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

Senate

In Re: Order Amending Rules 906 and 1911 of the Pennsylvania Rules of Appellate Procedure – No. 265 Appellate Procedural Rules Docket, concerning orders for transcripts, concerning preliminary arraignments.

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In Re: Order Amending Rule 540 of the Pennsylvania Rules of Criminal Procedure No. 483 Criminal Procedural Rules Docket

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John P. Delaney appointed to Criminal Procedural Rules Committee

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Pennsylvania District Attorneys recommend guidelines for police shooting investigations

 

The Pennsylvania District Attorneys Association Tuesday recommended that officer-involved shootings should be investigated by an independent agency and that the local District Attorney should provide the public with a written report following the completion of the investigation.

The recommendations are part of 16 guidelines established by Association’s Best Practices Committee dealing with processing, investigating and communicating determinations made in officer-involved shootings.

The Best Practices for Officer-Involved Shootings will provide prosecutors with recommendations to ensure investigations are conducted with independence and objectively. The guidelines are believed to be the first statewide guidelines for prosecutors produced in the United States.

The guidelines are the culmination of many months of work by the PDAA’s Best Practices Committee. Chaired by Chester County District Attorney Tom Hogan, the committee collected and reviewed the responses to police-involved shootings by law enforcement and prosecutors nationwide.

The committee also sought the input of community groups, police organizations, and prosecutors in making 16 recommendations.

The 16 recommendations and guidelines cover the broad spectrum of responses required following an officer-involved shooting, ranging from which agency should investigate and processing the scene to interview best practices and communication with the public.

There are also specific measures related to the injured parties.

“We are very pleased with the initiative that the District Attorneys are undertaking here,” said Deacon Gary Wattie of St. Paul’s Baptist Church in Chester County. “This opens the curtains to the process which hopefully will get better buy-in to the outcome, regardless of what it is.”

Highlights of the PDAA Officer-Involved Shooting Investigation Best Practices and the 16 recommendations include:

1. Investigations Should Be Independent: To ensure the integrity of the investigation of an officer-involved shooting, investigations should be conducted by an agency separate and independent from the law enforcement agency involved in the shooting. Officer-involved shooting investigations deal with complex and difficult facts that must be dispassionately examined. Utilizing an agency not affiliated with the incident (for example, county detectives, the Pennsylvania State Police, or a neighboring jurisdiction) will reassure the public that the investigation was conducted without bias or direct connection to the officer(s) involved.

2. District Attorneys Should Direct Investigations: Under the Commonwealth Attorneys Act, the District Attorney is charged with determining if any shooting is justified or if charges should be filed. Just as the DA must adjudicate and determine charges related to other shootings and violent crimes in their communities, their practical experience and professional responsibilities are vital components in the interviews and evidence-gathering that must take place following an officer-involved shooting. Accordingly, the recommendation is that the DA’s office directs officer-involved shooting investigations.

3. On-Site Safety and Security Is Essential: The first issue at every officer-involved shooting scene is the safety and security of all those involved and the community. Once the threat is neutralized, officers at the scene must render aid immediately to any and all injured parties. If a person is deceased at the scene, the police should shield the body from public view.

4. Utilize Best-Available Technology to Process the Scene: Officer-involved shooting scenes are often large and confusing. Detailed evidentiary review and documentation of the scene is the first and essential step to determining the facts, including the use of 3-D mapping of the entire scene. It also is important to capture and review all possible video recordings of the incident, including police recordings, recordings from nearby businesses or homes, and civilian recordings.

5. Communicate with the Public: The District Attorney may give a preliminary report on the status of the event after it happens, understanding that the detailed investigation may uncover more evidence. Once the full investigation has been completed, the District Attorney should report the findings to the public.

These guidelines do not address use-of-force policies for law enforcement. The use of force laws already have been addressed in detail by Pennsylvania statutes (18 Pa. Cons. Stat. Ann. §501 et seq.) and the United States Supreme Court (Graham v. Connor, 490 U.S. 386 (1989)).

