Philadelphia Criminal Defense Blog

Zak Goldstein 8/13/20 Zak Goldstein 8/13/20

PA Supreme Court: Commonwealth Bears Burden of Disproving Claim of Self-Defense in Gun Case

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Lineman, reaffirming its decision in Commonwealth v. Torres. The Supreme Court again held that if a criminal defendant properly raises the issue of self-defense, the Commonwealth has the burden of disproving that claim beyond a reasonable doubt. Further, it is not adequate for the fact-finder to merely disbelieve the defendant’s evidence of self-defense. The Commonwealth must produce actual evidence to counter a defendant’s self-defense claim. The Lineman decision is significant because it applies the logic of Torres to a possessory offense rather than just a crime of violence.

Commonwealth v. Lineman

A Philadelphia Police officer was on routine patrol when he received a radio call indicating that a male was screaming for assistance. The officer arrived on scene and observed the defendant and another male struggling on the ground. The defendant was lying on the ground with the other male on top of him. The officer ordered the male to get off the defendant. As the defendant began to stand he heard the sound of metal scraping the ground. The officer then looked at the defendant’s hand and saw that he was holding an Uzi. According to the officer, the defendant appeared to be under the influence of a controlled substance and was bleeding. The defendant was subsequently arrested for Violation of the Uniform Firearm Act § 6105 (“VUFA 6105”), Persons Prohibited from Possessing a Firearm.

The defendant elected to proceed by way of bench trial. At his trial, he testified in his own defense. Specifically, he testified that he and the other male had been drinking. Eventually, the other male became violent towards him and hit him in the face with the gun, which broke the defendant’s nose. The two then began to wrestle for the gun. The officer arrived while they were wrestling and this is what caused the fight to end. During closing arguments, defense counsel argued that the defendant was entitled to an acquittal because he raised the issue of self-defense and the Commonwealth did not present any evidence to rebut this claim as required by the case of Commonwealth v. Torres.

The trial court disagreed. The trial court stated that because this was a possessory offense, he could not raise a self-defense argument. The trial court did state that the defendant could raise a duress defense, but because he did not believe the defendant’s story it was not applicable to him. As such, he found the defendant guilty and sentenced him to three to seven years’ incarceration. The defendant then filed a timely appeal.

The Superior Court affirmed the trial court’s decision. In its decision, the Superior Court found that because the defendant was still in possession of the firearm after the police officer broke up the fight, this was sufficient to convict him of the charge of VUFA 6105. Undeterred, the defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the case.

Which side has to prove self-defense in Pennsylvania?

Commonwealth v. Torres is a Pennsylvania Supreme Court decision that was decided in 2001. The basic facts of the case were that the police arrived at a house in Philadelphia, PA after they received a radio call. When the police arrived on scene, they met with the complainant who said that the defendant had hit him in the head with a wrench. The defendant was about a half block away from the scene when the police arrived. While investigating the scene, the police were unable to locate a wrench. The defendant was then subsequently arrested and charged with simple assault.

The complainant never appeared to court. Nonetheless, the Commonwealth still elected to prosecute the case against the defendant by calling the police officers who arrived on scene. The officers testified that the complainant said the defendant hit him with a wrench. In response, the defendant testified on his own behalf and stated that he was acting in self-defense. At the conclusion of the trial, the trial court stated he disbelieved the defendant and found him guilty. The defendant then filed an appeal to the Pennsylvania Superior Court which affirmed his conviction. He then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which agreed to hear the case.

The Pennsylvania Supreme Court reversed the lower courts’ decisions and vacated the defendant’s conviction. The Court stated that when a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove that claim beyond a reasonable doubt. According to the Court, the Commonwealth must produce some evidence to dispute this claim. Further, the Court specifically stated that it is not sufficient for the trial court to not believe the defendant. Therefore, because there was no evidence on the record to contradict the defendant’s claim that he was acting in self-defense, the defendant’s conviction could not stand and thus was vacated. It is important to note that the defendant in Torres was not charged with a possessory offense (i.e. possessing a gun).

