Philadelphia criminal lawyer Zak T. Goldstein, Esquire recently appeared on Philadelphia’s Ask the Experts Radio to show to discuss criminal defense and the effect of the coronavirus pandemic on the operation of the Philadelphia criminal courts. A recording of the entire show is available above, or you can read excerpts from the show relating to the status of the courts below.

. . .

Is Goldstein Mehta LLC Open During the Coronavirus Pandemic?

Leigh Richards:

Yeah. Now your office has been closed by order of the governor, right?

Zak Goldstein:

So the physical office is closed, but we are set up to work remotely. It has varied from county to county. Depending on the type of court, some court functions are still moving forward, and we are able to speak with clients and potential clients, both over the phone or through video software like Zoom or FaceTime and things like that. So we can do a lot of the work electronically, but with criminal cases, unfortunately it's not all of it because at the end of the day, we still need to get in front of a judge or a jury for trial. But we have been able to start investigating cases, to get quite a few clients out of jail who otherwise would have been held during this time. The physical office is closed, but we are working remotely.

. . .

Are Philadelphia criminal courts open during the COVID-19 pandemic?

Leigh Richards:

Excellent. So I heard on the radio that the courts are starting to get ready to reopen. They're not actually reopened except for maybe protection from abuse orders, things like that. Maybe you'll be back in sooner than later, but we do not know. Everything is still up in the air. The coronavirus has affected your practice in many ways. Tell us how.

Zak Goldstein:

So that's correct. In roughly mid March, I don't remember the exact date, but when the shutdown started, the Pennsylvania Supreme Court took the governor's recommendation and ordered that all courts close at the trial level, the common pleas level, and then also for the magistrates and Philadelphia Municipal Court. So all of the courts were ordered to close their physical locations, both for criminal and civil cases. With civil, a lot of it can be done remotely because the cases can still be moved forward. With criminal cases, that meant an immediate end to preliminary hearings, to trials, to sentencings. Anything that you would do in a criminal case was pretty much shut down. How the courts have responded to that has really varied from county to county because the Supreme Court's order gave the President Judges some leeway in terms of what proceedings they could keep doing.

Zak Goldstein:

So in Montgomery County, for example, they decided to keep going with preliminary hearings for defendants who are in custody. That's the first step in the process to see if there's enough evidence that a case should keep going forward. So they've been using video software to do remote preliminary hearings for people who were being held in custody. The Philadelphia courts took a pretty active ... It's not everything we would want to see ... But they were receptive to parole petitions for short sentences, and bail motions for people on generally nonviolent charges. To get some people out of jail who are not considered by the court to be a flight risk or a danger to the community. We've been able to file over the last two months, we've been filing a lot of those petitions to get clients out of jail to try to decrease their risk of health problems being held in the jail. Appeals are still moving forward, and we do quite a few appeals at the firm so we've still been working on those.

Leigh Richards:

Now doing things remotely via the internet is not new to the courts. That was a device used prior to the coronavirus when somebody was incarcerated for instance, and had to make an appearance, they would do it remotely from wherever they were being held to the courtroom, wherever that was. So they were actually set up for this.

Zak Goldstein:

It depends. Philadelphia has not been the best on doing these things remotely. Some of the suburban counties are more set up and have done it, used video technology more previously in the past. Philadelphia has really relied on in-person hearings for the most part. A lot of things are being done either by phone or based on paperwork that we could submit with supporting documentation. They have not really been set up to actually get hearings done with the defendant present by video. There's some of that. It's getting a little bit better, but it hasn't gotten all of the way there.

Leigh Richards:

I know Montgomery County is pretty well set up for that because rather than transport somebody, they would just hook them up through the internet.

Zak Goldstein:

Correct.

Leigh Richards:

As I said, they've been doing it for years.

Zak Goldstein:

Right. And Delaware County too, has for years been doing a lot of their violation of probation hearings ... Particularly if it's not really contested ... They've been doing a lot of hearings by video from the jail.

. . .

Are Philadelphia Police Still Making Arrests Despite the Coronavirus?

Leigh Richards:

So the million dollar question, and let me preface it all by saying there is a rumor among the criminal community that nobody's going to be arrested, nobody's going to be prosecuted and they're running rampant, committing crimes. It hasn't stopped. They think they're untouchable. Am I right?

Zak Goldstein:

Almost. It's-

Leigh Richards:

It's anarchy.

