For the Defense - Vol. 8, Issue 4 - 39

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.
* 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.
Final Reflections
* 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.
PANTONE
Now, more than ever, it appears that: " The only constant in life
is change. " 20
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Recently while watching both football and baseball games, I
could not help but reflect on those 1980s gambling cases during
the ads for the now ubiquitous sports betting apps. I sometimes
wonder who was the last person sent to prison under prohibition,
who was the last person convicted for honest (as opposed to rigged)
sports gambling; and who will be the last person imprisoned for
marijuana possession?
Roy called me in Erie where I was serving as the Public Defender
and asked if I would come to Harrisburg to serve in the new criminal
division. I said 'yes' and my wife and I moved to Harrisburg. Roy had
asked his law school classmate, Robert L. " Bob " Keuch, to be the
Executive Deputy Attorney General and Head of the new criminal
division. Bob was a Hazelton native who served in the Justice
Department and had extensive experience with investigative
grand juries and wiretaps. Bob later told me that before his law
school graduation, he was selected for the Attorney General's
Honors Program in Washington. When he passed the bar exam,
his father took him to a local Hazelton watering hole to celebrate.
His dad told him " it's OK to tell everyone that you passed the bar,
just don't tell them where you will be working. " The times have
certainly changed.
While at the AG's office, we spent much of our resources in the
Organized Crime Section chasing " sports books. " At the time, it
made sense to try out the new laws16
on a crime like gambling. One
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
of the first men we prosecuted was Tony Leta. He had the distinction
of being the first person convicted using both the Federal17
Pennsylvania18
and
wiretap laws. For Pennsylvania gamblers, the Horse
Racing Industry Reform Act (1959) allowed parimutuel betting on
harness races only at the tracks in Pennsylvania with the first bets
placed in 1963. Wagering on thoroughbred racing was legalized
in 1968.19
File your client's motion after the
The Pennsylvania lottery sold its first tickets in 1972.
The sports bookies we prosecuted in the 1980's accused the AG of
trying to protect the State's gambling monopoly and it is easy to
see why they believed that.
5
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.
6 Brady v. Maryland, 373 U.S. 83 (1963).
7 Miranda v. Arizona, 384 U.S. 436 (1966).
8 Bill Voedisch, Westlaw, An Early History (2015), https://librarycollections.
law.umn.edu/documents/William_Voedisch_An_Early_History_of_
Westlaw_2015.pdf.
9
Amended Memorandum of Law, Mata v. Avianca, Inc., No. 1:22-CV-1461PKC,
ECF No. 49 (S.D.N.Y. June 8, 2023); Mata v. Avianca, Inc., No. 22-CVPANTONE
1461
(PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023).
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1
4
1995), ECF No. 267.
11
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
No. 193 (Feb. 4, 1997).
12
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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).
can-you-do-with-a-drunken-lawyer.
13
14
204 Pa. Code § 89.293, et seq. - Substance Abuse Probation.
207 Pa. Code, Chapter 121. Special Procedures For Cases Involving
Substance Abuse.
15
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).
Heraclitus, 500 B.C.E.
html. (last visited Oct. 10, 2023).
16
and the Commonwealth Attorneys Act, 71 P.S. § 732-101 et seq.
17
U.S. v. Leta, 332 F. Supp. 1357 (M.D. PA 1971).
18 Commonwealth v. Leta, 500 A.2d 85 (Pa. Super. 1985).
19 Patti Reed, Pennsylvania's Legalized Horse Racing Begins - Racing
from 1963-1990, https://pennhorseracing.com/stories/pa-horse-racinghistory-1963-1990/
(last visited Oct. 10, 2023).
20
About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
William I. " Skip " Arbuckle
is a United States
Magistrate Judge for
the Middle District of
Pennsylvania. He was
appointed as a part-time
Magistrate Judge in 2008,
and then was appointed
to serve full-time in
2017. Judge Arbuckle
received his Bachelor of
Arts degree from Grove
* 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
Weeks v. United States, 232 U.S. 383 (1914).
2 Wolf v. Colorado, 338 U.S. 25 (1949).
3 Mapp v. Ohio, 367 U.S. 643(1961).
4 Johnson v. Zerbst, 304 U.S. 458 (1938).
5 Gideon v. Wainwright, 332 U.S. 335 (1963).
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
Vol. 8, Issue 4 l For The Defense 39
City College, and his Juris Doctorate degree from
Akron University School of Law. During his fortynine-year
legal career, he has worked as an assistant
prosecutor, special deputy attorney general,
assistant public defender, chief public defender, a
litigation associate in an insurance defense firm,
chief deputy attorney general, chief counsel to
the Judicial Conduct Board, and as the managing
partner of a seven-lawyer general practice firm.
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
Robert Mcg. Thomas Jr., Fred Speaker, 66, a Crusader Against Capital
Punishment, new York timeS (Sep. 16, 1996) https://www.nytimes.
com/1996/09/16/us/fred-speaker-66-a-crusader-against-capital-punishment.
Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.
C.S. § 5701 et. seq.; Investigating Grand Juries, 42 Pa. C.S. § 4541 et seq.;
United States v. Mangiardi, No. 4:95-CR-00233-JFM (M.D. Pa. Sep. 21,
Id., Motion to Compel Production, ECF No. 179 (Jan. 21, 1997); Order, ECF
Ken Armstrong, What Can You Do With A Drunken Lawyer, the marShall
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ProjeCt (Dec. 10, 2014) https://www.themarshallproject.org/2014/12/10/what3
Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).

https://librarycollections.law.umn.edu/documents/William_Voedisch_An_Early_History_of_Westlaw_2015.pdf https://librarycollections.law.umn.edu/documents/William_Voedisch_An_Early_History_of_Westlaw_2015.pdf https://librarycollections.law.umn.edu/documents/William_Voedisch_An_Early_History_of_Westlaw_2015.pdf https://www.themarshallproject.org/2014/12/10/what-can-you-do-with-a-drunken-lawyer https://www.themarshallproject.org/2014/12/10/what-can-you-do-with-a-drunken-lawyer https://www.nytimes.com/1996/09/16/us/fred-speaker-66-a-crusader-against-capital-punishment.html https://www.nytimes.com/1996/09/16/us/fred-speaker-66-a-crusader-against-capital-punishment.html https://www.nytimes.com/1996/09/16/us/fred-speaker-66-a-crusader-against-capital-punishment.html https://pennhorseracing.com/stories/pa-horse-racing-history-1963-1990/ https://pennhorseracing.com/stories/pa-horse-racing-history-1963-1990/

For the Defense - Vol. 8, Issue 4

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