There are two type of potential violations of probation and parole. The first is a direct violation. This means that you have been convicted of a new crime and directly violated your probation. If you have been arrested, but not convicted of anything, this is a potential direct violation, because potentially, you could be convicted of a crime.

The second type of violation is a technical violation. This means that that you have no direct violation,but that you did not do what you were supposed to do while on probation or parole. For example, you did not complete your program, you had dirty urine, you failed to report your probation officer, etc.

The Gagnon I hearing is a very basic hearing to determine whether you should stay in custody waiting to see your back judge or if you can be released to the street with a subpoena for court to appear before your back judge. If you are in custody and having a Gagnon I hearing, it means that you have a detainer. The back judge is the judge who sentenced you. If you have only technical violations, there is a chance that you can be released. However, if you have a potential direct violation, there is little chance that you will be released at your Gagnon I hearing. Often people claim that they never received their Gagnon I hearing, but in many counties in Pennsylvania, the Gagnon I hearing is held administratively at the county prison with a trial commissioner and the defendant is not present at the hearing. The Gagnon I hearing is always held with ten days of the date that the defendant is taken into custody.

The Gagnon II hearing is when you go before the judge who originally sentenced you or a judge of concurrent jurisdiction. At the Gagnon II hearing, the judge will actually determine your fate, either to continue the probation or parole, or to revoke and resentence to additional time in jail or a new period of probation. A Gagnon II hearing must be scheduled every thirty days. If the defendant has a potential direct violation, the Gagnon II will simply be continued in advance and the person will not be brought into court and no Gagnon II hearing will take place.

Obviously, people often feel like they are stuck in limbo when they have a detainer and an open case because their back judge keeps rolling their Gagnon II hearing from month to month. The only way to attempt to get the detainer lifted is to have your lawyer file a motion to lift the detainer an get it specially scheduled before the back judge outside the purview of Gagnon II; meaning a special detainer hearing. At this time, you can have your detainer lifted.

You should never pay bail while someone has a detainer because they would never be able to receive time credit on the front case, the new case, if the bail is paid. You want to get the detainer lifted, then immediately go and pay the bail.

If this plea took place in Pennsylvania, could they have given up their appeal rights? I think the answer is yes and no.

In Pennsylvania, there are two types of appeal: direct and PCRA (Post Conviction Relief Act). A direct appeal is what people normally think about when they want an appeal, that is to appeal a decision made by the judge in the trial or to appeal something the prosecutor did that was not fair during trial. A PCRA appeal is much different. The three main types of PCRA appeals that we see in our office are appealing some mistake that your own lawyer made, newly discovered evidence, or an illegal sentence.

I think that a defendant can give up their right to a direct appeal in consideration of a deal with the prosecutor. However, I do not believe that you can waive your PCRA rights. If the plea is illegal, if your lawyer tricked you into pleading guilty, or even if you can show that your plea was not voluntary, you may be able to file a PCRA even if you waive your appellate rights.

Click here to view the embedded video.

At a bar in Philadelphia, two people were killed. Lambert was prosecuted, convicted, and sentenced to death. The main testimony for his conviction was from a man who was impeached four different ways. Turns out, there was a fifth way to impeach him–that another man was with him, not Lambert. This information was contained in the police activity report.

The police activity report was never given to Lambert’s lawyers.

On appeal for the last 28 years, court after court denied Lambert’s appeal. Finally, on February 7, 2011, the Third Circuit Court of Appeals had the courage to do the right thing and reverse the conviction and order a retrial based on a simple Brady v. Maryland, 373 U.S. 83 (1963) analysis. Restating for the umpteenth time that the district attorney has to give the defense attorney all of the discovery before the trial.

This is the link for the opinion for Lambert v. Beard.

The relevance of this case is that the appeals court in Texas sent the case back for re-sentencing because the criminal defense attorney erred during the case, specifically the sentencing.