Zak Goldstein:

At the beginning of all this, the Philadelphia police announced that they were going to stop making arrests and starting the court case for people accused of relatively less serious crimes. So this included a lot of less serious drug offenses, theft, maybe commercial burglary, stolen cars. What they've been doing is they've been arresting people, fingerprinting them, filing police reports, but not executing an arrest warrant and filing the court paperwork that actually starts a case. With the idea being that once the courts reopen, really that it would be safer rather than putting people in custody on less serious cases and requiring people to go to court where they could get exposed to the virus, they would start the actual court case once the courts reopened.

Leigh Richards:

Well, that is a wonderful way to define it. Unfortunately, they didn't get that message. Actually the word is on the street, free-for-all.

Zak Goldstein:

Right. I've seen some of that reported in the news. They did continue to make arrests in the more serious cases, domestic violence, gun cases, shootings. To the extent that they are able to figure out who did it, they've been making arrests. The policy changed a couple of weeks ago. So in terms of drugs and thefts and those types of things, they are now making arrests. I don't think we've hit the normal volume that you would have, I think both because some people are staying home and maybe there's some hesitation to go and knock on doors and get out of the police car when you're risking exposure to a deadly virus, which is probably understandable. But that policy of deferring the arrest has expired. They are now processing.

Leigh Richards:

I hope they get that word out because these people need to know this. I have these different apps where we get reports from citizens on the various crimes in the communities and car thefts are up. Theft from cars, vandalism, robberies. They haven't stopped. And now it's like the Wild West. They get to wear a mask. So even if they're caught on a video camera, they're wearing a mask.

Zak Goldstein:

Yeah. It's going to be tough to solve some of these cases when everyone's wearing a mask, but there's cameras everywhere these days. So they can follow somebody for a while on camera and they may get you if you take the mask off later or see what house you go into.

Leigh Richards:

If the police decide to look at it and if the district attorney gives his blessing to that. He seems to be a bit resistant in arresting people and prosecuting people. Is the word.

Zak Goldstein:

Well, Philly has been very concerned about the virus and the district attorney certainly is one of the country's most progressive prosecutors, and there's certainly pros and cons to that. I think anyone that says he's not prosecuting crimes is not really being honest there. I mean, they are taking many crimes very seriously. They certainly have had less of a priority on drug and theft crimes than previous district attorney's offices. But they are very serious on domestic violence. They are very serious on gun crimes and most crimes of violence. But they have taken a more progressive approach on drugs and property crimes.

Leigh Richards:

I am so happy to talk to you today. This is a fascinating subject because that was thrust upon us. It was because of the coronavirus that we're even discussing these things that a year ago wouldn't have been happening. So-

Zak Goldstein:

Even two months ago, when we last did this show, it was right before all of this. Who knew this would happen?

. . .

What should I do if I’m under investigation by law enforcement during the COVID-19 pandemic?

Leigh Richards:

So, and we're going to take a break in a couple of minutes, but if you think you're going to get arrested or you're under investigation during the pandemic, what should you do from the mouth of the attorney?

Zak Goldstein:

So the reality is that even if there are fewer cases in the system right now, there are serious cases still moving forward. Even if the courts aren't functioning as normal, there is going to come a day when the courts reopen and you're going to have to deal with these things. So you don't want to do anything now to make it worse. The basic advice of criminal defense is always that if you're under investigation for a crime, if you might be a suspect in a crime, you do not want to speak to a law enforcement agent without speaking with an attorney first. We can help give you advice on whether it makes sense to do something like that. Most of the time, it doesn't. We can help you try to avoid criminal charges or handle them in a way that reduces what you may be facing when the courts reopen. We can try to keep you out of custody in this time when being in custody is even more frightening than usual because prisons have really emerged as a hotspot for coronavirus infection.

. . .

Is Philadelphia letting people out of jail due to the virus?

Leigh Richards:

Yeah. And the word on the street is they're letting people out because of that. So even if you get arrested, they'll let you out. And what's to say they're not going to disappear? Some of these people are hard to find anyway.

Zak Goldstein:

They've let out, I think it's around 500 or maybe 800 people in the Philadelphia prison system, but it hasn't just been mass release of everybody. We've had to file petitions with letters from family members as to where clients are going to live, if they're going to be working some kind of essential life-sustaining business. We've had to really demonstrate that they've got somewhere to go because the judges are not just signing off on these. Sometimes even when the DA agrees to it, the judges are pushing back.

