For the Defense - Vol. 6, Issue 1 - 15

Discuss
this waiver with your client with the same
NOTES:
seriousness
you would discuss the waiver of any
1
Imbler v. Pachtman, 424 U.S. 409, 429 (1976).
30
2
constitutional
right.
ODC v. Pozonsky,
177 A.3d 830, 838 (Pa. 2018).

out and
of these defendants
exonerated,
but in
between
Using
the11strategy
above, people
both
and 1985
and 2016, only 11 prosecutors were disciplined, only two of them
outside
my office have had tremendous success with
publicly); Center for Public Integrity, " Harmful Error " (June 2003)
(available
at https://publicintegrity.org/topics/state-politics/harmfulRule 600
motions.
Oftentimes, just making it plain
3
error/) (Authors surveyed Lexis and Westlaw back to 1970 and found
See Bruce Green & Ellen Yaroshefsky, Prosecutorial
to the2,012
Commonwealth
that you intend to seriously
dismissals or reversals due in whole or part to prosecutorial
* Request
discovery
early
and
inL.writing.
That(2016).
way,
Accountability
2.0, 92
Notre
Dame
Rev. 51, 97-100
misconduct.
They
found
44you
disciplinary
cases
in
litigate
this
issue
can
get
results.
It against
is onlyprosecutors
one
4
See
Robert H. Jackson, The
Prosecutor,
31 J. Crim. L. &
if the
Commonwealth
failsFederal
to provide
requested
the same period for misconduct that affected criminal proceedings.
in your arsenal, but because a win means
Criminology 3, 3 (1940)( " The prosecutor has more control over life, weapon
Seven resulted in dismissals. In 20, the courts imposed a public or
discovery,
any required continuance will be on
liberty and reputation than any other person in America. " ). For a discharge,
is a potent
that
should
never
private it
reprimand,
in 12, weapon
a suspension
of some
duration,
and there
themore
prosecution.
If youon
have
to follow-up
withand
thehow it
recent publication
the power
of prosecutors
were two disbarments.)
be overlooked.
16
has contributed to
over-incarceration
and how
it can
contribute
Bruce A. Green, Prosecutorial Ethics in Retrospect, 30 Geo. J.
Commonwealth
about
discovery they
have
failed
to
to reform, see Emily Bazelon, Charged: The New Movement to
L
egal Ethics 461, 478 (2017).
hand
over,
be
sure
to
memorialize
such
requests
in same
Discuss
this waiver
with
your
client
with the
Using the strategy above, people both in and
17
Transform
American
Prosecution
and
End
Mass
Incarceration
See the Notice of Proposed Rulemaking, 50 Pa. B. 5977 (Oct.
NOTES:
a writing
such as anyou
email.
seriousness
would discuss the waiver of any 1 31,outside
my
office have cases
had tremendous
(2020).
2020). This
change
there is a success
finding with
Commonwealth
v. Mills,includes
162 A.3d 323where
(Pa. 2017).
5
30
RPCconstitutional
3.8(d).
right.
Rule
600
motions.
Oftentimes,
just
making
it plain
of
civil
fraud
or
ineffective
assistance
of
counsel
as
well.
The
2
U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
* If a6 continuance
is required due to the
RPC 3.4(a).
staleness
rule
does
not
apply
in
cases
involving
a
knowing
act of
3
to the Commonwealth
that427,
you431
intend
to seriously
v. DeBlase, 665 A.2d
(Pa. 1995).
7
v. Alabama
ex rel. T.B.,
511
U.S.
Batson
v. way, Commonwealth
Commonwealth's
failure
of
diligence,
be sure
to
*J.E.B.
Request
discovery
early
and127
in(1994);
writing.
That
concealment.
D.407
Bd.U.S.
Rules514,
§ 85.10(b)(1).
4
Barker
v.
Wingo,
530
(1972)
(articulating
the
Kentucky, 471 U.S. 79 (1986); RPC 8.4(d).
18 litigate this issue can get you results. It is only one
ODC has four
district
offices in Pennsylvania.
https://
put8 that
record atand
theConvicting
time
theprovide
continuance
if on
thethe
Commonwealth
fails to
requested
constitutional
Commonwealth
v. Preston,See
A.2d
" Government
Misconduct
the
Innocent "
at
weapontest);
in your
arsenal, but
because904
a win
means
