A blog of the Philadelphia Bar Association’s Criminal Justice Section

Archive for April, 2013

Politico: Five legal questions for Tsarnaev

With Dzhokhar Tsarnaev taken alive, the focus now turns to how the Obama administration is going to seek to bring the Boston Marathon bombing suspect to justice.

Lawyers have already made one potentially critical decision: he hasn’t been read his Miranda rights, at least for now. This means that FBI investigators may have a shot at trying to question him about other potential plots he may be aware of and whether anyone other than his deceased brother was involved in Monday’s bombing or Thursday night’s crime spree.

Read more: http://www.politico.com/story/2013/04/no-miranda-rights-for-now-for-bombing-suspect-90362.html#ixzz2R3lXSUAD

Legislative Report for April 22, 2013

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Session schedule

The House meets Monday, Tuesday and Wednesday.  The Senate is recess until April 29.

Bills moving

Child Protection: House Bill 431 (Gingrich-R-Lebanon) further providing for training in child protection– a summary and House Fiscal Note are available– and House Bill 432 (Gingrich-R-Lebanon) further providing for child abuse– a summary and House Fiscal Note are available–were passed by the House on April 17, by votes of 191-0.  The bills now go to the Senate for action.

Human Trafficking: House Bill 663 (Ellis-R-Butler) further providing for the definition of commercial sex and human trafficking was removed from the Table and referred to the House Appropriations Committee.

Child Abduction: Senate Bill 689 (Corman-R- Centre) providing for prevention of abduction of children was referred to the Senate Appropriations Committee.

Sexual Violence: Senate Bill 681 (Greenleaf-R- Montgomery) further providing for the protection of victims of sexual violence was referred to the Senate Appropriations Committee.

Senate Judiciary Committee to hold hearings on determinate sentencing in Philadelphia

Senate Judiciary Committee holds a hearing on the concept of determinate sentencing. April 25, 10 a.m., Philadelphia Bar Association, 11th Floor Conference Center, 1101 Market St., Philadelphia. 10:00.

Will Canadian woman be required to remove her veil before testifying in sex abuse case?

First test of Supreme Court’s new face-veil rules imminent

Testifying without a veil over closed-circuit TV is one option being considered in Toronto sex-abuse case

By Laura Lynch CBC News 

Posted: Apr 19, 2013 5:40 AM ET 

Last Updated: Apr 19, 2013 8:51 AM ET 

Read 256comments256

An artist's rendition of the N.S. case, which dates back to 2008. An artist’s rendition of the N.S. case, which dates back to 2008. (CBC)
 
Laura Lynch

Laura Lynch

Correspondent

It is a long way from the grandeur of the Supreme Court of Canada in Ottawa to the grey, gritty neighborhood in north Toronto where a courthouse shares space with a Swiss Chalet chicken restaurant, the office of an MP and a catering company.

Yet it is here, near busy highways and interchanges, that an important legal precedent may be set in the next few days in the wake of a ruling from Canada’s top court.

The issue: Can a Muslim woman be ordered to testify without her face veiled?

This week, six years after it all began, a Toronto woman known only as N.S. was back in court with those she accuses of sexually abusing and assaulting her as a child, and with the same judge who ordered her to remove her face veil — or niqab — to testify.

Justice Norris Weisman is promising a decision soon, as the case is set to start on April 29. One of the options he proposed is having the woman testify without the veil over closed-circuit television.

However, her lawyer says her religious beliefs mean she must leave it on, closed-circuit TV or not, while the lawyers for the accused say they cannot get a fair trial unless they, and the court, can see her facial expressions as she testifies.

Judge Weisman’s 2008 order — that N.S. had to remove her niqab while on the stand — was appealed all the way up to the Supreme Court in Ottawa. In December, it delivered a split decision, handing the dilemma back to individual trial judges to determine on a case-by-case basis.

The majority ruled that trial judges, in this case Judge Weisman, must conduct a four-part test in order to decide whether a Muslim woman can be allowed to wear her niqab while testifying.

  • Does she have a sincere belief in her religion?
  • Does wearing a veil create a serious risk to trial fairness?
  • Is there any other way to accommodate her?
  • If no, does what the court called the “salutary” effects of ordering her to remove her niqab outweigh the “deleterious” effects of doing that?

N.S. case to resume April 29

Courts in Canada have long dealt with competing rights and religious freedoms, but this particular case has led to a vivid clash of basic principles, and that clash was on display again in courtroom number 210 earlier this week.

