You're welcome. Any there any other questions from members of the Committee? Thank you very much.
Madam President, thank you very much for your cooperation and your help and your encouragement. I really thank you, and thank you for the insightful questions that makes you feel that you're wanted. So thank you very much.
Thank you. District Attorney's Office is next. 2286 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) (Witness comes forward.)
Good morning. Thank you for your patience and welcome.
Good morning, Madam President. My name is Lynne Abraham. I'm the District Attorney of Philadelphia. Joining me is our Chief of Office Administration. There are also a number of deputies and chiefs in the room as they may be needed. My statement to Council is relatively brief and I have already submitted it to the Council Chair. Essentially, Madam President, this Council last year approved funding that would be required to not only achieve better productivity, but also increase the starting salary of our District Attorneys so that they would mirror the salaries paid to City Solicitors. And also you approved most graciously the improvement of our victim witness service grants. Those are very important issues. Council has been gracious in their support of both our needs and the citizens' needs. The City, however, this year, as we understand it, is going to be faced with a 2287 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) less-robust economy than in prior years. Our national economy is in a recession and the City's economy has reflected that downturn. Obligations, however, are projected to rise by 3 percent. The condition of the Philadelphia Gas Works, which was a subject of a major grand jury investigation conducted by my office, municipal corruption, drug-related violent crime, and a host of other issues pose real threats to the economic vitality and growth of this City which are still considerable. In the face of these challenges, our Mayor has asked me to exercise some financial discipline this year, and I have, therefore, in accordance with his wish, have agreed to do so. We're asking for zero increase in Class 200 funding for the purchases of services. Zero increase in classes 300 and 400 funding for material and supplies and equipment. And only a slight 1.7 increase in Class 100 funding for personal services. This increase is not to fund any additional positions. It's solely to fund contracted cost of living increases, one which took effect this past December and the other which will take effect this coming December. Although in actuality it is not 2288 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) enough money to fully fund these increases, however, the Mayor has asked us to tighten our belts. We're going to absorb some shortfall and I have agreed to do this. Therefore, Madam President, our budget request remains within the guidelines established by the Mayor. That is not to say that we couldn't use more funding. It is to say that we will do as the Mayor has requested us to do.
Thank you. The Chair recognizes Councilman Nutter.
Thank you, Madam Chair. Good morning, District Attorney Abraham.
The First Judicial District was in -- I think that was yesterday, yesterday or Monday. And while I didn't have a chance to read your testimony, I was able to listen and I know that it's basically in concert with, I guess, whatever was worked out with the Budget Office. I wanted to ask you about in both the First Judicial District testimony and also in the Defender testimony, and I guess they're coming up next, there 2289 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) was discussion about additional court costs and also the issue of appointed counsel for people who cannot afford to pay. And we'll, obviously, deal with those issues for the two agencies as they move through the process. I wanted to ask you, though, with regard to homicides in the City, do you have recollection or are you able to provide any information with regard to the number of homicides that we've experienced in Philadelphia over the last 10 years on a yearly basis?
Yes. In total since 1991, we've had 4,736 homicides in the City of Philadelphia; 500 in 1990; 440 in 1991; 425 in 1992; 439 in 1993; 404 in '94; 432 in '95; 420 in '96; 418 in '97; 338 in 1998; 292 in 1999; 319 in 2000; 309 in '01.
So from 1990, 2290 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) obviously, the numbers are going in the right direction, which is down. And it looks like there were a couple years where the number was up from the previous year and then went down the subsequent year.
So the last five years seems to be hovering somewhere in the 300 or so range by way of an average?
Right. So that number 4,736, now, how many of those homicides resulted in the charging of an individual and a case actually being prosecuted?
Well, assuming that -- I can give you the figures of how many people have been arrested. I don't know if I have them all here today. But, obviously, there are homicides which are unsolved, a large number of unsolved cases. So I don't know that I have the figures how many cases -- let me double-check my figures to make sure I don't have that information with me. Just give me a moment, if you would. 2291 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) I don't know if I can give you a year-by-year list. I can give you a yearly disposition. Here is what the problem is. Because a case happens in one year, it doesn't mean it's going to be disposed in the same year it happens. But as an example, the homicide -- I've just been given some additional information. Let's see. For dispositions, I can't answer the arrest on all the cases. But on dispositions, for example, in 2001 there were 289 homicide cases disposed of. That means tried, and so forth. So that's one year. In other years, for example, we had -- if you want the whole list from 1990, I can give you that, up to roughly where I left off. So 1990 we disposed of 376 homicide cases; 1991, 473; 490 in 1992; 405 in 1993; 410 in '94; 369 in '95; 325 in '96; 288 in '97; 264 in '98; 277 in 99. The only year I don't have is 2000, and I can get that for you if you need it. Let me just see if I have 2000. No, I don't have 2000.