Cambria County District Attorney Kelly Callihan stated, “The PDAA guidelines for officer-involved shootings reflect a straightforward, common sense, and balanced approach to these difficult events. Fortunately, many of the counties in Pennsylvania already have adopted these guidelines, so they have been tested and reviewed under the glare of real-life situations, and have been used successfully to reach fair and just outcomes.”

The PDAA’s Best Practices Committee serves as a collaborative, non-partisan network to identify best practices, research, and legal methods to assist in the proper and just evolution of the criminal justice system.

Created in 2014, the committee formalized the Association’s long history of identifying and promoting reforms and efficiencies in order to protect the innocent, convict the guilty, and ensure justice for the victims of crime.

The Best Practices Committee will periodically release other proposed best practices addressing important issues.

Last spring, it released guidelines regarding eyewitness identification. Other issues currently being reviewed by the Committee are body-worn cameras and recorded interviews.

(From Crisci Associates PA Capitol Digest)

House Subcommittee on Courts ends impeachment inquiry on Kathleen Kane, makes recommendations to improve Office of Attorney General

The House Subcommittee On Courts Thursday released a 5-page report by the four Republican members of the Subcommittee making recommendations on how to prevent actions in the future like those that happened to deter and, in some cases, prevent staff members from the Office of the Attorney General from fulfilling their duties under convicted Attorney General Kathleen Kane.

The Subcommittee stopped short of recommending Kane’s impeachment because she has already resigned and stands convicted of criminal charges.

The subcommittee’s recommendations include:

— Requiring the Attorney General of Pennsylvania at all times to possess a valid license to practice law in Pennsylvania, and requiring anyone who is contracted or employed by the attorney general’s office to provide legal services possess a valid license to practice law in Pennsylvania.

— Prohibiting attorneys in the Office of Attorney General from maintaining a private law practice.

— Clarifying that the first deputy shall be at the top of the chain of command and assume any duties the attorney general cannot fulfill.

— Providing for greater legislative oversight over government agencies to investigate wrongdoing and provide accountability and transparency.

— Providing an avenue for whistleblowers to report wrongdoing outside their own agency.

— Providing greater protections for whistleblowers.

— Providing explicit protections for individuals who cooperate with a legislative investigation.

— Reviewing the provisions concerning grand jury secrecy to prevent someone from using it as a shield to prevent accountability and/or transparency.

The investigation by the Subcommittee and resulting report were authorized by the adoption of House Resolution 659 (Everett-R-Lycoming).

Kathleen Kane served as attorney general from January 2013 until her resignation on August 16, 2016, following a jury verdict finding her guilty of perjury and other offenses the day before.

A copy of the report is available online.

(From Crisci Associates PA Capitol Digest)

Session Schedule

Senate

January 3 (swearing in day), 23, 24, 25, 30, 31

February 1, 6, 7, 8

March 20, 21, 22, 27, 28, 29

April 17, 18, 19, 24, 25, 26

May 8, 9, 10, 22, 23, 24

June 5, 6, 7, 12, 13, 14, 19, 20, 21, 22, 26, 27, 28, 29, 30

House

January 3 (swearing in day), 23, 24, & 25.

February 6, 7, & 8.

March 13, 14, 15, 20, 21, & 22.

April 3, 4, 5 , 18, 19, 24, 25, & 26.

May 8, 9, 10, 22, 23, & 24.

June 5, 6, 7, 12, 13, 14, 19, 20, 21, 22, 26, 27, 28, 29, & 30

(From Crisci Associates PA Capitol Digest)

Weeks Ahead

December 7-8– Commission On Sentencing.  See formal notice in the November 26 PA Bulletin for locations and time details.

December 10– Pennsylvania Society Dinner. Waldorf-Astoria, New York.

January 3– Opening Day Of 2017-18 Legislative Session.

(From Crisci Associates PA Capitol Digest)

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December 7, 1941.  Pearl Harbor attacked. U.S. enters World War II.

