For the Defense - Vol. 9, Issue 3 - 39

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Outside of the direct impact that public defenders and appointed
counsel have on their clients, indigent defense attorneys are also
essential to a well-functioning criminal justice system because they
challenge prosecutorial and police misconduct. Defense attorneys
" serve as frontline defenders of Fourth Amendment rights and a
check on police behavior " as their " filings of suppression motions are
the primary catalysts that move other court actors to hold the police
accountable for Fourth Amendment violations. " 25
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Similarly, defense
* 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.
* 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.
defenders and appointed counsel are most likely to come in contact
with harmful criminal statutes and practices because of the volume of
cases they handle. The Defender Association of Philadelphia, which
employs staff with capacity to investigate and challenge harmful
criminal statutes and practices, has brought numerous impactful
lawsuits to challenge such laws and practices. But most Pennsylvania
county offices of the public defender do not have staff with the time
or experience to be able to challenge such abuses - many counties do
not even have dedicated appellate attorneys, and the development
of case law in the appellate courts suffers as a result.
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.
Finally, properly funded public defender offices have the capacity
to implement innovative new forms of criminal defense practice
that could benefit all criminal defense practitioners. For example,
after receiving private grant funding in 2019, the Allegheny
County Office of the Public Defender expanded its representation
of clients at preliminary arraignments.30
A study found that people
represented by the Allegheny County public defender's office at
their preliminary arraignments were 21% more likely to be assigned
non-monetary bail and 10% more likely to be immediately released
than an unrepresented control group.
implemented by public defender offices include participatory defense
and wrap-around services.31
Yet, without the adequate resources,
none of these protections and innovations can be fully realized.
Conclusion
It's time that Pennsylvania finally lives up to its obligation under
attorneys are responsible for challenging Brady violations and holding
prosecutors accountable for concealing exculpatory evidence.26
Public defenders represent clients in more than half of the adult
criminal cases brought in Pennsylvania.27
But overwhelming caseloads
* 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.
public defenders to more clearly recognize and challenge improper
prosecutorial and police conduct.28
allow Pennsylvania's public defenders little time to investigate the
facts of their cases to identify prosecutorial and police misconduct
and to file suppression and discovery motions.
* 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.
This volume of cases allows
Public defenders and appointed counsel, when not overburdened
with crushing caseloads, also play a vital role in implementing
criminal justice reforms. Public defender offices are well-positioned to
challenge harmful criminal statutes adopted by the General Assembly
and destructive applications of the law by state or county entities. As
the ACLU-PA has highlighted in its " More Law, Less Justice " series,
the General Assembly " churn[s] out hundreds of new bills each
legislative session that seek to add new and duplicative offenses and
increased penalties to our already bloated criminal code, " a practice
that " fuel[s] mass incarceration in our commonwealth. " 29
File your client's motion after the
Public
* 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
Kuren v. Luzerne County, 146 A.3d 715, 733 (Pa. 2016) (quoting
Johnson v. Zerbst, 304 U.S. 458, 462 (1938)).
2
811 n.3 (Pa. 2014) (Saylor, J., dissenting)).
3
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4 Kuren, 146 A.3d at 717.
5
NOTES:
1
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NOTES:
1
Pennsylvania Indigent Criminal Defense Services Funding and
Caseloads, Pennsylvania General Assembly Legislative Budget and
Finance Committee at S-6 (Oct. 2021), http://lbfc.legis.state.pa.us/
Resources/Documents/Reports/701.pdf (last visited Apr. 17, 2024)
(Philadelphia has a total county population of 1.6 million and a
per-capita spending of $30.20 in 2019. Removing Philadelphia's
2019 spending and population would give Pennsylvania a $7.20
per capita spend); David Carroll and Aditi Goel, The State of the
Nation on Gideon's 60th Anniversary, Sixth Amendment Center
(Mar. 14, 2023), https://6ac.org/the-state-of-the-nation-ongideons-60th-anniversary/
(last visited Apr. 17, 2024) (calculating
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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
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
5
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* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
per capita funding by total state population).
6
File your client's motion after the
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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).
Paul Heaton, Gideon's Promise Versus Gideon's Reality:
Resource Shortfalls In Pennsylvania Public Defense, Quattrone
Center for the Fair Administration of Justice (2024), https://www.
law.upenn.edu/institutes/quattronecenter/reports/indigentdefense-funding/resource-shortfalls-in-public-defense/content/#/
(last
visited June 12, 2024).
5
* 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.
Other innovative practices
About the Authors
About the Author
Click here to view and/or print the
full notes section for this article.
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.
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. at 749 (quoting Commonwealth v. McGarrell, 87 A.3d 809,
16 P.S. § 9960.1, et seq.
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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.
* 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.
Gideon and provides sufficient resources so that every indigent
defendant receives adequate representation. Through the Warren
litigation, we intend to hold the Commonwealth of Pennsylvania
to account for its constitutional obligations, so that it provides
adequate funding and oversight for indigent defense services. Fixing
this problem will benefit not just indigent individuals charged with
crimes, but also the entire criminal justice system, by creating a fairer
and less retributive system.
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* 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.
Pennsylvania Senate Democratic Appropriations Committee,
where she advised on criminal justice and social equity issues
and played a key role in the legislation that established the
Indigent Defense Advisory Committee. Veronica is an alumna of
the Penn State Dickinson School of Law.
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
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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.
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
Ariel Shapell is a legal fellowship
attorney at the ACLU of
Pennsylvania, where he focuses on
criminal justice reform litigation.
Ari graduated from the University
of Pennsylvania's Law School in
2021 and has an undergraduate
degree from Washington
University in St. Louis.
Veronica Miller, the Senior Policy
Counsel for Criminal Legal Reform
at the ACLU of Pennsylvania, is
a dedicated advocate with a rich
background in law and policy.
Her launch into criminal legal
reform was inspired by her time
as a public defender in Dauphin
County, where she represented
hundreds of juvenile and adult
clients. Veronica's commitment
to fairness and drive for systemic
change led her to serve as the
Deputy Chief Counsel of the
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

http://lbfc.legis.state.pa.us/Resources/Documents/Reports/701.pdf http://lbfc.legis.state.pa.us/Resources/Documents/Reports/701.pdf https://6ac.org/the-state-of-the-nation-on-gideons-60th-anniversary/ https://6ac.org/the-state-of-the-nation-on-gideons-60th-anniversary/ https://www.law.upenn.edu/institutes/quattronecenter/reports/indigent-defense-funding/resource-short https://www.law.upenn.edu/institutes/quattronecenter/reports/indigent-defense-funding/resource-short https://www.law.upenn.edu/institutes/quattronecenter/reports/indigent-defense-funding/resource-short https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue3_2024/src/Notes_Shapell.Final.pdf

For the Defense - Vol. 9, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 9, Issue 3