And 2000 for the 2292 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) moment is a question mark.
I just don't have that right now. But 2001 was 289. So my guess would be for 2000 it would be somewhere around a similar figure.
So they don't stay perfectly within a year. So a number of homicides a particular year, you don't know that that's not going to get taken care of that particular year, it probably goes into the next and possibly the next. Now, let's say for 2001 there were 289 homicide cases that were disposed.
Do we know what either the conviction or the sentence was in all those particular cases?
Sure. We had 44 life sentences. We had 12 third degree murder convictions. We had 9 not guilties. And others we had lesser degrees of homicides and so forth. If 2293 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) you want a total breakdown -- you want a total breakdown of guilty, not guilty, first degree, second degree, manslaughter; is that what you're asking?
Thank you. For the 2001, why don't we stay with that since you have current figures for that.
And for the total 2294 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) number of prosecutions or I guess the 289 cases, do you know how many the death penalty was -- do you call it requested it or certified or applied for? I know there's a particular --
There's a rule of criminal procedure which requires us to give notice. We gave evidence of the aggravating circumstances at the time of the preliminary hearing. We gave notice on 144 cases, but only 67 were ultimately approved for potential seeking of the death penalty.
Well, because of a variety of factors that are determined during the course of the further investigation of the case. For example, the law requires us to give notice of a potential death penalty within 10 days of arraignment, failing which, we are prohibited from seeking the death penalty at trial. So we give notice on all cases which we believe at that time have at least one or more aggravating circumstances: Death a police officer, contract killing, killing committed by torture. And by the time the process winds its way through to trial, there is additional evidence 2295 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) deduced or elicited by either further investigation or that we find the aggravating circumstances may not quite fit with new law that came down or there are other factors that we consider in deciding whether or not a person should be subject to the death penalty at the time of trial.
Let me make sure I understand some of the numbers. This is for year 2001, 289 homicide cases disposed.
Of which 144, exactly half, you gave notice of seeking the death penalty, 67 were approved to proceed through the system, and ultimately two people received the death penalty?
What's your sense of what may have happened in the other 65 cases?
What happens is either at the time of trial the defendant pleads guilty for a life sentence or some new evidence comes forward which doesn't indicate that a death penalty is appropriate. Or for a variety of other reasons, the case is either tried and found to be wanting in the 2296 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) death penalty or there is some other disposition of the case. The District Attorney Assistant may come to us and say it's not appropriate to go forward with the death penalty and a variety of other things that could happen between the time that we give notice, the time it's approved, and the time of trial.
I assume there's a fair amount of time, effort, and expense that goes into pursuing a death penalty case?
We take a great deal of time on all of these important cases, as much time as we can devote.
Is there any particular meaning or analysis to 144 cases where you gave notice, the result of which was 2?
Well, what do you take from someone made a judgment that 144 of the cases notice should be given, and then as the cases work their way through the system, the result that was pursued only happened in 2 of the 144 cases?
Merely because we are required to give notice, in default of which we 2297 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) can't seek the death penalty at the time of trial, doesn't mean that that's how many cases are ultimately going to be approved for the death penalty nor the cases that are going to be tried by a death qualified jury nor does it guarantee that that in fact will happen. We must give notice under Rule 801, so we do in all those cases where the law requires us to give notice. How many cases ultimately result in the death penalty is subject to a tremendous number of factors, and the jury is left to its decision about which cases the jury believes is appropriate for the death penalty.
Right, I understand. And obviously, you don't get there if you haven't made the application. I'm just trying to understand whether or not, given what some of these numbers are, is it being -- is the death sentence being overly applied for if the final analysis is showing a significant difference between the application and the ultimate decision? I'm raising a question as to the decision-making process that goes in. I understand you can't seek it if you don't make the application. But there's, obviously, a significant gap between the start of the process and the end. 2298 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) I'm not advocating that you get to have more people who have the death penalty, what I'm at least wondering is, is there an overcharging going on if it is ultimately found for the various reasons that you've laid out and maybe some others that it's not going that route anyway?
