For the Defense - Vol. 9, Issue 4 - 15

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
Because convictions erect barriers to work, they drive convicted
persons (and their families) toward poverty.21
According to one
study, a person who has spent time in prison will see their annual
earnings reduced by 52 percent. A person convicted of a felony, but
not imprisoned, will see a 22 percent reduction.22
Thus, collateral
* 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.
should intuitively appreciate these points.
Recent Progress
consequences also impact a convicted person's children and spouse,
and ultimately extend to the broader community as a whole.
Further, we know that communities of color are disproportionately
impacted.23
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Finally, it's also worth noting that other justice system stakeholders
such as judges and prosecutors are also harmed by the failure to
adequately fund indigent defense. Effective defense lawyers " know
when to plead their clients guilty and when to go to trial. A client
who has competent counsel and enters a plea ... is a satisfied client.
Not only are the costs of a trial avoided, so too are the costs of
appeal. " " Similarly, where a competent attorney defends a client
at a trial, if there is a conviction and a subsequent appeal, the
issues will be clearly defined. " This can help to avoid lengthy and
expensive litigation under Pennsylvania's Post-Conviction Relief Act
(PCRA), which today eats up a tremendous amount of resources.
Simply put, effective defense lawyers impact " the criminal justice
system as a whole. They eliminate unnecessary trials, avoid
inappropriate guilty pleas and sentences, and reduce " appeals and
PCRAs. " Everyone benefits from " a competent defense, " not just
the wrongfully accused. " 24
File your client's motion after the
Judges with busy criminal court dockets
* 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.
direction.
The Ten Reforms27
* 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.
1. Public defense lawyers should move toward a
more holistic model.
2. Public defense lawyers should have reasonable
workloads.
3. Appointed attorneys should be qualified, trained,
and supervised.
4. Appointed attorneys should be compensated
adequately.
5. There should be parity of resources between the
prosecution and public defense lawyers.
There has been progress in Allegheny County. While still too low,
appointed-lawyer compensation has increased substantially. For
example, the $750 fee cap for felony drug cases we discussed before
was recently increased to $4,500. Additionally, in the 2025 proposed
budget, the County Executive called for a substantial increase in
Public Defender funding.
At the state level, the ACLU filed a lawsuit challenging
Pennsylvania's shameful failure to adequately fund and support
indigent defense at the state level.25
Of note, the ACLU's similar
litigation in Michigan helped bring about dramatic improvements
to that state's public defense systems.
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.
6. The Public Defender should be independent of
political control.
7. Public defense lawyers should be independent of
judicial influence.
NOTES:
1
NOTES:
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
See, e.g., Rob Perkins and Wesley Caines, Holistic defense
can save lives, Pitt. trib.-rEV. Aug.21, 2024 (discussing 2019
data that showed Allegheny County's public defense funding
was roughly on par with that of Mississippi, the state that
ranks dead last in the country in funding), https://triblive.
com/opinion/robert-perkins-and-wesley-caines-holisticUsing
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.
8. The accused should have access to counsel at the
initial bail hearing.
9. The same lawyer should represent the accused
throughout the case.
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10. Public defense providers should track and publish
data.
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defense-can-change-lives/.
2
See James M. Anderson, Maya Buenaventura, and
Paul Heaton, The Effects of Holistic Defense on Criminal
Justice Outcomes, 132 HarV. l. rEV. 823 (2019) (reflecting
substantial taxpayer savings on incarcerated person
housing costs), https://harvardlawreview.org/wp-content/
5
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
uploads/2019/01/819-893_Online.pdf.
3
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).
NOTES:
1
22/58/92
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
File your client's motion after the
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
ABA Ten Principles of a Public Defense Delivery System,
Lastly, in 2023, Pennsylvania established the Indigent Defense
Advisory Committee.26
the Public Defender Association of Pennsylvania, recently facilitated
the first-ever disbursement of state-funded grants to every Public
Defender office in the state.
While much work remains to be done, these are steps in the right
* 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.
That Committee, chaired by Sara Jacobson of
About the Author
Click here to view and/or print the
full notes section for this article.
full notes section for this article.
About the Author
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).
am. bar ass'n (Nov. 2023), https://www.americanbar.org/
groups/legal_aid_indigent_defense/indigent_defense_
systems_improvement/standards-and-policies/ten-principlespub-def/.
About
the Author
Click here to view and/or print 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
* 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.
In
Rob Perkins is Executive Director
of the Allegheny Lawyers Initiative
for Justice (ALI). Rob also operates
a private criminal defense practice.
A former public defender, Rob
continues to serve indigent clients
by frequently accepting state and
federal court appointments to
defend the accused.
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.
May 2024, ALI published, " Transforming Public Defense in
Allegheny County: The Path Forward. " The full research
report, along with a summary of the reforms and
recommendations, is available here.
Share this article
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Vol. 9, Issue 4 l For The Defense 15
Vol. 4, Issue 4 l For The Defense 9
Vol. 4, Issue 4 l For The Defense 9
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
About ALI: Established in 2022, ALI is a nonprofit that serves
as an independent voice for public defense reforms.28
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.
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).
RGB
9/22/91/0
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
https://triblive.com/opinion/robert-perkins-and-wesley-caines-holistic-defense-can-change-lives/ https://triblive.com/opinion/robert-perkins-and-wesley-caines-holistic-defense-can-change-lives/ https://triblive.com/opinion/robert-perkins-and-wesley-caines-holistic-defense-can-change-lives/ https://harvardlawreview.org/wp-content/uploads/2019/01/819-893_Online.pdf https://harvardlawreview.org/wp-content/uploads/2019/01/819-893_Online.pdf https://www.americanbar.org/groups/legal_aid_indigent_defense/indigent_defense_systems_improvement/ https://www.americanbar.org/groups/legal_aid_indigent_defense/indigent_defense_systems_improvement/ https://www.americanbar.org/groups/legal_aid_indigent_defense/indigent_defense_systems_improvement/ https://www.americanbar.org/groups/legal_aid_indigent_defense/indigent_defense_systems_improvement/ https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue4_2024/src/Notes_Perkins.pdf
For the Defense - Vol. 9, Issue 4

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