The complainant, N.S., arrived wearing her niqab and a black floor-length cloak known as an abaya. The two accused, one wearing a Muslim prayer cap and the other a black leather jacket, sat on the other side of the small courtroom, a Hindi-language interpreter between them.

‘A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained’—Supreme Court of Canada, December 2012

For this hearing, N.S. was allowed to wear her veil as she took the stand to testify about her religious beliefs.

She has worn the niqab for almost 10 years, the 37 year old said, saying it is something she must do as part of Sunnah — a way of life based on the teachings of Muhammad.

The judge, unfamiliar with the concept, asked N.S. to spell the word.

“Islam is not a religion of extremism,” she said, so she had felt comfortable removing the veil when she suffered from morning sickness or allergies.

She has also removed her niqab for her driver’s licence and passport photos, and for police and border guards, she added, calling it acceptable because she did not have a choice.

She also allowed that she lifted it when driving, though put it back in place when she was stopped in traffic.

Yet to remove the veil in court to testify about sexual abuse allegations would create a “sexual environment” that would be prohibited by her religion, she said.

Visual clues

During the hearing, defence lawyers argued that her willingness to remove the niqab in some circumstances suggested her religious belief was less than sincere and certainly not enough to warrant interference with their right to a fair trial.

Her lawyer though, described her as forthright and sincere, calling her a “straight-up gal” at one point.

But how can a judge or a jury assess N.S.’s credibility if no one can see her face and her expression, asked defence lawyers.

With the niqab in place, “the set of a jaw, a smirk, a smile, all these visual clues are eliminated,” said defence lawyer Douglas Usher.

The judge asked the lawyers to consider a compromise, testifying via closed-circuit television.

The defence agreed, but the lawyer for N.S., David Butt, said no as it would still lead to her “objectification and sexualization” just as much on television as in person.

Now, it is up to Judge Weisman to once again decide whether the niqab stays or goes.

While the stakes are high for N.S., the decision will also be studied across Canada.

Some advocates for abuse victims say a ruling forcing N.S. to remove the veil will discourage other Muslim women from seeking justice, while others contend that allowing the veil will invariably damage the right to make full answer and defence against charges.

As the judge adjourned to prepare his ruling, he told both the complainant and the accused that he was sensitive to the stress they were facing, given how long this case has taken.

For him, this ruling will likely amount to a judicial swan song. About to turn 75, Judge Weisman is set to retire on May 1.

http://www.cbc.ca/news/canada/story/2013/04/18/lynch-niqab-sex-abuse-case.html

 

House Bill 683 raises First Amendment concerns for photographers, bloggers, journalists

Pennsylvania Flag

House Bill 683, providing for the offense interfering with agricultural operations, raises civil liberties and First Amendment concerns, particularly for photographers, bloggers and journalists.

The bill would prohibit a person from entering upon an agricultural operation or leaving a recording device on an agricultural operation in order to record sounds and images.   The bill would prohibit uploading or downloading such sounds and images from the internet.  The bill would prohibit undercover operations whereby a person would gain employment or use false pretenses to enter an agricultural operation in order to record sounds and images.  The bill would prohibit the recording of sounds and images while committing a criminal trespass on an agricultural operation.    Violations of the proposed bill would be a felony of the second or third degree.  The bill requires that the actor not have the consent of the owner of the agricultural operation or its agent.

The anti-fracking community has expressed concern about the bill.   I see the bill raising First Amendment concerns as it would prohibit the taking of photographs and the reporting activities of professional journalists, amateur journalists, bloggers and You Tube contributors.

The bill was introduced on February 12 and remains in the House Judiciary Committee.   Click for text of House Bill 683

Superior Court reverses on grant of suppression

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By Burt Rose

Click for Opinion

In Com. v. Buchert, 2013 WL 1499347, 2013 PA Super 81, 329 EDA 2012 (4/12/13), the Superior Court reversed the grant of suppression by Judge Paula Patrick of the Court of Common Pleas of Philadelphia, Criminal Division CP–51–CR–0008730–2011. The Panel was composed of Judges BOWES, GANTMAN, and MUSMANNO. Judge Bowes wrote the Opinion.

The Commonwealth presented the following question on appeal: Where police officers conducted a valid traffic stop of a car in which defendant was a passenger and, as the officers approached the car, defendant bent forward and reached under the seat, then appeared very nervous, did the lower court err in suppressing the gun found under defendant’s seat during a protective search of the area within his immediate control?