Councilman, we don't overcharge anybody if we can possibly avoid it. And I think that's a clear policy of mine ever since I've been there. The fact that prosecutors seek a death penalty doesn't mean that a judge or jury is going to impose it. That's the system. We are in full compliance of the law in our right to seek the death penalty in all of those cases that we believe that a death penalty is appropriate. The jury or the judge may or may not find in our favor. That does not alter the fact that as prosecutors we have the absolute right to seek the death penalty in all appropriate cases, and that's what we do. I think that 44 life sentences is very stiff considering the cases that we disposed of and the seriousness of all of these homicide cases.
I would agree. You know, a life sentence is kind of a long time. 2299 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) I mean, based on that, though, I'm left to ask what is the purpose of the death penalty?
The death penalty has been established by the Legislature of Pennsylvania and upheld by the courts. And our society recognizes the full rights of members of a jury -- which in Philadelphia it is in past 30 years almost always been a jury. I can't recall one single case where a three-judge panel was impaneled or where a single judge imposed the death penalty. I can't recall any. So that members of the community shall have the right, the ultimate right, to pass on the appropriateness of a sentence when confronted with an individual who has taken the life of another person without justification, mitigation, or excuse. And that's the purpose of the death penalty, for the community to pass its judgment under instructions by the Court as to its decision on whether another person of their community shall live or die.
I understand that. But the jury does get that right automatically. They don't get it at the start unless the application is made and it first gets pass a judge. In the numbers that you laid out, less than half of 2300 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) the applications were approved apparently by the court.
No, it's not by the court. It's by me and the members of my office. We approve the right of an Assistant District Attorney to seek the death penalty. It has nothing to do with the court.
I understand and I apologize. I guess I was left with the impression that you approved the application.
The District Attorney's Assistant seeks the approval of the District Attorney and her staff whether or not this case is appropriate to seek the death penalty. The fact that we have to give under the law means that we give notice in whatever cases under law appears to be a case where the death penalty may be an appropriate outcome.
I think it was my lack of understanding of that part of the process. I think what you're now explaining to me, which I better understand, is the ADA involves working through the person ultimately responsible, yourself as the District Attorney, because you have to give 2301 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) notice, you applied for in that particular year 144 -- you made a 144 notices.
We gave 144 notices to defense counsel and to the defendant that this is a case that might involve the potential for the imposition of the death penalty, as we're required to do under the rules of criminal procedure.
And then subsequent to that, 67 of those 144 notices were approved by you to then proceed through that process, 83 of them were -- what, did you decline or withdraw or they worked out something?
They either did not -- they were not submitted to me or they did not receive the approval or an aggravated circumstance that presented itself at the time of the preliminary hearing turned out not to be the case or it couldn't be proved or a witness died or the circumstances changed or additional investigation proved otherwise. It could be a myriad of reason that I really can't detail here because they're all so varied. When it's all said and done, the prosecutor asked and received approval from me as the ultimate arbiter, plus other people in the office to give 2302 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) that Assistant District Attorney permission to do what's called a death qualified jury for trial.
In your review or analysis of -- I will make the assumption that there is some analysis done on a year-to-year basis of the kinds of things that we're talking about here today. Are any of the various decision-making processes affected by -- and I understand you have to give notice. Notice is given, 144 cases subsequently what looks to be maybe about 40 or so percent ultimately approved. Does anyone raise a question as to we made application in 83 other cases, for whatever reason they didn't go forward, and again reviewing internal policies and procedures, are we in fact utilizing this particular tool and authority given by the legislation, are we using this appropriately?
Councilman, that's a matter for prosectorial discretion. That's why prosecutors are allowed to exercise their discretion that while we have to give notice in order to preserve the right to exercise our discretion intelligently, we always maintain that for the rights of the victims and the vindication of the 2303 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) families who are left behind, we have to exercise our discretion ultimately in deciding which cases are going to go and be prepared for the potential of a death penalty. That's an appropriate use of prosectorial discretion, not an overcharging and not an inappropriate use of prosectorial discretion.
Let me ask this question. Is it appropriate to kill someone to convey that it is wrong to kill people?
Councilman, I'm the District Attorney of Philadelphia. I have sworn to uphold the law of the Commonwealth of Pennsylvania. The law of the Commonwealth of Pennsylvania as enunciated by our Legislature and our courts has a death penalty. I'm going to uphold the death penalty as long as it is on the books of Pennsylvania. That's my oath. I swore to apply and uphold the law.