In Pennsylvania, we have two types of appeals: direct and pcra (post conviction relief act). In a direct appeal, you appeal the trial itself, that the judge made a mistake or didn’t give you a fair trial, that an error occurred during your case. In a pcra, you can appeal for many reasons, but if the case of the blue-eyed butcher had occurred in Pennsylvania, her claim would have been ineffective assistance of counsel, that her lawyer erred under the pcra. This distinction is important in Pennsylvania, because you cannot exercise your rights under the pcra until you have fully exhausted all of your direct appeal rights, which can take many years.

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What we can learn from this case is that in death penalty case there are two parts of the case. First the trial, then the penalty phase. Note that in the penalty phase, a unanimous verdict is NOT required, whereas in the trial portion a unanimous verdict is required. In this case, the decision for death was 10-2. In death penalty case, there are many factors that are different then in normal criminal trials. The oddest is that during jury selection a potential juror that says they are generally opposed to the death penalty or who says they would never give out the death penalty is automatically struck from the jury, yet the prosecutor does not need a unanimous vote to get the power to become a killer herself. As a result, the defendant is always faced with 12 jurors that favor the death penalty.

Philadelphia Criminal Defense Attorney

What can we ask about this story? Two things came to my mind. First, can the police just go into his rear yard without a warrant? Is the rear yard part of the house that requires a warrant? Secondly, if the police were allowed to enter the rear yard without a warrant, did they need a separate warrant for the barrel if the barrel was sealed shut?

I do not know the law in Texas regarding warrant requirements, but if the police thought that a person was dying in the rear yard, they can walk in the rear yard to listen for a person who needs help or to search for a person who needs help. This is would be an exigent circumstance. However, once they get into the rear yard and there is no living person in the yard, there is no exigency so they most likely need a warrant for the barrel if its closed. If there are any Texas criminal defense attorneys, please comment.

Many readers are disturbed by the fact that he has not been charged with any type of crime or traffic violation for the poor driving. Basic criminal law tells us that to be convicted of a crime where intent is an element, the prosecutor must show that the defendant possessed the intent to commit the crime for which they are charged. Further, the burden of proof and production lays solely on the prosecutor to prove beyond a reasonable doubt that the crime took place and that the intent of the defendant was in fact to commit the crime they are charging.

How could the prosecutor do this regarding a traffic accident with Junior Seau? Do they know that he intentionally ran the car off the cliff? Do they know that he was driving recklessly? Does the prosecutor have any evidence that his car was not up to inspection and kept in the best possible driving manner? Does Junior Seau have a poor driving record? Has he done anything like this before? What evidence is there that his car driving off the cliff was anything more then an accident? What evidence exists that he fell asleep at the wheel? Further, if he did fall asleep at the wheel, what evidence is there that he acted in a reckless, negligent or intentional manner by falling asleep? If he was driving home from the police station from his arrest from the domestic issue, perhaps the police should have let him drive if he had been up all night from the previous arrest? If they think he fell asleep at the wheel because they got a statement from him, was the statement taken legally and can they use that statement against him in the criminal trial?

The prosecutor should ask themselves all of these questions before they decide whether to prosecute anyone for a crime. In this case, the scale clearly tips towards no arrest because the prosecutor will have a very difficult job proving any and all of the above. If this were to happen to any of us regular folks, there would be no questions that no ticket and no arrest is the appropriate response. This is a matter that is only a big deal because the drive of the car is a celebrity.

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Today, the confrontation clause is applied through cross examination in our courts. The defendant hires a lawyer to fight their case and during trial the lawyer gets to confront and cross examine all of the witnesses against the defendant.

In our modern approach the courts have come up with rules for courtrooms and rules for how evidence comes into the courtroom. Sometimes the rules of evidence conflict with the confrontation clause. Legislatures and courts around our country have created rules of evidence that dictate what is allowed in court and what is not allowed. A major rule of evidence is hearsay. Hearsay is an out of court statement, offered for the truth of the matter asserted in court, by a witness other than the person who originally made the statement. Many hearsay exceptions exist that allow lawyers to get in statements that are hearsay, yet meet an exception to the hearsay rules.