www.padisciplinaryboard.org/about/contact/district-offices.
The
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
is requested.
Even(available
if the
judge
does not rulewill
in be on
discovery,
any
required
continuance
12 (Sept.
1, 2020)
at https://www.law.umich.edu/
Counsel
in
Charge
of
the
district
reviews
all
requests
to
dismiss
discharge,
it
is
a
potent
weapon
that
should
never
analysis from Rule 600 and therefore needs to be a
special/exoneration/Documents/Government_Misconduct_and_
your
favor,
you have at least
the issue for
the prosecution.
If youpreserved
have to follow-up
with the separate
complaint. D. Bd. Rules § 87.8(c).
raised
separately).
be overlooked.
Convicting_the_Innocent.pdf).
19
In addition, before we recommend private discipline or file a
appeal.
Commonwealth
about
discovery they
have failed to
9
5
Id. at
5. See, e.g., " 426 Years:
An Examination
of 25 Wrongful
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
petition for public discipline, the Respondent attorney must be
hand in
over,
be sure
memorialize such requests in v. Kearse,
Convictions
Brooklyn,
NY " to
www.brooklynda.org/wp-content/
890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
given
an opportunity to respond to the allegations, D. Bd. Rules
* All uploads/2020/07/KCDA_CRUReport_v4r3-FINAL.pdf.
motions to dismiss pursuant to Rule 600 must
be
NOTES:
Nondisclosure
" prejudice " need be shown to obtain Rule 600 dismissal).
a writing 31such as an email.
§ 87.7,
1 and a reviewing member of a hearing committee must
File was
your
client's
motion
afterand
the
made
in writing.
Commonwealth
v. definitive
Mills, 162 A.3d
323 (Pa.the
2017).
of exculpatory
evidence
a factor
in 10
cases (40%),
in
While Rule
600 has a more
time period,
sole
approve
the
matter
for prosecution,
Pa. R.D.E.
208(a)(3);
D. Bd.
2
7*
of those
10,
the
fault
lay
primarily
with
the
prosecutor.
Id.
at
U.S.
C
onSt
.
A
mend
.
VI;
PA.
CONST.
art.
1,
§
9.
focus
of
Rule
600
is
on
the
action
of
the
Commonwealth.
365-day
period
has
elapsed.
If
the
trial
judge
rules
If a continuance is required due to the
Rules3 §Commonwealth
87.32.
55-56. Some other kind of prosecutorial misconduct - such as
v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
20 a constitutional argument should be forwarded
against
you the
and
subsequently
the
Commonwealth's
failure
ofinCommonwealth
diligence,
sure
to Thus,
Many
ADAs v.
inWingo,
Pennsylvania
are 514,
part-time
and have
private
4
misstating
evidence
- was
present
21 of the 25 be
cases.
Id. at
Barker
U.S.
530that
(1972)
(articulating
the
when a delay
prejudices
a407
defendant
and
delay
was
practices
in
addition
to
their
official
duties.
This
review
causes
another
substantial
period
of
delay,
file
19, 60-68.
put that on the record at the time the continuance primarilyconstitutional
test);
Commonwealth v. Preston,policy
904 A.2d
caused
by
the
courts.
10
does not apply to complaints against them in their private
ODC
James
71
DB
2014
(2015)
(S.Ct.
1, 10
(Pa.600(D)(1).
Super. Ct. 2006) (the Barker test is an entirely
a new
Rule
600 Carbone,
motion
based
onjudge
this additional
isv.requested.
Even
if the
doesorder
not 8/12/15).
rule in 6 Pa.R.Crim.P.
Rule
practices or
personal lives.
He aggravated his discipline by failing to respond to the Petition
separate
analysis
from Rule 600 and therefore needs to be
21
time
litigate
ityou
prior
tohearing.
any
trial preserved
to preservethe
anissue for
your
favor,
have
at least
RPC 8.3(a) & comments [1]-[4].
forand
Discipline
or appear
at
his
raised separately).
22
11
Click
here
tonotview
print
thedisclose
RPC5 8.3(a)
does
require and/or
a report where
it would
ODC
v. to
Stacy
Parks
Miller, 32 DB
2017
(D. Bd. Rpt. 12/6/2018)
objection
the
additional
time
period.
appeal.
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
PANTONE