I understand that. I'm not asking you to violate the law or do anything with regard to your oath. But I think your earlier testimony is, it's discretionary. I don't think the law requires or I don't think the Legislature has required you as District Attorney here in 2304 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) Philadelphia or any other of the District Attorneys to make the application. You have the right to make the application --
I'm going to make the application whenever it's appropriate, Councilman.
I understand that. But my question is, are you required to make the application or is that a judgment call?
I am going to follow the law of Pennsylvania and seek the death penalty in every single case that I think it's appropriate.
Okay. Now, do you think that people are discouraged from committing homicide because of the death penalty?
I think it discourages some, yes, I do. I think the fear of punishment always dissuades people just like a parent or a child is inculcated at home. Don't do bad things, there are serious consequences to bad things. There are always people who are dissuaded from committing crimes because of a variety of reasons, not the least of which is familial disapproval, embarrassment, the weight of the law, going to jail. It's part of your moral upbringing not to do bad 2305 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) things because there are serious consequences to doing bad things.
I understand that. I mean, are you saying that the homicide rate has gone down over the past years because people 7 became more moral or they became more concerned 8 about the death penalty, or are there other factors? 9
I think there's a 10 combination of factors. I can't say to you and prove that because X number of people have been executed, Y number of people have been dissuaded from picking up a gun and going into a storekeeper, as happened in your neighborhood last night, and killing the storekeeper because they resisted a robbery. I can't say the opposite either.
Do you think that a person was thinking about the death penalty or were they thinking about the holdup?
No, I don't think they were thinking -- I don't think people go into the store and think about the death penalty. They might think about before they go into the store and worry about the death penalty. But in the midst of the robbery, I don't think they think about the death 2306 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) penalty except as they impose the death penalty on the storekeeper. They're thinking about the death penalty and when it applies to the innocent storekeeper, they're going to kill them in cold blood. So they about the death penalty in that respect. They're hoping they won't ever be caught and have to answer for their crimes.
I'm sure. Now, do you think the public is any better or less protected by life without parole versus the death penalty?
It was kind of an either or question. I didn't understand the response.
Life without parole does not mean life without parole in the sense that the Governor can always commute a life sentence and put a person out on the street.
The Governor can commute a 2307 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) death sentence as well.
The difference is that sometimes juries think that life without parole means the person will never get out on the street, and that depends on who the Governor is. Governor Schapp commuted I don't know how many life sentences and put all those people out on the street. Some of them murdered again. As a matter of fact, as you remember, Mark Single lost the election in large measure because he commuted the life sentence of Reginald McFadden who at murdered an old lady, 15 went to prison for 25 years. He became, quote, a 16 model prisoner, went before the Parole Board, had his life sentence commuted by the Pardons of Commutations Board, and within two weeks of his being released murdered four people in New York. So the answer to your question is not necessarily.
But I thought you said earlier that the Governor can also commute a death sentence.
The Governor can commute anything. And also, prisoners murder in prison. 2308 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET)
You're just saying that if you have the death penalty and you get it, then you don't have to worry about the Governor doing anything because the person is not around.
You said that juries think that when they give someone life without parole, it means the person will never be back on the street, therefore, your concern was that the Governor could commute that person's sentence and that they could be out and then you had the other example. But then you also said that the Governor can commute a death sentence when that same jury thought that they were giving the person the death penalty, right?
What's the difference between what? I'm not getting your drift. I'm sorry. Maybe I'm missing something.
I asked you was 2309 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) there a difference between a person getting life with no parole, and is the public better or less served by the person getting life without parole versus getting the death penalty. Your response was, well, juries think that when they give life without parole, the person will never be out.
No, that wasn't the question. You asked me did I think the citizens were better off, and I said not necessarily. And here's my important point. These are moral issues, I think, that are not within the purview of what I do for my job. I'm not here to debate the moral issues of what is good or bad, but I can tell you this --
They are absolutely within the purview of your job. It's your job.
Murderers kill in prison. Other prisoners are killed in prisons. And I'm saying to you that the jury decides in its wisdom what the appropriate sentence is. And it's no 22 secret that I have and do support the death penalty.
I understand that. You have a right to do that. I'm just asking you questions about it because it's your job. 2310 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET)
It's not only my job, it's the law of Pennsylvania. I'm doing what the law of Pennsylvania asks me to do, and that is follow and apply the law. It's my oath. That's what I'm going to do. I'm not here to suggest to you --
Well, I understand that, but you would also act like the law doesn't give you discretion. I understand you want to be on one side of this discussion.