Leigh Richards:

Yeah. So many people disappear after they're arrested and they get out on bail and then they're scheduled for their plea trial this and blah, blah, blah. And then they disappear and they can't find them. That happens a lot.

Zak Goldstein:

It happens. That's my other advice. Running from the court is never going to do you any good. Your best bet is to get a good lawyer and deal with the charges.

Leigh Richards:

And that would be you.

Zak Goldstein:

Exactly.

. . .

Does the speedy trial rule apply while the Pennsylvania courts are closed due to the pandemic?

Leigh Richards:

Welcome back to Ask the Experts. I'm Leigh Richards with attorney Zak Goldstein, specializing in criminal law. I'm so happy to speak with you today. We have already discussed some of the misconceptions on the street about who's going to get arrested or not, and so forth and so on. Just to pursue that a little bit more, say somebody is arrested and they're put in jail and they're released because it's not such a bad crime. I mean, all crimes are bad, but not a violent crime. That's one thing. But what about the people who are in jail? They cannot have their trial. Don't we have a right to a speedy trial? Isn't that written somewhere?

Zak Goldstein:

So that has been the absolute most frustrating and difficult part of the virus for anyone in custody and for criminal defense lawyers, is that the first thing they did when they shut the courts down back in March, Pennsylvania has a speedy trial rule that requires every defendant to be brought to trial within 365 days. There are certain periods of time that don't count. If it's the judge's fault that it's a continuance, if the judge calls out sick, the time in-between court dates, won't count usually. If the defense requests a continuance to a new court date because the defense needs more time to investigate the case or find a witness, then that time doesn't count. And so the Supreme Court came out in their initial order and found that all time during this pandemic is considered a court continuance request as if the court were unavailable. And so that it's not going to count towards that 365-day speedy trial limit.

Leigh Richards:

That's not fair.

Zak Goldstein:

It's not fair. I have clients who are charged with very serious charges. It could be homicide, sex crimes, shootings, guns, those types of things. The courts have really not adequately addressed how we're going to move those cases forward. They're being held in custody, and the courts are trying to say that that time shouldn't count. So I think there will be litigation as things start to reopen in terms of whether there could be constitutional violations based on that.

Leigh Richards:

That's what I'm thinking.

Zak Goldstein:

But so far the judges have said this time is not going to count. Too bad. It's tough because they've suspended jury trials until at least September, and everyone has a right to a jury trial. So they really need to figure out a way to move cases forward, especially for people who are in custody because they're being held for an extended period of time.

Leigh Richards:

Yeah. It's very concerning. What is the status now of the courts reopening? We started this in the beginning. We started talking about it upfront. They were saying now certain clerks are coming back and paperwork is going to start to be processed, I think I heard this week even. But they're coming back very slowly. Very slowly.

. . .

When will the courts start to reopen?

Zak Goldstein:

It's slow. It really depends on the County. Chester County has announced full steam ahead. There's no jury trials out there until August, but they are starting off with everything else on the first date allowed by the Pennsylvania Supreme Court, which was June 1st. So some counties are trying to resume business as normal as soon as possible. Philadelphia has canceled anything that was previously scheduled for June. It sounds like they're looking towards July for a more solid date of reopening. But I've heard that they are going to start trying to do some hearings by video during the month of June, at least to start scheduling things, maybe some guilty pleas where it will get people out of jail, time served sentences, probation violations, those types of things. But at this point, it's looking like July before Philly's going to start with in-person hearings and at least September before there's jury trials. But it's all kind of up in the air until we have either a reliable treatment, a vaccine, or really widespread testing at this point.

Leigh Richards:

That's not going to happen that fast, according to the experts.

Zak Goldstein:

It doesn't look that way. There's been some good news recently, but it's all still pretty slow to implement.

Leigh Richards:

At the very least it's going to be months.

Zak Goldstein:

Right. Exactly.

Leigh Richards:

They can't just pull off any drug off the shelf that treats some other disease. You know what I mean?

Zak Goldstein:

Depends who you ask. But that's right. It's been a slow process, and part of the problem is that a jury trial involves, by definition, having a lot of people right on top of each other. You have to bring in at least 40 or 50 people just to pick the 12 plus two alternates that are going to serve on the jury. Then they're all in the confined space of a courtroom for an entire week or so, sometimes more, to hear a case. So it's a real problem. I'm not really sure what the answer is.