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Session Schedule

Senate 

January 3 (swearing in day), 23, 24, 25, 30, 31

February 1, 6, 7, 8

March 20, 21, 22, 27, 28, 29

April 17, 18, 19, 24, 25, 26

May 8, 9, 10, 22, 23, 24

June 5, 6, 7, 12, 13, 14, 19, 20, 21, 22, 26, 27, 28, 29, 30

House 

January 3 (swearing in day), 23, 24, & 25.

February 6, 7, & 8.

March 13, 14, 15, 20, 21, & 22.

April 3, 4, 5 , 18, 19, 24, 25, & 26.

May 8, 9, 10, 22, 23, & 24.

June 5, 6, 7, 12, 13, 14, 19, 20, 21, 22, 26, 27, 28, 29, & 30

The Weeks Ahead

December 7-8– Commission On Sentencing.  See formal notice in the November 26 PA Bulletin for locations and time details.

December 10– Pennsylvania Society Dinner. Waldorf-Astoria, New York.

January 3– Opening Day Of 2017-18 Legislative Session.

(Source:  Crisci Associates PA Capitol Digest)

Annual Pennsylvania Rules of Evidence Refresher with Professor Jules Epstein

CLE Annual Pennsylvania Rules of Evidence Refresher

Hosted by the Criminal Justice Section

This annually anticipated and widely acclaimed one hour evidence law refresher, presented by Professor Jules Epstein, will examine recent evidence decisions in Pennsylvania, as well as the law of witness and mental health record privilege. Professor Epstein will also highlight new developments in the area of forensic science evidence in the courtroom.

Tuesday, November 29.   Lunch and registration begins at noon.  Course 12:30 to 1:30 p.m., 11th Floor Conference Center, Bar Association, 1101 Market Street

Click to Register

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BY MARC LEVY, Associated Press, November 21, 2016                                                                        Click to full report from abc27.com

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HARRISBURG, Pa. (AP) – Democratic Gov. Tom Wolf is vetoing legislation that would have restricted the situations in which police officers are identified after firing their weapon or using force that results in death or serious injury.

Wolf rejected the legislation Monday, after it passed both the Republican-controlled House and Senate by veto-proof majorities last month.

In his veto message, Wolf says the law would have withheld important information from the public. He says he’s deeply concerned for the safety of police officers, but that police departments are best equipped to decide what information is appropriate to release to the public.

The bill mandated the release of the officer’s name if he or she was charged with a crime. But the officer’s name could’ve been withheld if an investigation didn’t produce charges.

Representative White to reintroduce the bill

BY MILES SNYDER, 27abc.com, November 21, 2016                                                                               Click for full report from 27abc.com

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HARRISBURG, Pa. (WHTM) – A Pennsylvania lawmaker is vowing to reintroduce legislation that restricts when police officers are identified after firing their weapon or using force that results in death or serious injury.

Rep. Martina White (R-Philadelphia) said she’ll introduce the bill in the next legislative session. Democratic Gov. Tom Wolfvetoed the measure on Monday.

White said her proposal would have delayed police departments from releasing officer’s names for 30 days unless criminal charges are filed or an investigation is completed sooner.9k

“Shootings are increasingly political,” White said in a statement. “That places the lives of our officers and the lives of their family members in danger. While we need transparency whenever police are involved in a shooting, we owe our officers basic protection from threats.”

Wolf said he’s deeply concerned for the safety of police officers, but he said situations where law enforcement uses deadly force demand transparency or “a harmful mistrust will grow between police officers and the communities they protect and serve.”

“Further, I cannot allow local police department policies to be superseded and transparency to be criminalized, as local departments are best equipped to decide what information is appropriate to release to the public,” he said in a statement.

