safe to return to work, and ultimately
focus
ofone
Rule
ondetermine
the actionthe
of timeline
the Commonwealth.
each
of600
youiswill
of your safe and
Thus,
a constitutional
argument
comfortable
return to
the office.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).
HEXIDECIMAL

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About the Author

Dr. Thomas Haworth is a
About the Author
Pennsylvania and New Jersey
licensed psychologist and an
expert Ernst
witnessisspecializing
in
Katherine
an
Forensic and Clinical Psychology.
appellate attorney with the
He has been admitted as an
Montgomery
County
Public
expert witness
in multiple
Defender's
Office.courts
She and federal
Pennsylvania
courts.
He is from
a priorall
member
handles
appeals
of the Pennsylvania Sexual Offender Assessment Board
units, juvenile to homicide,
and was at the Joseph J. Peters Institute for 15 years. In
and she
also formulates
addition to his expertise
in matters
related to all aspects
legal strategy
for pre-trial
of sexual violence, including
Internet-related
sexual
crimes,
in
his
private
practice
he
has
provided
forensic
and trial units. Katherine graduated Magna Cum
evaluation
and
expert
consultation
in
a
wide
range
of
Laude from Loyola Law School, New Orleans
matters across the forensic psychological spectrum of
in 2007
andDr.
was
on lawisreview.
She
practiced
services.
Haworth
a faculty
member
at Rutgers
at Kaufman,
& Ress in Philadelphia
out
University Coren
in the Department
of Psychology,
where he
has
taught
for
the
past
20
years.
He
also
served
of law school, and thereafter did work in the on the
faculty ofof
University
of Pennsylvania
Graduate
intersection
horseracing
law and §1983
for aSchool,
and Medical College of Pennsylvania. He regularly
number of years before following her passion
presents at national conferences in the areas of forensic
for indigent
criminal
defense.
and clinical
psychology.

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