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22/58/92

234/194/56

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PANTONE

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7406C

CMYK

90/78/39/30

9/22/91/0

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22/58/92

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HEXIDECIMAL

#153A5B

(S.Ct. Order 2/8/19) (District Attorney suspended for one

#EAC137

information
that RPC 1.6 requires
the
attorney
to protect as
full
notes
for395
this
article.
v. Kearse,section
890 A.2d 388,
(Pa. Super.
Ct. 2005) (no

RPC 8.3(c).
year
and
dayhearing,
forto
ex dismiss
parte
communications
judges,
* At the
600
after
the defense
has
* Rule
All one
motions
pursuant
towith
Rule
600 must be confidential.
" prejudice " need be shown to obtain Rule 600 dismissal).
23
communications
with
represented
parties,
and
deceitful
conduct
Pa.
R.D.E.
207(b)(1);
D. Bd. Rules § 87.1(b).
31
made amade
primainfacie
showing
defendant
Filethat
yourthe
client's
motion after the 24
writing.
While Rule 600 has a more definitive time period, the sole
in violation of RPC 3.5, 4.1, 4.3, 5.3, and 8.4).
Pa. R.D.E. 209(a); D. Bd. Rule § 87.51(a).
of Rule 600 is on the action of the Commonwealth.
has12not
been
brought
to
trial
within
365-day
period
has
elapsed.
If365
the
trial
judge rules 25 RPC focus
ODC
v. Frank
G.
Fina, 166
DB
2017
(2019),
aff'ddays,
per curiam,
3.8(d). The obligation extends to any information that may
Thus,
a constitutional argument should be forwarded
225
A.3d
568
(Pa.
2020).
Justice
Wecht's
concurring
opinions
the Commonwealth
bears
the burdenthe
of proving
against you and
subsequently
Commonwealth lead to exculpatory
evidence or assist the defense in meeting the
when
delay
prejudices
a defendant
that
delay was
describe the false representations to the supervising grand jury
prosecution'sacase
even
if the information
itselfand
is not
admissible
thatjudge
they
have
nonetheless
acted
with
diligence.
causes
another
substantial
period
of
delay,
file
primarily
caused
by the courts.
which aggravated the case. 225 A.3d at 571-72. The Rule
in evidence.
Dennis
v.
Secretary,
Dep't
of
Corrections,
834
F.3d
6
Thisatmeans
that
after
defense
hason
made
a new
Rule
600the
motion
based
this such
additional
issue,
RPC
3.10,
applies
only
to state
court
prosecutions.
Courts
Pa.R.Crim.P.
600(D)(1).
Katherine
Ernst is an
263, 308-310
(3d Cir.Rule
2016)
(en banc).
have time
ruled
under
theitSupremacy
state disciplinary
a prima
faciethat
showing,
the Commonwealth
and
litigate
itisprior
toClause,
any trial
to preserve an
appellate attorney with the
authorities cannot require pre-subpoena approval of federal
Click
here
to
view and/or print the
who
should
be
required
to
put
on
its
evidence
objection
to
the
additional
time
period.
prosecutors working with federal grand juries. Baylson v. PA
Montgomery County Public
full notes section for this article.
Board,
975 F.2donly
102 (3d
Cir. 1992);
also
andDisciplinary
the defense
should
argue
aftersee
the
Defender's Office. She
* AtStates
the v.
Rule
600 Court
hearing,
after
the839
defense
has
United
Supreme
of New
Mexico,
F.3d 888,
928
Commonwealth
hasBaylson
done rule
so. survives
Essentially,
a Rule
600
(10thmade
Cir. 2016)
(the
enactment
of
28
U.S.C.
handles appeals from all
a prima facie showing that the defendant
hearing
proceed
in form
almost
identically
§ 530B,should
which subjects
federal
prosecutors
to state
ethics rules).
has not been
brought
to No.
trial2202
within
365 days,
units, juvenile to homicide,
ODC v. Kathleeen
Granahan
Disciplinary
to a13 suppression
hearing.
If Kane,
the judge
asks
you Docket
Commonwealth
bears
burden of
proving
No. 3the
(Sept.
21, 2015) (per curiam
orderthe
of temporary
suspension
and she
formulates
Mr.also
Thomas
J. Farrell is the Chief
to argue
prior
the Commonwealth's
evidence,
pursuant
Pa.to
R.D.E.
ODC v. Kathleen
Granahan
thattothey
have208(f)(1));
nonetheless
acted with
diligence.
legal
strategy
for
pre-trial
Disciplinary Counsel
in charge
make
it clear
that(March
you could
not possibly
argue
Kane,
17 DB 2019
22, 2019)(Supreme
Court
per curiam
This
means that after the defense has made such and trial units. Katherine graduated
ofKatherine
the Office
ofErnst
Disciplinary
Magna
Cum
order
of
disbarment).
is an
on 14behalf of your client until you know what the
Innocence
Project,
A National
a prima
facie " Prosecutorial
showing, itOversight:
is the Commonwealth
Counsel,
the
enforcement
arm
Laude from Loyola Law School,
New Orleans
appellate
attorney with
the
Commonwealth's
evidence
of v.diligence
is.(March 2016 )
Dialogue in the Wake
of Connick
Thompson "
of
the
Pennsylvania
Attorney
who
should
be
required
to
put
on
its
evidence
in 2007 and was on law review.
She practiced
Montgomery
County Public
(available at https://www.innocenceproject.org/wp-content/
Disciplinary Board. He practiced
* If the
Commonwealth
theargue
Rule 600
and the defenseappears
should at
only
after the
uploads/2016/04/IP-Prosecutorial-Oversight-Report_09.pdf).
Many
at Kaufman, Coren & Ress inDefender's
Philadelphia
out She
Office.
criminal law for 32 years, as
states,Commonwealth
including
private
discipline
lower600
hearing
and
doesPennsylvania,
not present
anyso.
evidence
thatfor
has impose
done
Essentially,
a Rule
of law school, and thereafter
did work
in thefrom
appeals
level violations; therefore, it is possible that some prosecutors
anhandles
Assistant
Federal
Publicall
it acted
with
diligence-for
instance,
they
did not
hearing
should or
proceed
in form
almost
identically
received
an admonition
private
reprimand.
intersection of horseracingDefender
law
and
§1983
for
a an
units,
juvenile
to homicide,
in
the E.D.N.Y.,
15
Stephanos
Bibas, Prosecutorial
Regulation
versus
Prosecutorial
bring
intothe
officer
to testify
to the
attempts
made
a suppression
hearing.
If the
judge
asks you
number
of
years
before
following
her
passion
and
she also
formulates
AUSA in the W.D.Pa., and as
a private
practitioner
in
Accountability, 157 U. Penn. L. Rev. 959, 976 (2009). For other studies
to find
and
apprehend
the
defendant-argue
that
prior
the
Commonwealth's
evidence,
alongto
theargue
same
lines,
seeto
New
England
Center for Investigative
Pittsburgh.
He is a defense.
former PACDL
Board member.
for
indigent
criminal
legal
strategy
for
pre-trial
Journalism, "
Who
Breakcould
The
Rules
Unpunished,
they
have
notProsecutors
their
burden
because
the
burden
make
itmet
clear
that
you
notGopossibly
argue
Leading To Unfair Trials And Unjust Imprisonment " (available at
and trial units. Katherine graduated Magna Cum
of proof
includes
the
burden
of
production
and
on
behalf
of
your
client
until
you
know
what
https://www.wgbh.org/news/2016/04/03/local-news/prosecutors- the
Laude from
Loyola
Law School, New Orleans
Share
this
article
who-break-rules-go-unpunished-leading-unfair-trials-and-unjust)
arguments
of counsel areevidence
not evidence.
Commonwealth's
of diligence is.
(in at least 1,320 decisions since 1985, the prosecutor was faulted,
in 2007 and was on law review. She practiced
and
was reversed orappears
criminal charges
thrown
* aIfguilty
theverdict
Commonwealth
at thewere
Rule
600
at Kaufman, Coren & Ress in Philadelphia out
Vol. Vol.
4, Issue
4 l For
9 15
hearing and does not present any evidence that
6,and
Issue
1 l The
For Defense
The
Defense
of law school,
thereafter
did
work in the
it acted with diligence-for instance, they did not
intersection of horseracing law and §1983 for a

