For the Defense - Vol. 8, Issue 4 - 55

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
so that the State Police could have a second bite at the apple
and try again to demonstrate a threat to public safety.13
In so
* 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.
ruling, the court relied on its previous decisions that suggested
claims related to public safety should be treated differently
under the RTKL than other types of records disputes. As with
its prior ruling in this case, the Commonwealth Court chose
to give deference to law enforcement that seemed to be
incompatible with the standards set forth in the RTKL.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
This required that we take a second appeal to the
Pennsylvania Supreme Court, again with Ms. Hickok and Mr.
Taticchi as co-counsel. In its 2023 opinion, the Court explained
that there can be circumstances where it is appropriate for
the Commonwealth Court to take additional evidence in a
RTKL appeal, given its role as both the appellate court and
factfinder in such cases. But none of the rare circumstances
that would warrant that approach-including a request by
the agency to add supplemental evidence-existed here,
and it was not proper for the court to have taken this step
sua sponte. " Without naming any defect or deficiency, " the
Commonwealth Court " simply gave PSP a fresh opportunity
to carry its burden of proving that an exception to the
disclosure rule applied. " 14
File your client's motion after the
This, according to the Court, was
an abuse of discretion because " [n]othing in the statute
contemplates judicial action after it has been determined
that an agency did not carry its burden. " 15
When, as here,
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.
PANTONE
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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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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).
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* 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.
a court determines that the record created by the agency is
insufficient to justify withholding the policy, " that simply
means that PSP did not carry its burden, " and to give the
agency another opportunity to prove its case " would be to
give preferential treatment to one party over another. " 16
The Court concluded that the State Police must provide the
ACLU with an unredacted copy of the policy. " We must, and
we do, bring this six-year quest for transparency to an end. " 17
Lessons and Suggestions for Future RTKL Requests
* 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.
A month after the Supreme Court's final decision, the State
Police posted the AR 6-9 policy on its RTKL webpage (where
it also posts other administrative policies).18
* 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.
File your client's motion after the
Now that we can
* 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.
read the text, it is clear that the State Police never had any
actual basis to keep this policy secret, needlessly wasting the
ACLU's time and resources and that of the courts for the past
six years. AR 6-9 is a high-level administrative policy that boils
down to saying that PSP can monitor any " open sources, "
i.e., public information on the Internet that it so chooses,
as long as it complies with applicable law. Contrasting the
fairly generic nature of the policy with the agency's claims
that disclosing it would somehow jeopardize public safety
underscores why courts and OOR should not blindly accept
sweeping, unsupported assertions of the public safety
exception by law enforcement agencies. OOR was right all
along: " the threats outlined in PSP's affidavit simply do not
match the text of the policy. " 19
The State Police never had
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.
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
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Over the course of the litigation, the caption switched back and forth
between American Civil Liberties Union of Pennsylvania v. Pennsylvania
State Police and Pennsylvania State Police v. American Civil Liberties Union
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
of Pennsylvania.
2
requests and appeals on its website, https://www.openrecords.pa.gov/.
3
Police, AP 2017-0593 at 9 (Office of Open Records July 7, 2027).
4
5
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
5 Id. at 10.
6
OOR provides useful and easy-to-understand guides to filing RTKL
American Civil Liberties Union of Pennsylvania v. Pennsylvania State
Id. at 7.
Pennsylvania State Police v. American Civil Liberties Union of
Pennsylvania, No. 1066 C.D. 2017, 2018 WL 2272597 at *6 (Pa. Commw. Ct.
May 18, 2018) (unpublished).
7
2013)).
8
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).
Id. (quoting Carey v. Pa. Dep't of Corrections, 61 A.3d 367 (Pa. Commw. Ct.
Id.
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
a reasonable basis to invoke the public safety exception. But
it did temporarily succeed in its effort to needlessly stymie
public understanding and accountability of its actions.
* 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
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.
full notes section for this article.
About the Author
Share this article
About the Author
Click here to view and/or print the
Andrew Christy is a Senior Staff Attorney at the ACLU of
Pennsylvania.
Vol. 4, Issue 4 l For The Defense 9
Vol. 8, Issue 4 l For The Defense 55
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
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).
HE
If we had not set this case up properly before OOR, we
never would have prevailed with the Commonwealth Court.
Instead, because we provided enough evidence to OOR to
make it skeptical of the State Police's claims, the record and
OOR's conclusions convinced even a court that was unduly
deferential to law enforcement that the agency had not met
its burden. It just took a trip to the Supreme Court to confirm
that the case was over-a situation that future requesters
hopefully will not have to deal with moving forward.
full notes section for this article.
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.
PANTONE
2955
At the end of the day, despite the State Police's stalling
tactics, we won this matter and obtained the information we
sought, while making good case law that should help future
requesters. Our main strategic takeaway from this litigation
is that what you do before OOR and the record you create
may ultimately decide the outcome of the case, even if the
final decision will rest with a court. Set out to win the case
before OOR and make the outcome of subsequent court
proceedings a fait accompli. Poke as many specific holes in
the agency's argument as possible. Bring in analogous records
from other jurisdictions, and even try to retain experts with
experience in the area to challenge the law enforcement
claims. For example, in ongoing litigation regarding a county
jail's policies, we are using an affidavit from a former prison
official to rebut the jail's arguments. Find a good reason why
OOR should review the documents in camera and why it
should compare them to the alleged harms. Convincing OOR
to perform an in camera review likely offers the best path to
receiving the records.
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https://www.openrecords.pa.gov/ https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023/src/docs/Six_Year_Struggle.Christy._FINAL.pdf
For the Defense - Vol. 8, Issue 4

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