Excuse me, Councilman. The law gives me discretion which I exercise, and I exercise discretion well. That's why it's called prosectorial discretion. And I'm going to continue to exercise that discretion in every case.
I'm not questioning your discretion or your right to have discretion. The discussion is that you do have discretion, but your response would leave one with the impression that in your pursuit of following the law, you have to do certain things. And I think you know that that is absolutely not the case. You do not have to make that application in order to follow the law.
I beg your pardon. I certainly do. When the statutory aggravaters are 2311 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) present, then the District Attorney is supposed to exercise her discretion and seek the death penalty in the appropriate cases. And, frankly, the way the law is written, if there are aggravating circumstances, that's what I'm supposed to do and that's what I do. It's required by law. It's mandated by law. And, frankly, the only way I could avoid doing it is if I disregarded the law of Pennsylvania. So it's not a matter solely of discretion. It's a matter of following the law. Where I exercise my discretion is where I see whether a case actually falls within the requirements of the law to seek the death penalty. Where I believe that the facts of the case are not appropriate or the statutory aggravating circumstances are not or cannot be made out or have not materialized after investigation, my discretion is probably exercised when I say we cannot seek or will not seek the death penalty, this is not an appropriate case. It's the opposite when I disregard the law and don't seek the death penalty in cases where the law provides for the death penalty. That is not an exercise of prosectorial; that's a disregarding of my oath of office. 2312 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET)
Okay. Now, have any of our various death penalty cases either been reversed or subsequently found that the person was convicted incorrectly?
Where a person was convicted, sentenced to death, subsequently found not to be the person that should have been convicted in the first place?
Well, there are relatively few of those cases in the Commonwealth of Pennsylvania and --
Well, if you're one of those people, you don't care about all the other cases, you just care about yourself.
-- and in those cases, the system has worked as it has intended to be working. That is, over the course of a long history of 2313 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) appeals where a person is incorrectly tried or convicted or some error was made by the judge or the defense attorney or the prosecutor or the witness or something else comes up, then the system is acting as it should act. And I support of the system.
The person often loses a fair amount of their life during that time while they've sat in prison, been under a death sentence, the multiple appeals, the cost involved and the like. What's their recourse and how would you feel if someone was actually given the death sentence and subsequently it was determined that we had killed the wrong person?
Well, Councilman, I haven't been presented with that fact yet. Can you point to me a case where a person was executed who was actually innocent?
I haven't said that. The question was, how would you feel it?
I'm not going to answer that question until you can provide me with a case that says that that actually happened.
Are you saying that it's never happened. 2314 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET)
To my knowledge, I have not heard of any case where a person has been actually innocent who has been executed. I haven't. Have you?
Not to my knowledge, but I'm not in the death penalty business.
I'm not in the death penalty business either. I'm in the prosecution of criminal cases in order to keep this City safe. I don't know how many people will want to move out of Overbrook because of that killing yesterday. My role as a prosecutor is to keep the community safe. I do the best I can, I'm diligent, I'm hard-working, I'm honest about it.
Madam District Attorney, I am not questioning your vigilance --
-- in pursuing criminal activity. I am not questioning that. That is not what this is about.
Well, you said I'm in the death penalty business or you are not in the death penalty business and the implication that I was. I 2315 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) am not.
I'll amend my statement. I'm not prosectorial business. You are.
So you would automatically have more information in the area. I did ask you a question. If you don't want to answer that particular question, I think you've at least acknowledged that it is possible and your earlier response was, as long as the system works and that kind of tragic event doesn't happen, then I guess the person should be happy about it.
We try as much as we can to make sure in every case possible that we have the right person for the right reasons. And when we don't, I have not exercised the slightest bit of hesitation in walking into a court and saying, "This person is the wrong person. We're going to go back to Square One and find the right person." That can happen the day after the person is arrested, a week after the person is arrested. Even if a person serving a sentencing, where the evidence that we had been presented compels me to reach an opposite conclusion, we're going to confess 2316 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) that and say, "This is the wrong person." We now have new prosectorial tools which we didn't have before, like DNA. DNA will convict more people. It won't acquit more people, it will convict more people. And it's going to be a very important tool --
Excuse me. I'm not finished. Madam Chair, can I finish my statement?