The answer was yes. The combination of Appellee’s furtive movement of leaning forward and appearing to conceal something under his seat, along with his extreme nervousness and the night time stop, was sufficient to warrant a reasonable police officer to believe that his safety was in danger and that Appellee might gain immediate control of a weapon.

Supreme Court rules on warrantless blood tests in DUI cases

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By Burt Rose

Click for Opinion

THE SUPREME COURT OF THE UNITED STATES has decided the matter of MISSOURI, PETITIONER v. TYLER G. MCNEELY, No. 11–1425 (April 17, 2013). JUSTICE SOTOMAYOR delivered the opinion of the Court in which JUSTICE SCALIA, JUSTICE GINSBURG, and JUSTICE KAGAN joined in part.

 

In Schmerber v. California, 384 U. S. 757 (1966), the Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence. The question presented here was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. The Court concluded that it does not and  held that exigency in this context must be determined case by case based on the totality of the circumstances.

 

The Court rejected the State’s argument that so long as an officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant. Although it is true that because an individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results, in those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. The Court noted however that exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances; the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.

 

Thus the Court held that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

 

Pennsylvania Innocence Project—4th Anniversary Celebration

The Pennsylvania Innocence Project will celebrate its fourth anniversary with a program entitled “Voice of Innocents,” May 8, at the National Constitution Center from 6 to 9 p.m.

Click for website

Pennsylvania Innocence Project
4th Anniversary Celebration
Voices of Innocents

When
Wednesday May 8, 2013
6:00 PM to 9:00 PM EDT
Reception Dinner

Where
National Constitution Center
525 Arch Street
Philadelphia, PA 19106

Driving Directions

Click on the date to save the event in your calendar.
Wednesday May 8th

Many people experience injustice in their lives. Some are vanquished by it. Others withstand, resist, and overcome it. Those who are not defeated, they mostly go on with their lives, often with their spirits depleted, their material resources exhausted.

For a few, however, the personal encounter with injustice somehow makes them better and bolder. They emerge from their personal trial with a sharper perception, a wider vision, a deeper sympathy, with spirits in full sail.

They are the voices of innocents.

On behalf of our Event Chair, Carolyn P. Short, please join the Pennsylvania Innocence Project for our 4th Anniversary party onWednesday, May 8th, as we celebrate those who provide a voice for individuals convicted of crimes they did not commit and prevent innocent people from being convicted.

2013 Honorees

Hero of Justice Award
Denise Foderaro Quattrone

Maureen Rowley Award
Charlotte Whitmore

Special Performances by:

William Dillon: Wrongfully convicted of murder in 1981 and exonerated through DNA testing in 2008, he is now a songwriter and performs songs that speak to the pain, sorrow and injustice of a lifetime lost.

http://www.williammichaeldillon.com/

Philadelphia Girls Choir featuring “Songs of Freedom”

http://www.phillygirlschoir.org/

If you have questions about the anniversary celebration
please contact Bread & Butter Productions at rsvp@bandbp.com.
If you are interested in becoming a sponsor, see the information below.

 

Superior Court rules on AA-DUI

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By Burt Rose

Click for Opinion

The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Roland A. SPOTTI, Jr., Appellant, 2013 WL 1490996, 2013 PA Super 83, 677 WDA 2011 (April 12, 2013). This was an appeal from a Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, CP–02–CR–0010771–2009. The appeal was before Judges BENDER, DONOHUE, and STRASSBURGER. Judge Bender wrote the Opinion while Judge Strassburger dissented.

Spotti appealed from an aggregate sentence of 2–4 years’ incarceration following his convictions for four counts of aggravated assault by vehicle while driving under the influence of alcohol (AA–DUI), 75 Pa.C.S. § 3735.1, and related offenses. The Panel held that Appellant’s conduct was an indirect cause of victims’ injuries, and thus, Appellant could not be held criminally liable for AA-DUI.

This matter arises from an accident that occurred on State Route 376 East, a four-lane highway in Allegheny County. At 9:30 p.m. that evening, emergency services received multiple reports that Appellant’s vehicle was driving erratically. One witness, Elise Blackwell, was advised by emergency services to follow Appellant with her hazard lights flashing in order to assist law enforcement in identifying the Appellant’s vehicle. Blackwell complied, but remained several vehicles behind Appellant’s. Meanwhile, Steven Chung also contacted emergency services, and he began following directly behind Appellant’s vehicle.

