For the Defense - Vol. 7, Issue 1 - 17

ame
ny
way,
ed
n
h the
led to
sts in
to
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
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never fully addressed the precise scope of this phrase. Prior
to sharing information under a joint defense agreement,
counsel must proceed with caution and decide whether to
proactively seek authorization and clarification from the
supervising grand jury judge.
uance
n
* 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.
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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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ust be
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* 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.
5
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.
NOTES:
1
e 600
cally
u
ce,
e
the
at
not
made
that
* 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.
2018).
2
In re Teleglobe Commc'ns Corp., 493 F.3d 345, 364-65 (3d Cir. 2007)
In re Teleglobe Commc'ns Corp., 493 F.3d at 365.
(interpreting Delaware law).
3
4
Inc., 50 Pa. D. & C. 4th 190, 197, 201-02 (CCP Lehigh Co. 2001).
5
omitted).
6
Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015) (citations
(Pa. Commw. Ct. 2018).
7
(emphasis omitted).
9
In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001).
Chesapeake Appalachia, LLC, 298 F.R.D. 271, 284 (W.D. Pa. 2014).
11
burden
nd
information, " privilege is waived).
12
13 Id. at *6.
See Sandoz Inc., 2021 WL 5139975, at *7 (E.D. Pa. Nov. 4, 2021).
14 See Young, 50 Pa. D. & C. 4th at 198.
15 Id.
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Unless and until the courts provide additional guidance
on these issues, these open questions leave opportunities
for advocacy. Importantly, the Court did not affirmatively
decide whether joint defense agreements provide an
exception to counsel's secrecy obligations. The Court
merely noted that, " in the absence of some developed
counter-advocacy, Section 4549(b) does appear to serve
as a restraint on the range of information that will be
available to counsel to share per a privilege-extending
arrangement. " 50
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Wecht's concurring in part and dissenting in part opinion,
leaves open the possibility that the Court may recognize
such an exception in the future. The Court's inherent
acknowledgement that these issues are not yet resolved
invites opportunity for defense counsel to argue these
issues favorably for their clients before supervising grand
jury judges as well as the appellate courts.
File your client's motion after the
In re Fortieth Statewide Investigating Grand Jury, 191 A.3d 750 (Pa.
See BouSamra v. Excela Health, 210 A.3d 967, 983 (Pa. 2019); see also
About the Author
Click here to view and/or print the
full notes section for this article.
See Id. at 364; Matter of Bevill, Bresler & Schulman Asset Mgmt. Corp.,
805 F.2d 120, 126 (3d Cir. 1986); see also Young v. Presbyterian Homes,
See Pa. Public Utility Comm'n v. Sunrise Energy, LLC, 177 A.3d 438, 445
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).
This language, along with Justice
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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.
About the Authors
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
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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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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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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Meredith Lowry focuses her
practice on white-collar criminal
defense and government
investigations at Klehr
Harrison Harvey Branzburg in
Philadelphia. She represents
individuals and organizations
facing federal and state
criminal investigations,
regulatory enforcement
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).
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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
In re Condemnation by City of Philadelphia, 981 A.2d 391, 397 (Pa.
Commw. Ct. 2009) (citing Johnston v. Johnston, 499 A.2d 1074 (Pa. Super
Ct. 1985)).
8
United States v. LeCroy, 348 F. Supp. 2d 375, 381-82 (E.D. Pa. 2004)
(quoting United States v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989))
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
About the Author
Click here to view and/or print the
full notes section for this article.
actions, and related civil proceedings. Meredith regularly
conducts internal investigations, counsels clients in
responding to grand jury and government inquiries,
advocates for clients under criminal investigation, and
defends clients charged with federal and state crimes in
trials and other proceedings.
Prior to joining the firm, Meredith practiced at several
boutique criminal defense firms. She also assisted in
the representation of public officials and professionals
convicted of federal crimes on appeal before the Courts
of Appeals for the Third Circuit and the United States
Supreme Court.
During law school, Meredith served as a judicial intern
for the Honorable Karen M. Williams of the U.S. District
Court for the District of New Jersey and interned at the
Pennsylvania Innocence Project.
10 In re Teleglobe Communications Corp., 493 F.3d at 363-64; Serrano v.
See Sandoz Inc. v. Lannett Co., Inc., 2021 WL 5139975, at *7 (E.D. Pa.
Nov. 4, 2021) (interpreting Pennsylvania law and holding that " where
both parties were not represented by counsel in an exchange of
* 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.
16 Commonwealth v. Scarfo, 611 A.2d 242, 266 (Pa. Super. Ct. 1992)
(superseded by statute on other grounds).
17
In re Condemnation by City of Philadelphia, 981 A.2d at 397-98.
18 Id. at 398-99.
Vol. 4, Issue 4 l For The Defense 9
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.
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.
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Vol 4 Issue 4 l For The Defense 9
New York. She represents individuals and corporate
clients who are under investigation by state and federal
law enforcement agencies, including State Attorneys
General investigating grand juries and federal grand
juries. Her matters often include allegations of political/
public corruption and complex fraud cases, including
healthcare, bankruptcy, and financial fraud, as well
as criminal tax violations. Ashley also has experience
representing individuals in administrative proceedings,
such as Title IX investigations and the collegiate student
conduct process. Ashley is a partner in the law firm of
Armstrong Teasdale LLP in Philadelphia.
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
Ashley E. Shapiro is a criminal
defense attorney with more
than a decade of experience
defending clients in state and
federal courts. She focuses
her practice on white collar
criminal defense, internal
investigations, and corporate
compliance matters in
Pennsylvania, New Jersey, and
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