Some people are guilty, they should be convicted. There's no 15 question about that.
It's going to help us make sure that the right person is convicted for the right reason. It's not going to work in every case. We didn't have that 20 or 30 years ago. We are finding now 20 or 30 years ago that the wrong person was convicted. We go into court and say, "Wrong person." It wasn't because we were bad or mean or we were looking to just take somebody and put them 2317 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) into prison. That's not the way the Office of Philadelphia's District Attorney has ever operated in the 30 years I'm familiar with it.
I'm not questioning motive or mindset. I merely asked the question, and you did state for the record, I think, it has happened that some people have been wrongly convicted and subsequently released. Can you provide to the Chair information you have about that?
You mean in all cases in the City of Philadelphia? You mean in homicide?
Well, here's the problem. And I want to be clear on this. Just because a person is found not guilty doesn't mean that they didn't do it. I can only tell you how many verdicts were overturned on appeal. I can tell you how many verdicts -- you're talking homicide cases. I can tell you how many cases were reversed. I may be able to explain why or why they weren't reversed. That's the best I can do. I can't comment on whether the person is actually, quote, actually innocent. 2318 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET)
I understand. I'm going to assume that neither of us was there at the time of the event and we didn't see it and we were not eye witnesses. I'd just like to have a better understanding of that. I just have couple few last questions.
Well, it's a very interesting debate, however, I think you have been on for 37 minutes. It's my understanding that other Councilmembers would like to be recognized because they have prior commitments.
Thank you. Councilwoman Tasco, I think you said you have a prior commitment.
Thank you very much. Good morning. You know I have a real strong interest in this issue of predatory lending 2319 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) and I just have a couple questions to ask you about your office to see if you have utilized any of the following state laws to prosecute fraudulent and predatory home repair contractors. And I think Councilman Ortiz is going to have some issues around this, too. One, the Credit Service Act; two, the Home Improvement Finance Act; and three, the Unfair Trade Practices and Consumer Protection Law. Each of those law allow the DA to seek injunction and/or bring criminal prosecution against predatory loan brokers and predatory home repair contractors.
Councilwoman, joining me at the table is Leonard Deutchman, the Chief of our Economic and Cyber Crime Unit who is I believe intimately connected with this issue and will be able to explain anything you need to know.
Good afternoon, Councilwoman. We have not used those laws. When we have been involved with home improvement scams, we have relied on the more traditional laws such as theft by deception which carry a higher penalty and are more, shall we say, understandable because they're the kinds of things that judges see over and over and over again. So we tend to go at the same 2320 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) problem, but we don't tend to go at them with those particular tools; we go at them with the more traditional tools.
That are stronger? The more traditional tools are stronger than these tools provided by the State?
It's my understanding that they are. The penalties for theft by deception, the guidelines are higher in terms of criminal penalties.
How many cases have you prosecuted this year around home improvement?
Around home improvement scams? Off the top of my head -- I don't have exact figures with me. Off the top of my head, I would say probably a half dozen home improvement scams.
Do you take a proactive role in going after these individuals or are you responding to complaints filed with the office?
We respond to complaints 2321 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) filed with the office.
We asked the Law Department earlier about enforcement, and we see a number of home improvement contractors who engage in home improvements without seeking the proper license. What is your role in going after those or prosecuting those? Do you have to get a recommendation or a complaint from the Law Department or from a victim before you do anything? Because we know now that the Zoning Board is now having those individuals identified.
Well, to the best of my understanding, the criminal law really doesn't play any role with regard to without a license. That's a regulatory issue so the Law Department will handle that.
Thank you. Just one other question. How are we doing on the nuisance?