Click for more bill signins from 27abc.com
PA corrections officers get final OK to carry pepper spray
Gov. Wolf signs bill to give hunters new gun options

 

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Session Schedule

Senate

January 3 swearing in day

House

November 22 (non-voting)

January 3 swearing in day

On the Governor’s Desk

The following bills were given final approval by the Senate and House and are now on the Governor’s desk for action–

Hunting Weapons: House Bill 263 (Gabler-R-Clearfield) removing the prohibition of air, chemical or gas cylinder powered, semi-automatic weapons for hunting.

Withholding Officer Names Involved In Shootings: House Bill 1538 (White-R- Philadelphia) further providing for the release of law enforcement officer information when a firearm is discharged or force is used (House Fiscal Noteand summary).

(Source:  Crisci Associates PA Capitol Digest)

In Re: Order Amending Rules 380 and 1380 of the Pennsylvania Rules of Juvenile Court Procedure, No. 716 Supreme Court Rules Docket  (Preservation of testimony when witness may be unavailable at time of trial).

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PA Courts Infographic:  How new limited access law differs from expungement

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November 30 is deadline to apply for Juvenile Procedural Rules Committee

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House and Senate return to session for final administrative work

Fresh from the November 8 election, the House and Senate return to Harrisburg this week to get acquainted with their new members and reorganize for the coming session.  The House meets November 14 and 15.  The Senate meets November 16.

There is no indication there will be further votes on any legislation by either the House or Senate, but several committees have scheduled meetings on some hot-button topics.

The House Judiciary Subcommittee On Courts, charged under House Resolution 659 (Everett-R-Lycoming) with determining whether now ex-Attorney General Kathleen Kane should be impeached, is scheduled to hold not one but two hearings on that topic.

In a related action, Attorney General Bruce Beemer said his Office’s report on porn mail started by Kane would be released next week.

After the sessions this week, the House and Senate will then formally end the 2015-2016 legislative session.

Everything starts over again on January 3 when the House and Senate formally organize and select leaders and, later in January, name committee chairs.

(Source:  Crisci Associates PA Capitol Digest)

On the Governor’s Desk

Hunting Weapons: House Bill 263 (Gabler-R-Clearfield) removing the prohibition of air, chemical or gas cylinder powered, semi-automatic weapons for hunting.

Withholding Officer Names Involved In Shootings: House Bill 1538 (White-R- Philadelphia) further providing for the release of law enforcement officer information when a firearm is discharged or force is used (House Fiscal Note and summary).

(Source:  Crisci Associates PA Capitol Digest)

Election results

The results of the November 8 election gave Senate Republicans three new members from Cambria, Dauphin and Erie counties and a veto-proof majority.  The 34 to 16 Republican majority is the largest GOP majority in 70 years.

House Republicans won 4 more seats in Beaver, Fayette, Washington and Westmoreland counties, but lost one in Monroe County.  The 122 to 81 Republican majority is the largest GOP majority in the House since 1958.

Republican Donald Trump beat Hillary Clinton by 64,000 votes out of 5.7 million votes cast for President in Pennsylvania, about 1,000 votes in each county, and incumbent Republican U.S. Senator Pat Toomey beat Katie McGinty by 96,000 votes.

But, Democrats, by wider margins, won all 3 the statewide row offices– Josh Shapiro for  Attorney General, Eugene DePasquale was re-elected Auditor General and Joseph Torsella as State Treasurer.

There were no changes in party alignment in Pennsylvania’s U.S. House delegation.  It remains at 13 to 5.

The ballot question raising the judicial retirement age from 70 to 75 passed by only 91,000 votes of 4.8 million cast.  900,000 fewer people voted for the referendum than for President.

(Source:  Crisci Associates PA Capitol Digest)

Hearsay and authentication of nonexistence of public records.  In Re: Order Amending Rules 803(6), 803(8) and 803(10) Approving the Revision of the Comments to Rules 802, 803(7) and 803(9), and Adopting New Rule 902(13) of the Pennsylvania Rules of Evidence No. 715 Supreme Court Rules Docket.   