For many years, in domestic violence cases, if a victim did not appear in court, but the police officer took a statement from victim, the police officer was allowed to repeat in court what the victim had told the officer so long as the district attorney could show that the statement was taken at a time when the victim was excited or when the victim simply blurted out the statement because he or she presently had the impression of what just occurred on their mind. The officer was allowed to testify as to what the victim said even though the statement was hearsay because the statement fit an exception of hearsay rules as either and excited utterance or a present sense impression.

Whether these exceptions to hearsay violated the confrontation clause was appealed to the Supreme Court of the United States in a case called Crawford V. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court ruled that the confrontation clause trumps the rules of evidence and the witness must appear if the statement being sought to be entered by the district attorney is testimonial. How we define testimonial is a difficult question, but I think it means that if the testimony sought goes to the central issue of guilty or innocence, the witness must appear in court because we have the right to confront them. However, the actual definition is whether the statement or document was produced for the purpose of trial.

Recently, the Supreme Court of the United States took this concept one step further. In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the Court held that in a narcotics case the lab report showing whether the substance is actually narcotics is a testimonial statement, thereby, if the defendant wants to cross examine the author of the report, the court must allow them to confront that witness and force the DA to produce that witness in court.

Our own Superior Court has recently applied the Melendez-Diaz statement to DUI (Driving Under the Influence) cases in Commonwealth v. Barton-Martin, 2010 PA Super 163. In Barton-Martin, the Superior Court held that in a DUI case, you have the right to confront and cross examine the lab analyst who made the lab results report to show that you were under the influence. The Commonwealth can no longer move the blood report into evidence as a business record exception to hearsay. The rationale is that the blood report in a DUI is central to the DA’s case, so it is testimonial in nature and the right to confront trumps the hearsay exception.

Barton-Martin will certainly help clients who are charged with DUI, where blood was taken and the numbers are borderline whether the person was under the influence where the conclusion section states that no conclusion can be made if the person was unfit to operate a motor vehicle safely absent other evidence. You should now be allowed to question on lab conditions, methodology of testing, training of the lab tech, error margin of the testing procedures to show that the lab results create a reasonable doubt.

The right to confront your accuser still exists.

Posted on Mon, Apr. 5, 2010

Philadelphia to ease marijuana penalty

By Craig R. McCoy, Nancy Phillips, and Dylan Purcell

Inquirer Staff Writers

The city’s new district attorney and the state Supreme Court are moving to all but decriminalize the possession of small amounts of marijuana for personal use in an effort to unclog Philadelphia’s crowded court dockets.

Under a policy to take effect later this month, prosecutors will charge such cases as summary offenses rather than as misdemeanors. People arrested with up to 30 grams of the drug – slightly more than an ounce – may have to pay a fine but face no risk of a criminal record.

“We have to be smart on crime,” said District Attorney Seth Williams, who took office in January. “We can’t declare a war on drugs by going after the kid who’s smoking a joint on 55th Street. We have to go after the large traffickers.”

The shift is a major move in a reform agenda being hammered out in an unusual partnership between Williams and two members of the state Supreme Court, Chief Justice Ronald D. Castille and Justice Seamus P. McCaffery, each of whom has a long background in criminal justice.

The goal is to sweep about 3,000 small-time marijuana cases annually out of the main court system, freeing prosecutors and judges to devote time to more serious crimes. The diverted cases amount to about 5 percent of the caseload in criminal court.

Police have been briefed on the policy shift, but appear less than enthusiastic about it.

“We’re not going stop locking people up,” Lt. Frank Vanore, a police spokesman, said Friday. He said marijuana possession remained illegal.

“We’re going to stop people for it. . . . Our officers are trained to do that,” Vanore said. “Whether or not they make it through the charging process, that’s up to the D.A. We can’t control that. Until they legalize it, we’re not going to stop.”

Some key aspects of the change remain unresolved.