I think we're doing extraordinarily well, given the complexities of public nuisance enforcement. We're doing, I think -- we meet hundreds of meeting during the course of year. We've closed, I think, in the past 2322 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) year at least 30 bars and other establish. Our office is extraordinarily proactive. And I wanted to add one thing to what Mr. Deutchman said about the home improvement scams. And we not only work with the community, but we try to do as proactive a role as possible, on the weed stores, houses of prosecution, speakeasies, smoke houses, stop-and-goes, bars that are nuisance bars. And I know that we've been working up in your neighborhood among other establishments I've been to your community, I don't know how many times. And the people who are in our Public Nuisance Task Force, I think we're getting very good results. Is it perfect? No. And it's sometimes very long-term, but here's where we've managed, I think, to make a real impact on the bars as well as the weed stores and especially but not limited to those areas like along Delaware Avenue. We're seeing some major impact closing liquor establishments there. We want to make sure that the liquor establishment if it is not brought into compliance with any of the codes, the health code, fire code, safety code, all the other codes and/or the violence that attends the circumstances under which the bar is operating, we 2323 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) just close it down. We're not afraid to do that. I do want to mention something about these home improvement scams. I don't want you to be underestimating, if that's the right word, the number of cases that we handle. In the sense that one contractor may be responsible for or or 8 more homes, so it may be half a dozen people, but it 9 might be a hundred homes or more. And here's what 10 the major problem is that we find under the present 11 law which we haven't been able to overcome by either 12 by the State laws that you made reference to or even 13 our criminal law. The way the law works is that 14 it's best if we have a number of homeowners who have 15 engaged Contractor X to do home repairs. Because if 16 I come into your home and tell me to fix the roof 17 and I go out and I buy nails and shingles and some 18 tar and paper and deliver it to your house and then 19 take a couple of tiles off and I never show up 20 again, you're going to have a hard time proving that I had at the time that we entered into the contract an intent to steal from you, created a theft. However, if I do that to 20 people in your neighborhood, I get the money up front, I buy a few tools and a few pieces of equipment, dig up the 2324 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) sidewalk or do something and then never return, it's much easier for the prosecutor to prove that I am a flimflam artist. That all I'm interested in getting is big money up front and not carrying out, just spending bucks for some equipment. And that's 7 the way we build a case. 8 We also get cases, as we did most 9 recently, from television. You know, people don't 10 like to call the police or the Prosecutor's Office 11 and say, "Hey, somebody stole my money. " They're 13 embarrassed. Sometimes they'll call the television 14 stations. And one of our most recent cases came 15 exactly that way. " But they never complained to the police, these people. They never called our office. They called the television station. We don't know who's doing this. What concerns me a lot as a prosecutor is I go all over the city and I see on telephone 2325 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) poles galore, Home repair, call Joe Blow; roof repair, all these illegal signs that are on every phone pole, everything that they can attach them to. And these people don't know the people they're dealing with and when they're scammed, they don't call us up, they're too embarrassed.
Well, yes, I can understand that. Now, one of the things that we can ask L & I to do is take those illegal signs down. Somebody should be calling those people.
God bless you. I really mean it because you can go over all the City, Councilwoman, you know it, it's in your neighborhood too, it's work at home, all these scams and things, loss weight 30 pounds in 30 days, home repairs. They're all over the City of Philadelphia. If you can get people to be dissuaded because every time they put something up like that it will be torn down. It's outrageous because people are getting ripped off in more ways than you and I could talk about.
The Chair recognizes Councilman Rizzo. 2326 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET)
Just a point of information. Coming from the utility industry, if it's an electric utility pole and the utility company is notified, they will send a worker out there to remove any an illegal attachments. They will not proactively do it. You can understand why. They just don't want to be out there taking down these things. But if there's work going on in that particular facility, they'll remove it. But if you have a particular block and you ask bell telephone if it's a Bell Telephone structure or if you ask the electric utility, they will come out and remove those because they are considered even in the PUC Tariff to be an illegal attachment to an electric or telecommunications facility. Thank you, Madam Chair.
And the other thing, can a citizen take those signs down?
I can't imagine there's any real reason why anybody can't take them down. They're totally illegal. And here's the problem, I don't want to ask people to do this because what these guys do is they get a ladder. They come up with a cherry picker or something and they put it up 2327 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) there. I would not ask, and I'm sure you wouldn't either, any citizens to get a big ladder and climb up and take those poles that are nailed with these heavy-duty staples and pull off those signs because they're going to fall and get hurt. I believe it's something that has to be really be concentrated on by combination of the utility industry and the City various departments because it's improper. But here's the important part. These fly-by-night scam artist change their name just like you change your dress every day. They're Joe Blow Plumbing today and they're Acme Plumbing tomorrow. And to make sure that we have the same company, the same structure, it takes a while to build a case. But we're determined to work with any Councilperson who has notice from your constituents that this person has done X. The real problem is if it's just a one-time event, it's impossible under the criminal law to prove that this contractor at the moment he signed a contract with you had then and there an intent to deprive. Otherwise, you're left with suing the contractor. And more often not, these contractors have very shallow pockets. You'll get a judgement against them, which I suggest that you do, 2328 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) but then they change their name and then they're in a different mode.