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Expungement and limited access of criminal records.  In Re: Order Adopting New Rule 791 and Amending Rules 490 and 790 of the Pennsylvania Rules of Criminal Procedure No. 481 Criminal Procedural Docket

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Applicants sought of Boards of the Supreme Court

Interbranch Commission for Gender, Racial and Ethnic Fairness

Deadline to apply:  November 15, 2016

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Juvenile Court Procedural Rules Committeed

Deadline to apply:  November 30, 2016

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State Health Department seeks input on rules for laboratory testing of medical marijuana

Department of Health Secretary Dr. Karen Murphy Monday asked for public input on the proposed temporary regulations for laboratories that would be responsible for testing medical marijuana.  Comments are due November 18.

“We’re especially looking for comments from the laboratory community to help us develop regulations that protect the integrity of the medical marijuana testing process,” Secretary Murphy said. “As we move forward in this ground-breaking effort, we want to make sure that patient safety is paramount, and laboratories are essential to meeting that goal. These regulations are designed to ensure we have a safe and responsible process in place.”

The proposed temporary regulations outline:

— Protocols for sampling, testing, and reporting;

— Quality assurance programs that need to be in place;

— Transportation of samples from grower/processor facilities;

— The financial, legal, and operational requirements needed by an individual to be considered for a laboratory permit; and

— How those permits would be approved.

A survey also is available on the department’s website for patients who will be eligible for the Medical Marijuana Program to help ensure the program will meet their needs.

The survey will be available on the department’s website until 5:00 p.m. on Friday, November 18.

The medical marijuana program was signed into law by Governor Tom Wolf on April 17, 2016. Since that time, the department has:

— Completed the Safe Harbor temporary guidelines and Safe Harbor Letter application process, as well as approved 115 applications to date;

— Released public surveys to aid in the development of temporary regulations for growers/processors and dispensaries/laboratories;

— Developed the Medical Marijuana Physician Workgroup, which is scheduled to meet again on November 28; and

— Released a Request for Information for Electronic Tracking IT solutions for the tracking of medical marijuana.

Full implementation of the program is expected to take between 18 and 24 months. The program will provide access to medical marijuana for patients who are Pennsylvania residents under a physician’s care for the treatment of a serious medical condition as defined by Act 16.

Questions about the medical marijuana program can be emailed to RA-DHMedMarijuana@pa.gov or visit Health’s Medical Marijuana Program webpage.

(Source:  Crisci Associates PA Capitol Digest)

New PA Supreme Court eases ethical challenge for lawyers advising clients on medical marijuana.

Click for report form Pittsburgh Post-Gazette.

 

 

 

 

By Paul Cassell, Washington Post, November 11

Click for full report from the Washington Post

imrs-phpThe U.S. Supreme Court building (Andrew Harrer/Bloomberg)

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Voters in Montana, North Dakota and South Dakota on Tuesday each approved amendments to their state constitutions adding rights for crime victims. More than 30 other states have already taken this step, and the latest votes continue that important trend.

The results make clear that protection of crime victims’ rights is extraordinarily popular. Preliminary tallies show that Montana’s measure passed by a margin of 66 percent to 34 percent, North Dakota’s by 62 percent to 38 percent, and South Dakota’s by 60 percent to 40 percent. The North Dakota margin of victory is particularly significant, since there was an organized opposition – which appears to have had little effect.

These amendments are rooted in the simple idea that victims of crime deserve a role in the criminal process. For convenience, I link here the texts of the amendment for Montana, North Dakota, and South Dakota respectively. As can be seen, the amendments parallel constitutional protections for criminal defendants with rights for crime victims. Under these amendments, defendants and victims would be guaranteed the rights to notice of court hearings, to attend those hearings, and to speak when appropriate, for example, at proceedings for bail, plea bargains, and sentencing. Victims would also receive rights to have their case proceed without unreasonable delay, to be notified when an offender is released or escapes, to have judges consider their safety before granting bail, and to restitution from a convicted offender.