Williams’ top aides are still researching whether they can simply convert all the small marijuana arrests into summary charges of disorderly conduct. The shift might require a change in state law or in a city ordinance, his advisers say.

The new approach could generate hundreds of thousands of dollars in fines for the Philadelphia courts. While the amount has not been formally set, fines for minor drug possession would be $200 for first-time offenders and $300 for others.

“We are not looking at it as a moneymaker, but we could use those funds to focus on other efficiencies,” said Castille, who was Philadelphia’s district attorney from 1986 to 1991.

McCaffery, a homicide-detective-turned-lawyer, has talked of using some of the new cash to pay consultants to study further ways to reform the court system.

Castille called the new policy “appropriate” for a system loaded up with a total of 60,000 fresh cases a year, including the arrests of about 5,500 alleged heroin, cocaine, and methamphetamine sellers.

Of marijuana possession, the chief justice said, “It’s a minor crime when you’re faced with major drug crimes.” Taking those cases out of the city’s main courtrooms, he said, “unclogs the system.”

The new approach was endorsed by Chris Goldstein, a leader of the Philadelphia chapter of the National Organization for the Reform of Marijuana Laws (NORML). His group has been quietly lobbying prosecutors and top Philadelphia narcotics police for change.

“The marijuana consumers of Philadelphia welcome this,” Goldstein said.

McCaffery, appointed by Castille to oversee the ongoing shake-up of Philadelphia’s criminal justice system, said the shift would help the courts focus on more serious cases.

“This will free up a lot of time in the courtroom,” he said. “The fewer de minimis cases, the more time the judge and the prosecutor are going to have on other cases.”

The new policy on marijuana is part of a wave of changes under review in response to The Inquirer’s investigative report on the criminal justice system, “Justice: Delayed, Dismissed, Denied,” in December.

The newspaper’s reporting portrayed the Philadelphia system as in crisis, clogged with cases, bogged down by delay, and harsh on victims and witnesses. The paper found that Philadelphia defendants escaped conviction on all charges in nearly two-thirds of violent-crime cases – one of the lowest conviction rates in the nation.

Williams, working with the two justices and others, is also moving forward with plans to streamline preliminary hearings and overhaul the charging unit, rejecting prosecution in some cases and kicking others back to detectives for more investigation.

He and top aides – First Assistant District Attorney Joseph McGettigan and Deputy District Attorney Ed McCann – have been giving misdemeanor marijuana cases special attention. The maximum penalty for possession for personal use is only 30 days in jail, and defendants rarely serve time.

Under Williams’ predecessor, Lynne M. Abraham, the district attorney for 18 years, the office prosecuted about 3,000 such cases a year.

The prosecutions often tied up judges, assistant district attorneys, police, and defense lawyers – not to mention defendants – in Municipal Court for multiple court listings.

Prosecutors would agree to withdraw the charge if a first-time offender completed community service. Offenders with a criminal history could end up with a formal misdemeanor conviction.

Under the new policy, people charged with possession for personal use will still be arrested, handcuffed, searched, detained, and fingerprinted. Then, regardless of their criminal history, their case will be heard by a special late-afternoon summary court in Courtroom 408 at the Criminal Justice Center. This “quality of life” court handles offenses such as public drinking and disorderly conduct.

Defendants determined to fight the charges could still demand a full trial, but few are expected to do so.

Arrests for small amounts of marijuana aside, police still make thousands of drug arrests yearly in Philadelphia – 18,000 last year for drug-related crimes of all sorts, including charges involving possession and dealing.

Of these, they arrested about 2,000 suspects as alleged marijuana dealers and about 2,500 people for possession for larger amounts of marijuana, over 30 grams.

The handling of those more serious cases will not change, prosecutors say.

Police and prosecutors in other cities and states have taken similar steps toward decriminalization or something approaching it. Several dozen cities have enacted “lowest law enforcement priority” ordinances, stipulating that police pursue such cases as a last resort.