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court issued a slip opinion decision vacating the defendant’s conviction. In its opinion, the Pennsylvania Supreme Court specifically cited Commonwealth v. Torres as the reason why it was reversing the lower courts’ decisions. The Court did not provide any additional justification for its decision. Nonetheless, it is undisputed that the Court has now expanded Torres to include possessory offenses as well. As a matter of common sense, this decision makes sense. If someone is in danger and uses a weapon to protect themselves in self-defense, they should also be able to avoid a conviction for the possession of said weapon. Regardless of the logic of the decision, this decision is obviously favorable to the defendant because his conviction is now vacated, and he will be released from prison.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 7/21/20 Zak Goldstein 7/21/20

PA Supreme Court: Preliminary Hearing Requires More Than Just Hearsay

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has finally decided the case of Commonwealth v. McClelland, reversing the decisions of the Superior Court in Commonwealth v. Ricker and McClelland. The Court held that although some hearsay may be admissible at a preliminary hearing, the Commonwealth may not meet its burden of proving a prima facie case through hearsay alone. Prior to this decision, most Philadelphia judges required at least some real evidence at a preliminary hearing, but many magistrates throughout the rest of the state did not. This case restores the importance of the preliminary hearing, requires the Commonwealth to produce real evidence at the hearing, and protects the rights of the accused to confront the witnesses against them early in the criminal justice process rather than being forced to wait months or even years for trial.

Commonwealth v. McClelland

In this case, the defendant was charged with committing indecent assault, indecent exposure, and corruption of minors against an eight-year-old child. Specifically, the complaint alleged that on August 3, 2015, the child’s parents reported to the Pennsylvania State Police (“PSP”) that the child told them the defendant touched her face with his penis several months earlier. The child then later provided additional details about the incident during an interview with a Children’s Advocacy Center specialist, which led to the criminal charges against the defendant.

At the preliminary hearing, the Commonwealth did not call any actual witnesses with personal knowledge of anything. Instead, the prosecution called a Pennsylvania State Police trooper to testify. The trooper had not witnessed the assault and had only witnessed the interview of the complainant. The trooper summarized the contents of the complainant’s interview for the magistrate, and the magistrate held the case for court, meaning the defendant would have had to stand trial without any real evidence being presented at a preliminary hearing.

After the preliminary hearing, the defendant filed a petition seeking a writ of habeas corpus. The defendant argued that allowing the case to proceed to trial based solely on hearsay evidence violated his rights to confrontation and due process under the Pennsylvania and United States Constitutions. The trial court denied the motion, and the defendant filed an interlocutory appeal to the Superior Court. The Superior Court affirmed the lower court’s decision denying the defendant’s writ of habeas corpus. In Commonwealth v. Ricker, a panel of the Superior Court had held that the right to confrontation does not apply at a preliminary hearing and a defendant could be held for court based solely on hearsay. In this case, the Superior Court held that due process does not require the Commonwealth to produce any non-hearsay testimony at a preliminary hearing.

Undeterred, the defendant then filed a petition for writ of allowance to the Pennsylvania Supreme Court. The defendant argued that allowing the Commonwealth to only present hearsay evidence at a preliminary hearing violated his due process rights. Specifically, the defendant argued that the Pennsylvania Supreme Court’s decision in a much older case called Commonwealth v. Verbonitz governed this issue, that the Superior Court could not overrule a decision of the Supreme Court, and that the Commonwealth could not meet its burden at a preliminary hearing on hearsay evidence alone without violating due process rights.

The Commonwealth’s Response

On appeal, the Commonwealth argued that the Pennsylvania Supreme Court should adopt the holding of Commonwealth v. Ricker which allowed the Commonwealth to meet its burden at the preliminary hearing on hearsay only. The logic of Ricker is that Rule 542(E) of the Pennsylvania Rules of Criminal Procedure, which was amended in 2013, permitted the Commonwealth to meet its burden on hearsay evidence only because it states “[h]earsay evidence shall be sufficient to establish any element of an offense, including, not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.”