These rights restore victims to their original place in the criminal justice system. When the Constitution was drafted, victims could actively pursue criminal cases, even serving as their own private prosecutors. Over time, the victims’ role diminished, leaving them with little protection in government-driven prosecutions. In the 1980s, the pendulum began to swing back toward crime victim protection. Prompted by the victims’ rights movement of the last few decades, more than 30 states have now enshrined victims’ rights in their own constitutions. And in 2004, Congress passed the Crime Victims’ Rights Act, which gave victims enumerated rights in federal court.

While the wave across America towards enforceable constitutional rights has been going on for decades, recent efforts have been fueled by the emergence of the Marsy’s Law for All organization, funded by businessman Henry Nicholas. In 1983, Nicholas’ sister, Marsy, was murdered. Not too long after, following a visit to Marsy’s grave, Nicholas and his mother were confronted by the killer at a local grocery store. Arrested the night of the murder, he had been released on bail without anyone informing the Nicholas family. Nicholas’ experience in the criminal justice system led him to support efforts to protect victims’ rights. The three state votes build on successful efforts in California (2008) and Illinois (2014), and Marsy’s Law efforts are underway in Nevada, Kentucky and Georgia.

The growing number of state amendments, along with the federal law, reflect a national consensus that victims belong inside the criminal justice process — with a voice in decision-making. While all states have some statutory protections for crime victims, not all of these statutes are readily enforceable. The result, as Harvard Law Professor Laurence Tribe has observed, is that existing victims’ rights provisions have too often failed in the face of bureaucratic habit, traditional indifference, or the potential for conflict with the rights of the accused — even when defendant’s rights are not genuinely threatened.

Protecting the rights of crime victims can be done without in any way harming the rights criminal defendants. Some of the state amendments, for example, have been in place for decades and not interfered with the proper defense of criminal cases.

The recent state amendments reflect continued progress for the victims’ rights movement.  And they continue to help set the stage for the long-term goal of the victims’ rights movement: an amendment to the U.S. Constitution protecting victims’ rights. The efforts deserve support of those who are concerned about balance in our criminal justice system.  We should, of course, ensure that criminal defendants are treated fairly. But crime victims deserve fair treatment too.

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Paul G. Cassell teaches criminal law, criminal procedure, and crime victims’ rights at the S.J. Quinney College of Law at the University of Utah. He also served as a U.S. District Court Judge for the District of Utah from 2002 to 2007.

 

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Session schedule

Senate

November 9 (non-voting), 16

House

November 14, 15

Bills on the Governor’s desk

Hunting Weapons: House Bill 263 (Gabler-R-Clearfield) removing the prohibition of air, chemical or gas cylinder powered, semi-automatic weapons for hunting.

Withholding Officer Names Involved In Shootings: House Bill 1538 (White-R- Philadelphia) further providing for the release of law enforcement officer information when a firearm is discharged or force is used (House Fiscal Note and summary).

Prescription Monitoring: Senate Bill 1202 (Yaw-R-Lycoming) amending the Achieving Better Care By Monitoring All Prescriptions Program to require all licensed dispensers or prescribers regulated by the state to receive training on prescribing opioids (House Fiscal Note and summary).  Signed into law as Act 124.

Opioid Prescriptions For Minors: Senate Bill 1367 (Yaw-R- Lycoming) putting limits on prescribing opioids (House Fiscal Note and summary).  Signed into law as Act 126.

Independent Counsel: House Bill 1118 (Vereb-R-Montgomery) authorize the appointment of an independent counsel to investigate wrongdoing by the Attorney General and others (House Fiscal Note and summary).  Signed into law as Act 131.

Firearm Use Penalty: House Bill 1496 (Stephens-R- Montgomery) increasing penalties for felons possessing firearms.  Signed into law as Act 134.

Drawing Blood In DUI Cases: House Bill 2058 (Farry-R-Bucks) authorizing blood draws by EMTs in DUI cases (House Fiscal Note and summary).  Signed into law as Act 142.

(Source:  Crisci Associates PA Capitol Digest)

Pennsylvania cybecrime by the numbers

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