About the Author

About the Author

About the Author
https://www.publicintegrity.org/topics/state-politics/harmful-error/ https://www.publicintegrity.org/topics/state-politics/harmful-error/ https://www.padisciplinaryboard.org/about/contact/district-offices https://www.padisciplinaryboard.org/about/contact/district-offices https://www.law.umich.edu/special/exoneration/Documents/Government_Misconduct_and_Convicting_the_Innocent.pdf https://www.law.umich.edu/special/exoneration/Documents/Government_Misconduct_and_Convicting_the_Innocent.pdf https://www.law.umich.edu/special/exoneration/Documents/Government_Misconduct_and_Convicting_the_Innocent.pdf http://www.brooklynda.org/wp-content/uploads/2020/07/KCDA_CRUReport_v4r3-FINAL.pdf http://www.brooklynda.org/wp-content/uploads/2020/07/KCDA_CRUReport_v4r3-FINAL.pdf https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021/src/PACDL_Magazine_notes_office_of_disiplinary.final.pdf https://www.innocenceproject.org/wp-content/uploads/2016/04/IP-Prosecutorial-Oversight-Report_09.pdf https://www.innocenceproject.org/wp-content/uploads/2016/04/IP-Prosecutorial-Oversight-Report_09.pdf https://www.wgbh.org/news/2016/04/03/local-news/prosecutors-who-break-rules-go-unpunished-leading-unfair-trials-and-unjust https://www.wgbh.org/news/2016/04/03/local-news/prosecutors-who-break-rules-go-unpunished-leading-unfair-trials-and-unjust
For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1