Additionally, it was the Commonwealth’s position that proceeding by hearsay alone does not violate a defendant’s due process rights because preliminary hearings are not constitutionally required. Finally, although the Pennsylvania Supreme Court addressed this issue in Commonwealth v. Verbonitz, it was the Commonwealth’s position that the decision was a plurality decision in which no majority of judges actually found that hearsay could not be used at a preliminary hearing. As a plurality decision, Verbonitz was arguably not a binding decision, and therefore the Commonwealth argued that the Pennsylvania Supreme Court could depart from it.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court rejected the Commonwealth’s arguments and held that the Commonwealth cannot meet its burden at a preliminary hearing using hearsay evidence alone. As a preliminary matter, the Pennsylvania Supreme Court dismissed the argument that Rule 542(E) permits the Commonwealth to use hearsay to satisfy all the elements of the alleged crimes at a preliminary hearing. The Court specifically held that although Rule 542 is “not the model of clarity,” it does not permit the Commonwealth to establish its entire case at a defendant’s preliminary hearing. Additionally, the Pennsylvania Supreme Court reviewed Verbanowitz and recognized: “[w]e have little difficult in stating with certainty that five justices [a majority]…agreed a prima facie case cannot be established by hearsay alone.”

Further, the Court found that the primary purpose of a preliminary hearing is to protect an individual’s right against unlawful arrest and detention. The preliminary hearing is a “critical hearing” and not a mere formality. As such, due process requires that the Commonwealth present more than just hearsay evidence at the preliminary hearing. Therefore, the case against the defendant was dismissed as the Commonwealth had presented nothing more than hearsay. The Court also disapproved of Ricker, meaning that defendants will likely have substantially increased rights to confront witnesses and challenge the evidence against them at preliminary hearings throughout Pennsylvania.

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Zak Goldstein 5/24/20 Zak Goldstein 5/24/20

PA Supreme Court: Reckless Introduction of False Evidence Bars Retrial of Wrongfully Convicted Defendant

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that the Pennsylvania Constitution’s Double Jeopardy Clause bars a retrial where the original conviction was based on false evidence and prosecutorial misconduct occurred in the form of prosecutors acting recklessly with respect to seeking the admission of the false evidence. This is an important case which sharpens the teeth of PA’s Double Jeopardy Clause and which provides some accountability for prosecutors who introduce evidence at trial that turns out to be false.

The Facts of Johnson

In Johnson, the victim, Walter Smith, told the police that a man named Clinton Robinson had killed a woman named Margaret Thomas. Later that year, Smith was shot and killed outside of a Philadelphia bar. Based on the ballistics evidence, police believed that there were multiple shooters. Police also found a red baseball cap near Smith’s body.

Debbie Williams, a friend of Smith’s, went to the police station and made a statement to Philadelphia police. She claimed that as they left the bar, there were numerous people outside on the sidewalk or in the street. A man who was wearing a red article of clothing pushed past her towards Smith. She heard shots, so she ducked, and she did not see the shooting. She then saw people run away. After the gunshots, she saw the person who had been wearing the red hat run past her, as well. She went to Smith’s body and picked up his baseball hat, which had a hole in it. The police arrived soon thereafter and took her to the station. She gave the hat to the police.

The case was not solved until 2005. In 2005, a jailhouse informant named Bryant Younger, who was under indictment in a federal drug case, told police that he heard the defendant, who was also in custody, make statements implicating himself in Smith’s murder. The police obtained the defendant’s DNA and compared it to DNA recovered from the red hat. They found that there was a match.

The Commonwealth then somehow got confused and failed to realize that there were two hats – a red hat which was found in the street, and a black hat which Smith had been wearing. The black hat had been tested and in fact had Smith’s blood and DNA on it, and the red hat had the defendant’s DNA on it. But somehow the Commonwealth believed that there was one hat with both men’s DNA on it. The Commonwealth arrested the defendant and charged him with first-degree murder, conspiracy, and possessing an instrument of crime. The case went to trial, and at trial, the Commonwealth’s crucial piece of evidence was the red hat with the DNA on it.