Responding State Trooper Thomas W. Armour was able to locate Appellant’s vehicle once he observed Blackwell’s hazard lights. He pursued Appellant’s vehicle in the left lane with his siren and lights activated, but he was still a few vehicles behind Appellant’s. Trooper Armour observed Appellant’s vehicle repeatedly swerve into the right lane of traffic.

Once Trooper Armour arrived, Chung merged his vehicle into the right lane. Immediately thereafter, Appellant’s vehicle swerved into the right lane and braked suddenly, leading Chung to veer right again in order to avoid colliding with Appellant’s vehicle. Chung then collided with a van parked on the side of the road, and the van struck a tow truck that was there to assist the disabled vehicle. Richard Benchoff and Eric Hamilton were severely injured as they were changing a tire on the van when the accident occurred. Chung and his passenger, his sister Susan Chung, were also injured.

Appellant, who claimed to be unaware that the accident had occurred, drove on until Trooper Armour subsequently pulled him over. Appellant was transported to Ohio Valley hospital where his blood was drawn. The blood was tested by the Allegheny County Crime Lab, which determined that Appellant’s blood alcohol content (BAC) was 0.203.

On appeal, Appellant’s argument was that his vehicle did not collide with either of the victims’ vehicles and thus his conduct cannot constitute a direct cause of the victims’ injuries. He argued that Chung’s conduct constituted a sufficiently independent intervening cause of the accident that broke any chain of causation reaching back to Appellant’s conduct.

The Commonwealth’s evidence demonstrated Appellant’s intoxication at the time of the incident, that Appellant’s driving was erratic and, therefore, that there was a permissible inference left for the jury to determine if the intoxication was the direct and substantial cause of the erratic driving. The problem in the causal chain is that Appellant’s vehicle did not collide with any of the victims or their vehicles, nor were there any victims in Appellant’s vehicle.

There was sufficient evidence that Appellant’s intoxication was a direct and substantial factor in causing his erratic driving (swerving and braking suddenly) and that the erratic driving was a substantial cause of Chung’s change of course. However, the nature of that causation was indirect.

The statute in question here required proof of causation of the injury as an element of the offense. The uncontroverted evidence here established that Appellant did not collide with any of the victims or their vehicles. Although he was responsible for creating a high level of risk that such injuries could result spawned by the necessity of others’ actions to avoid his erratic behavior, such a relationship in causation was inherently indirect. Accordingly, the Court concluded that the Commonwealth failed to produce sufficient evidence to sustain Appellant’s convictions for AA–DUI.

Joseph Evers appointed interim court administrator for FJD

News for Immediate Release
April 10, 2013

HARRISBURG—The Pennsylvania Supreme Court has approved the recommendation of the First Judicial District’s (FJD) Administrative Governing Board to appoint Joseph H. Evers as interim court administrator of the FJD until a full-time replacement is hired.

Evers, 58, of Philadelphia, is a 40-year veteran of the Philadelphia court system.  He was appointed prothonotary for the FJD in 1995 and has also served as clerk of courts since 2010.
Before becoming prothonotary he was a deputy prothonotary, the data processing coordinator for the Office of the Prothonotary and assistant supervisor and data entry clerk in the civil division of the Common Pleas and Municipal Court. Evers will continue to serve as the FJD prothonotary and clerk of courts in addition to his duties as court administrator.

Evers will replace district court administrator David D. Wasson who is resigning effective April 19 to join the City of Philadelphia’s Office of Innovation and Technology.

# # #
Contact: Amy Kelchner, 717-231-3328

Superior Court rules on Faretta rights

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By Burt Rose

Click for Opinion

The Superior Court of Pennsylvania has granted a new trial in the case of COMMONWEALTH of Pennsylvania v. Willie Lee BROOKS, Appellant,2013 WL 1450492, 2013 PA Super 76, 1135 EDA 2012 (April 10, 2013). This was an appeal from a Judgment of Sentence of Judge Michael Coll of the Court of Common Pleas of Delaware County, Criminal Division, CP–23–CR–0000811–2009. The Panel was composed of Judges LAZARUS, OTT and STRASSBURGER. Judge Lazarus wrote the Opinion.