Voters in Seattle approved a ballot question mandating this change in 2003. Since then, arrests for possessing small amounts of marijuana have fallen by three-quarters. In 2005, Denver voters approved an ordinance legalizing possession of less than an ounce, or 28 grams. San Francisco passed a similar law in 2006.

Several states, too, have taken a softer stance on marijuana possession. For example, Massachusetts decriminalized marijuana in 2008, making it a civil offense and imposing a $100 fine for possession of less than an ounce.

According to the Department of Justice’s latest report on drug crime, 28 percent of adults ages 18 to 25 who were surveyed admitted using marijuana at least once within the previous year. For the rest of the adult population, 7 percent admitted using the drug during the same period.

McCaffery has considerable experience with the use of special courts operating under the umbrella of Municipal Court. When he was the court’s administrative judge, he pioneered “Eagles Court” for unruly football fans and spurred the collection of fines for “quality of life” summary offenses.

During McCaffery’s final 16 months on the Philadelphia bench, the courts levied $2.3 million in fines. Since he left, the imposition of those fines has diminished, costing the city millions, he said.

Under the new initiative, McCaffery said, the court will resume imposing those charges even when defendants fail to show up for summary court.

According to McCaffery, the court will be able to go after as much as $5.5 million in fees from 2008 and 2009 in this fashion. Any new marijuana-related charges will be on top of that.

Goldstein, of NORML, said his group had been lobbying for relaxed treatment of marijuana cases for more than a year, meeting with members of the District Attorney’s Office, Mayor Nutter’s staff, and police brass.

“This is a very progressive thing to do on the part of the city,” Goldstein said of the new policy. “I couldn’t be happier about this.”

He said the change also would redress a racial pattern apparent in Philadelphia drug-possession arrests. More than 80 percent typically have been of African Americans, Philadelphia police data show.

“All the data from the federal government indicates that blacks and whites consume marijuana at near-equal rates,” Goldstein said, yet “the pattern of arrests is that over 75 percent are black men.”

According to him, the situation is the same in New York City, where research indicated it was due to more intensive police patrol activity in African American neighborhoods.

Goldstein said he was troubled that Philadelphia police would be permitted to keep arresting people for marijuana possession.

“It is completely absurd,” he said. “It’s harsh. For minor marijuana possession, it’s very harsh treatment.”

Police elsewhere merely issue people a ticket and send them on their way, he said.

Leading members of the defense bar also endorsed the new marijuana-prosecution policy.

Joseph C. Santaguida said that “it’s a good idea” to steer these minor drug cases to a diversionary program.

Brian Zeiger, another criminal-defense lawyer, said he saw the move as positive both for taxpayers and defendants.

“The city gets money, and the city doesn’t have to pay [court] overtime to the cops. It’s a guaranteed win for clients. It takes all the risk out of it.”

Below is an excerpt from the 2009 Philadelphia NORML (National Organization for the Reform of Marijuana Laws) rally.

Click here to view the embedded video.

An exception exists to the five year waiting period. The exception is directly written into the expungement statute at 18 Pa.C.S. sec. 9122(a)(3) as:

a person 21 years of age or older who has been convicted of a
violation of section 6308 (relating to purchase, consumption,
possession or transportation of liquor or malt or brewed beverages)
petitions the court of common pleas in the county where the conviction
occurred seeking expungement and the person has satisfied all terms and
conditions of the sentence imposed for the violation, including any
suspension of operating privileges imposed pursuant to section 6310.4
(relating to restriction of operating privileges). Upon review of the
petition, the court shall order the expungement of all criminal history
record information and all administrative records of the Department of
Transportation relating to said conviction.

This means that if you are convicted of a summary offense under 18 Pa.C.S. 6308, you are over 21 years old and you have satisfied all of the requirements from the initial sentence, your summary conviction shall be expunged without the five year waiting period. 18 Pa.C.S. 6308 involves summary offenses related to alcohol.

Therefore, your under aged drinking conviction can get expunged in less then five years.

In Japan its also illegal to purchase alcohol under age. However, you can buy beer from a vending a machine.