However, due to the Commonwealth’s apparent confusion, the prosecutor argued that the shooter, who was wearing the red hat, must have gotten in close to Smith and shot him, leading both to his own DNA being on the red hat as well as Smith’s blood. This was wrong because Smith’s blood was not actually on the red hat; it was on the black hat.

Nonetheless, the DNA analyst also testified that Smith’s blood and the defendant’s DNA were both found on “the hat.” The defendant’s attorney somehow never challenged the underlying premise that there were two hats. He argued that the DNA may not have been reliable and that no one actually saw the defendant commit the shooting. The prosecution emphasized that the decedent’s blood was on the same hat as the defendant’s DNA in closing argument. The jury convicted, and the court sentenced the defendant to death.

The Post-Conviction Relief Act Litigation

The defendant eventually filed a PCRA Petition after his attorneys uncovered the fact that there had been two hats and the decedent’s blood was only on the black hat. The Commonwealth agreed that the defendant should receive a new trial and also agreed not to seek the death penalty. The court granted a new trial.

Discovery Motions and Double Jeopardy Motions

The defendant then began filing discovery motions based on the finding of the two hats. The motion eventually evolved into a motion to dismiss on double jeopardy grounds due to prosecutorial misconduct in introducing false evidence – the false evidence being that there was only one hat. This led to various evidentiary hearings at which the prosecutors and detectives involved in the original trial had to testify. It quickly became clear to the court that the Commonwealth had not intentionally misstated the evidence but had gotten confused and believed that there was only one hat. Some police officers, however, had also exaggerated the evidence if not completely misstated it.

Following the evidentiary hearing, the defendant moved to dismiss the case. One officer had exaggerated the extent to which he saw blood stains on the red hat, and the other detectives and prosecutors believed that there was only one hat despite the fact that the Commonwealth clearly had two hats in its possession with separate property receipt numbers. He argued that regardless of whether the mistake was intentional or reckless, he had to spend nine years on death row, and the case should therefore be dismissed. The Commonwealth agreed that mistakes were made, but it argued that the mistakes had not been intentional, so it should be permitted to retry the defendant.

The trial court denied the motion to dismiss on double jeopardy grounds. It found that the Commonwealth had acted recklessly, not intentionally, and because the Commonwealth had not acted in bad faith, the double jeopardy clause did not apply. It did, however, permit the defendant to appeal prior to the re-trial by finding that such an appeal would not be frivolous. The Superior Court affirmed, and the defendant appealed further to the Pennsylvania Supreme Court. The Supreme Court accepted the case and reversed the conviction.

The Supreme Court’s Ruling

The Court barred the prosecution of the defendant and dismissed the charges against him.

First, it accepted the trial court’s findings that prosecutors had not acted intentionally but had acted either recklessly or with gross negligence. They had not conspired to deprive the defendant of a fair trial, but they had made so many inexplicable mistakes that the mistakes rose to a level of more than just ordinary negligence.

Second, the Court found that the Pennsylvania Constitution provides greater protections than the United States Constitution. Federal appellate courts have found that the United States Constitution requires intentional misconduct in order for the double jeopardy clause to apply and bar a retrial. But the Supreme Court found that Pennsylvania’s Constitution bars a retrial where the first conviction was vacated as a result of prosecutorial misconduct that occurred recklessly.

The purpose of the double jeopardy clause is not only to penalize prosecutorial error, but also to protect citizens from the embarrassment, expense, and ordeal of a second trial for the same offense. It should also prevent compelling them to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent they may be found guilty.

When the government engages in improper actions sufficiently damaging to undercut the fairness of a trial, it does not matter much to the defendant whether the prosecution did it on purpose. Therefore, the double jeopardy clause applies to bar retrial both when the prosecution acts intentionally as well as recklessly. Because the prosecution here clearly acted recklessly, the Commonwealth could not re-try the defendant, and the Court dismissed the case.

Do you need a criminal lawyer in Philadelphia, PA? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/19/20 Zak Goldstein 5/19/20

Criminal Defense Attorney Zak Goldstein Appears on Ask The Experts to Answer Questions on Philadelphia Criminal Courts and the Coronavirus Pandemic

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.