A jury convicted Brooks of four counts of criminal attempt to commit homicide, aggravated assault, possession of an instrument of crime and one count of loitering and prowling at night. The trial judge sentenced him to an aggregate 42 to 84 year sentence to run consecutively to a 22–year federal sentence Brooks was then serving.

As jury selection was to begin, Brooks informed the court that he preferred to proceed pro se but only if granted a continuance to prepare his case.  The trial court judge denied the continuance on the grounds that over a year had elapsed during which Brooks had been represented by counsel. During the discussion between the judge, Brooks, and Brooks’ counsel, Brooks indicated that he felt compelled to proceed with counsel since he did not have time to prepare his case. Jury selection proceeded and Brooks was convicted.

On appeal, Brooks argued that the trial court erred in failing to grant him a continuance so that he could prepare his pro se defense.

The decision to grant or deny the continuance impacts Brooks’ Sixth Amendment right to proceed pro se, as established by the U.S. Supreme Court in Faretta v. California, 422 U.S. 806 (1975). To invoke his Faretta right to proceed pro se, a defendant must first knowingly, voluntarily, and intelligently waive his Sixth Amendment right to counsel. In order to invoke the right of self-representation, the request to proceed pro se must be made timely and not for purposes of delay.

Brooks made his request before jury selection had begun, and it was therefore timely. Indeed, the trial court judge began delivering the Faretta colloquy, suggesting that he believed the motion was timely and equivocal. Brooks’ request was, however, conditional. Brooks indicated during the colloquy that while he wanted to proceed pro se, he felt he had no choice but to proceed with appointed counsel unless he received a continuance to prepare his defense. The trial judge refused the continuance after extensive discussion, despite the objection of Brooks’ appointed counsel.

Attempting to delay the trial is one ground for dismissing a petition to proceed pro se, but by definition, a request for a continuance is to seek a delay. By coupling a request to proceed pro se with a request for a continuance in order to properly prepare, it would be absurd to find that the second request automatically negates the first. The intention of the defendant is critical, and the trial court must determine if the motion to proceed pro se with a continuance is a reasonable attempt to delay the proceedings for the legitimate purpose of preparing a defense, or if it is intended to obstruct the process of justice and frustrate the operation of the court.

The Superior Court first examined the pro se motion to determine whether it was timely, equivocal, and intended to delay the proceeding. Brooks made a timely and unequivocal request to proceed pro se. The only issue remaining was to determine whether Brooks intended to delay the proceedings improperly. The trial judge concluded that the motion “was a mere ploy for a delay of the trial.” The judge noted that the pre-trial conference was continued six times, and that the trial itself continued from July 18, 2011 to August 15, 2011.

While giving deference to the trial court, Judge Lazarus found little support in the record for the contention that Brooks was engaged in an improper attempt to delay his trial. Of the six continuance motions, three suggested that Brooks was not even in the courtroom, as in the place of Brooks’ signature is written “ATTY WILL NOTIFY DEF.” The proceedings were delayed by waiting for federal authorities to forward relevant records. On the first day of trial, Brooks’ counsel told the court that four days earlier he had received “140 pages of transcripts from Federal Court which Brooks had not had a chance to read.” This also supports a finding that there was delay in obtaining documentation regarding the related federal prosecution of Brooks. None of this suggested that Brooks was engaged in an improper attempt to delay or frustrate the proceedings.

The denial of the continuance impacted Brooks’ exercise of his Faretta right. Generous time for counsel to prepare cannot automatically be equated with sufficient time for a defendant to prepare to proceed pro se. If a defendant was expecting to go to trial represented by counsel, only to decide to dismiss counsel relatively late in the process, he would have had no reason to prepare. Even if the defendant could be reasonably expected to know the basic legal issues of the case due to working with counsel, there would have been no reason for the defendant to familiarize himself with the rules of evidence and criminal procedure.

Therefore, when faced with a request to proceed pro se, conditioned upon a request for a continuance in order to be prepared for trial, the trial court must examine the request in light of the impact of denying that continuance on the defendant’s Faretta right. Where the court finds that the defendant is engaging in improper delay, the court must place sufficient evidence on the record to support this conclusion. The trial court failed to do so in this case. Absent a compelling reason supported by the record, the denial of the continuance violated the Faretta right of the defendant, and was an abuse of discretion. Because a violation of Faretta is subject to automatic reversal, the Superior Court reversed the conviction.

Richard S. Packel, Esquire of Media represented the Appellant.

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