. . .

Prison Conditions in PA Due to Coronavirus

Leigh Richards:

Are the conditions in the jails really bad with the virus?

Zak Goldstein:

They're horrifying. Part of the problem is that in order to slow the spread of the virus in jails, the inmates are confined to their cells for almost 24 hours a day. So in addition to the fact that you have very little opportunity for social distancing, reduced access to soap or hand sanitizer or masks in jails, you also now are not being allowed normal recreation, time in the law library, as much access to the phone. There's no-

Leigh Richards:

Oh my goodness.

Zak Goldstein:

Visits with family members. The federal facilities have completely shut down even visits with attorneys because they don't want anyone going in and out. Some of the federal prisons and jails have really been hit hard. Philly is still allowing visits with attorneys, but there's no visits with family members. Jails are some of the most infected areas in terms of you have a lot of people together, not the best hygiene, and so you're seeing really an explosion of cases in jails, similar to meatpacking plants and that kind of thing.

Leigh Richards:

Oh, my word. Oh, my word. It's like out of a horror movie. But it is reality. Thank goodness there are criminal attorneys who will defend and protect to the best of their advantage. The best that you can.

Zak Goldstein:

We've been able to get a lot of clients out of jail. We've spent the last two months filing emergency petitions for bail, emergency parole petitions, motions to lift warrants and detainers. We've had a lot of success. Most of the judges have been receptive. The DA's office has been pretty reasonable, but not everyone. So they really need to find a way to get the courts moving.

Leigh Richards:

I imagine that if and when your clients actually get their trial, if things haven't progressed and it has to be done via telecommuting in some way, that's going to take the steam out of your sails. Because you can't get up there and get all wound up and present your case with all the bells and whistles as any of us would do if we were the defense attorney.

Zak Goldstein:

I just can't see that happening. I don't think we're ever going to hit a point where we can do it a jury trial by video. I think there are some types of hearings that may work by video. Preliminary hearings might work if someone's in custody. In Philadelphia, it's pretty common to have a trial and you let the judge decide instead of a jury. It's not necessarily common in the rest of the country, but for some reason Philadelphia, that happens a lot and the judges are pretty fair. So we may be able to do those types of hearings where it's more focused on a legal issue than whether or not somebody's telling the truth. But in terms of getting a jury trial hooked up by Zoom, I don't see how that's possible.

. . .

Will there be long-term changes in PA criminal courts due to COVID-19?

Leigh Richards:

What about any long-term changes as a result of all of this, even if we get a vaccine? What do you think, Zak?

Zak Goldstein:

One of the problems with the court system, especially in criminal cases is there are a lot of hearings that are really disruptive to the defendant's life, where they end up having to go to court 10 times for one case. Maybe even a misdemeanor case because there's status hearings, there's pretrial conferences, there's fights about discovery, there's cases where everyone knows in advance that the trial is not going to go forward that day, but they still require the defendant to appear and sign a subpoena. Hopefully the one thing we'll see, and the pressure may come from fears about the virus and wanting to spread people out, but that maybe it's not really necessary to have all these hearings where the defendant's required to be there and miss work and pay for childcare and all the negative things that come with that. Maybe they can reduce some of the numbers of these hearings or try to be a little bit more efficient in terms of how many times someone actually has to appear for court.

Leigh Richards:

Sometimes you only have to enter an appearance and leave and you have to go through all of that just to get to that moment.

Zak Goldstein:

Exactly.

Leigh Richards:

In defending people, not only during the coronavirus, but at any time as a defense attorney, how about we give some advice to people who may be dealing with the criminal justice system during this time.

Zak Goldstein:

So my advice right now is not the time to get involved with the system if you can avoid it. Because things are not moving quickly. There's not necessarily in-person hearings. Things may be done by video or based on paperwork. So the advice is stay out of trouble, but if it looks like there is trouble coming, or you've heard from a police officer, you've heard from some kind of state or federal agent, you really want to try to stay out of custody. The best way to do that is by hiring a lawyer early. We offer a free criminal defense strategy session to anyone who may be under investigation or who wants to know how they should respond to some kind of contact or request from law enforcement. We're happy to talk to you and give you advice on how you can stay out of custody and stay safe.