For the Defense - Vol. 8, Issue 4 - 42

That was June of 2019. Three months later, in September of 2019,
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.
correction officers made a search of " B's " cell at S.C.I. Smithfield and
found three drug-soaked docket sheets. Somehow, " B " made his
way to the Allegheny County Police. He was offered total immunity
if he testified that Gettleman knew the papers were drug-soaked,
to which " B " obviously agreed. His girlfriend, who was in on it, was
also not prosecuted in exchange for her testimony.
Prior to trial-which took us 3 ½ years to get to-the
following occurred:
(a) At the preliminary hearing, " B " completely changed his story
from his testimony at the Grand Jury in several, very material ways.
But, despite this clear Brady material, we only learned of it after
the Court-following a big fight from the District Attorney's office-
ordered the materials to be disclosed;
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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* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
(b) The Commonwealth denied, in their Response to defense
counsel's discovery request, to having the jail calls from " B " to his
girlfriend, despite having obtained them (to their detriment) in
" A's " case. After we spent eight months getting the calls on our
own from Global Tel Links, the company contracting with the jail,
we found that many of the calls were unbelievably exculpatory. We
also learned that the Commonwealth had the calls the whole time
and simply refused to produce despite our requests;
File your client's motion after the
(c) Despite the jail call revealing that " B " and his cohorts printed
up multiple sets of docket sheets, and despite the fact that seven
other attorneys visited " B " in the jail, the Commonwealth never
sought to have the drug-soaked papers tested for fingerprints or
DNA;
(d) Phone call after phone call was clearly exculpatory, but the
Commonwealth produced none of it;
* 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.
(e) In a letter written immediately after the preliminary hearing,
we asked the Commonwealth to preserve the drug-soaked papers
that were being kept in Huntingdon County where they were
seized. We asked to inspect them in both our informal and formal
discovery requests and again repeatedly in emails and phone calls.
Inspecting these papers was extremely important because they
visually appeared totally normal. The appearance of these papers
would be extremely exculpatory as to whether Gettleman should
have known they were drug-soaked when he saw them. Finally, a
few months before trial, when we were forced to file a Motion to
Compel Compliance with the Discovery Rule that would allow us
to finally inspect the documents, Assistant District Attorney Siegert
advised us and the Court that the drug soaked papers had been
destroyed. As it turns out, from the date the papers were seized until
3 ½ years later when we were ready for trial, the District Attorney
did nothing to communicate with the authorities in Huntingdon
County to preserve the drug-soaked papers; and,
* 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.
42 For The Defense l Vol. 8, Issue 4
Vol 4 Issue 4 l For The Defense 9
(f) " B " testified before the Grand Jury that in a brief period of less
than a year, he made $190,000.00 in profit from selling these drugs
in the jail. Interestingly, the Commonwealth did not seek to forfeit
even a penny of the $190,000.00. This was a nice little gift for their
" cooperating " witness.
But the worst of the worst happened during the trial. My cocounsel,
Lee Rothman, cross-examined " B " and his girlfriend. It
was clear to anyone who read the Grand Jury testimony and the
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2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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preliminary hearing testimony that they would be terrible witnesses,
but no one could imagine how terrible. The girlfriend, in the face
of unexplainable contradictions, admitted that she perjured
herself before the Grand Jury. " B " not only admitted to perjuring
himself before the Grand Jury, but also admitted in the face of
incontrovertible evidence that whenever it's in his interest, he lies to
authorities to protect himself.
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).
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
About the Author
Click here to view and/or print the
full notes section for this article.
PANTONE
This article would go on for many, many pages if I listed all the bad
faith acts of the prosecutor and all of " B's " lies. Here's an example of
one that is particularly colorful. When authorities found the drugsoaked
paper in his cell at SCI Smithfield, he told the corrections
officers that these were not his papers, and he had no idea how
they got there. At his prison disciplinary hearing-given that the
papers in question were docket sheets with his name at the top of
the page-he thought better of the earlier explanation. There, he
testified that the papers were his, but he had no idea that they were
drug-soaked. In other words, Gettleman brought him drug-soaked
paper, but didn't tell " B " that they were drug-soaked. This lie, and
all the other lies that the Commonwealth were aware of when they
decided to prosecute, meant nothing to the Commonwealth.
As the trial continued, it became clearer and clearer that not
only was Gettleman innocent, but also the charges never should
have been brought in the first place. In my opinion, the decision
to file these charges against Attorney Gettleman was a clear abuse
of prosecutorial discretion. When the police and District Attorney
heard the name " Gettleman " , they went no further. Three or four
other names of people who were heavily involved in this scheme
came out, but the only person the Commonwealth was interested
in going after was Gettleman who had been a thorn in their side
for years. They failed to investigate anyone else. We had eight
substantive witnesses and eight character witnesses ready to go.
We proceeded with a non-jury trial because we felt we had a fair
Judge who could see that this prosecution was baseless. When the
Commonwealth rested, but before we could call our first witness,
the Judge leaned forward and said, " Do you rest? " We clearly got
the message, we rested, and the Court immediately said, " not guilty
of all charges " .
It was, from an objective point of view, an absolute disgrace that
these charges were ever brought. The lesson to be learned here is
simple. If you are an aggressive, hard-working defense attorney
in Allegheny County, practicing and fighting against the current
District Attorney's office, be careful. You might wind up as an
innocent defendant.
About the Author
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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
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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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Paul D. Boas has practiced
criminal defense for 51 years
and is basically retired. He
was formerly a regional vice
president of PACDL. Currently,
he is a fisherman. The Gettleman
case was his last trial.
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