For the Defense - Vol. 7, Issue 4 - 32

That pretrial liberty is correlated with positive case outcomes
is being borne out in research:
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.
[S]tudies have shown that . . . [b]eing incarcerated
during the pretrial period can ... undermine an
individual's ability to freely interact with their
lawyer to mount a defense. Additionally, pretrial
detention can limit their ability to demonstrate
that they are acting responsibly (e.g., supporting
their families, maintaining employment, working
in the community), which can result in less lenient
sentencing outcomes.35
While criminal defense attorneys should be arguing for
ame
ny
way,
ed
n
h the
led to
sts in
to
* 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.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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.
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.
NOTES:
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
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uance
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ust be
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* 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.
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
[C]riminal justice stakeholders have . . . grown
increasingly concerned over the collateral
consequences of widespread detention and
have pointed to the lack of empirical evidence
demonstrating that pretrial detention is necessary to
ensure public safety. Research has actually found that
pretrial detention can have adverse effects on public
safety. Detaining low and moderate-risk defendants
has strong correlations to higher rates of new criminal
activity, both during the pretrial period and in the
years following case disposition. Moreover, there
is a statistically significant and positive correlation
between longer pretrial detention periods and
rates of post-disposition recidivism. The current
research has not been able to fully explain these
correlations, however, scholars have suggested that
this relationship may be the result of the collateral
consequences of pretrial detention (e.g., loss of job,
unstable housing, familial problems upon release).37
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In addition to posting bail, the Lancaster Bail Fund champions
changes to policies and practices. Our mission is to alleviate the
inequity inherent in the cash bail and pretrial detention systems,
and restore the presumption of innocence though direct service,
education, and advocacy. Like most other bail funds across the
country, we are working in pursuit of safer communities. We are
working to put ourselves out of business. For further information
or to support our work, please visit our website, follow us on
social media, and consider setting up a tax-deductible recurring
donation.
5
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HEXIDECIMAL
e 600
cally
u
ce,
* 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.
NOTES:
1
About the Author
Click here to view and/or print the
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full notes section for this article.
right to bail).
2
PA. Const. art. I § 14; see also 42 Pa.C.S.A. § 5701 (encoding the
Commonwealth v. Truesdale, 296 A.2d 829, 834 (Pa. 1972).
3 pA. R. CRIm. P. 524 ( " Types of Release on Bail " ).
4 pA. R. CRIm. P. 523 ( " Release Criteria " ).
5 pA. Const. art. I § 13.
6
AbA stAndARds FoR CRImInAl JustICe (tHIRd): pRetRIAl ReleAse, 10.1
(2007).
32 For The Defense l Vol. 7, Issue 4
File your client's motion after the
pretrial liberty as part of their zealous advocacy efforts, we
should also be interested in this issue as concerned community
members. What we are doing is needlessly expensive,36
not working:
and it's
NOTES:
1
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 Author
Michelle Batt
What inspired you to become a criminal
defense attorney?
I grew up in the shadows of Penn State
University, where my father worked as
a tenured Professor. There is a reason
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they call it Happy Valley. I was lucky
to enjoy a sheltered and privileged
upbringing. I attended Penn State for
my undergraduate studies, double
majoring in Sociology and Philosophy
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
with a minor in Science, Technology and Society. When I was in my early
twenties, my brother and best friend was arrested and incarcerated. I
will never know how much that influenced my career path, but when I
later enrolled in law school, I was drawn to criminal law. It felt alive.
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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).
5
Where did you start your legal career?
When I graduated with my J.D. in 2013, I accepted a clerkship with the
President Judge of Monroe County, where I later began my career as
a public defender. In 2016, I relocated to Lancaster and continued my
career with the Lancaster County Public Defender Office. In Lancaster, I
ascended to Senior Assistant Public Defender and gained the experience
necessary to become capital certified.
What prompted you to create the Lancaster Bail Fund?
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).
About the Author
Click here to view and/or print the
full notes section for this article.
When did you jump into this endeavor?
In March of 2021, I resigned with the intention of using my hyperspecific
knowledge to help local reform efforts. I became active with
several community groups, including one that started an impromptu
bail fund in response to a local MDJ setting bail at one million dollars
for a half-dozen people arrested during protests in the summer of 2020.
Several individuals and organizations aside from this one expressed the
desire to have an established bail fund in our community. It seemed
easy enough to get one started, so that's what I did.
How will you judge the success of the Lancaster Bail Fund?
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
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.
What is next for you?
I am now lucky to be employed with Church World Service where I
practice removal defense in their Immigrant Children's Program. While I
am still active in the day-to-day operation of Lancaster Bail Fund, we are
expanding our volunteer network and fundraising to hire, and my goal
is to ultimately step back and take an advisory role.
Share this article
Vol 4 Issue 4 l For The Defense 9
It is my hope that the Lancaster Bail Fund helps bringing about much
needed change to local practices. On the long road to reform, I take
comfort in one of my favorite quotes, by James N. Watkins: " A river
cuts through a rock, not because of its power, but because of its
persistence. "
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
My perspective on the criminal system and my role in it started to shift
during the summer following the murder of George Floyd. I began to
feel as though I was helping to perpetuate and justify an unjustifiable
system by showing up for work every day. The changes being called for
by the tens of millions of Americans who took to the street that summer
are not going to come from inside a criminal courtroom. To think
otherwise is the very definition of insanity.
At Penn State Law, I became involved with the Public Interest Law
Fund after receiving a Fellowship through the Degenstein Foundation
for my 1L summer internship with the Centre County Public Defender
Office. Over my law school career, I served the Public Interest Law Fund
as the Fundraising, Service, and Fellowship Chairs, and was ultimately
recognized with the Public Interest Advocate Award.
https://lancasterbailfund.org https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022/src/Notes_Funding_the_Gap_Michelle_Batt_FINAL.pdf
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