Around that issue, is there any way or what department do you see being proactive in advertising that it's illegal or that we should be on the watch for these fly-by-night flimflam artists. I mean, who's advertizing public service announcements, that kind of thing to educate the public about this?
I think things like that must be addressed proactively by, of course, the Better Business Bureau, by us, you and I and others. And I know you talk about it and I do too, don't engage in business with people you don't know. Get recommendations from people who had them work before. Make sure that they have the proper permits, those kinds of things. The problem is, Councilwoman, that most citizens don't have in their possession a list of qualified recommended people. Many of them are alone. Many of them are elderly. They trust people because that was the era they grew up in. And when some guy says, "I can fix your roof for you," they give them a lot of money up front and they get ripped off. It's pathetic; it's very, very 2329 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) sad.
I just want to add here that Cleveland just passed an anti-predatory lending bill. And disregarding the State's effort to say they couldn't do it, because this stuff is so prevalent in our cities, and we're still trying to be proactive here in Philadelphia to let people know what's going on. Let me just ask you a question about dumping. You took a very proactive stance about dumping and saying that you were going to prosecute dumpers where is now? And I've often thought about the use of surveillance cameras in those areas where there is consistent dumping, Newtown Road, for example, where you have been a number of times doing cleanups and other areas that we just know particularly in the Logan area where that vacant land is. We have these barriers up, but people still find there where to dump. Where are you with that program now?
Well, we work with the Police Department environmental response unit on dumping. Here is a -- it's always been a problem. In order to catch somebody dumping, some neighbor, 2330 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) some person has to be able to say, "I saw a blue Ford truck with a Pennsylvania license XYZ pull up to the lot and dump construction debris inside the Jersey barrier sometimes. I mean, a vacant lot open is in one way easier to clean up then a Jersey barriered lot. But unless somebody sees a person dumping and can get some description of the person, some identification of the vehicle which is capable of being traced, most of these dumpers -- and I'm talking not about the people who through their trash out the window, but people who dump refrigerators, construction debris, and all manner and means of stuff. They don't do it at hours when most people are looking. Tires galore. They'll go to some back road someplace in the dark of night, and I know you and I have been to Newtown Road, and it's still the same problem in Tacony Park. Trucks are still going back there and dumping and the neighbors wind up trying to cleaned it up. Our problem with prosecution and the Police Department similarly is that there's nobody there to see who did it and there's nothing within the construction debris that tells who owned and who trucked it there.
What about 2331 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) surveillance cameras.
Well, here's what you have to decide. The issue of surveillance cameras has been very hot. And what you as a Council, a Body have to decide is just what you want to do with surveillance cameras. England has surveillance cameras all over, all over London, all over the country. Some cities want surveillance in their police cars. Some want it in some communities. And there's always going to be attention and a discourse between people who favor privacy versus people who want cameras. There's now this big debate about cameras taking pictures of people who go through red lights and through EZ Pass. So no disrespect intended because I favor more cameras than less. But this is not debate for me. This is a debate for this Body and on a State-wide level for the State Legislation to see. Balancing the interest of the public in catching bad guys versus the interest in people's privacy. Where do we want to go? And we can use the terrorist bombing. If the surveillance hadn't have been on in t Pentagon, we wouldn't have seen those pictures. If the surveillance cameras weren't in the banks, we wouldn't get pictures of 2332 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) bang robbers. We have to decide as a society, we're not there yet, where we want to strike a proper balance. Somebody put it to me this way. A man told me, he said, "I want the right to walk down the street and scratch myself in a place I don't want a camera to record it." It's that extreme versus what interest does this body and the public has in catching short dumpers, speeders, robbers, pillagers, bombers, et cetera. That's debate will be very, very contentious and interesting. And at that time if you want to me to express my opinion, I'll do it.
You're welcome. The Chair recognizes Councilman Ortiz.
Thank you, Madam Chair. Last year we had this debate about the issue of the individuals that have do this predatory lending. And obviously, we had quite extensive hearings in this Body and the newspapers reported it quite extensively. Some of those individuals that were reported as predators and the more evil ones 2333 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) that were there, and I asked and the same gentleman came up and what I saw on TV and I Mike Fisher prosecuting the individuals that we had brought out and so on, not you. Why not? That happened?
Most of those predatory lending cases we have worked with -- and you and I have both attended some of these meetings at Congresso where mostly poor people are taken advantage of predatory lending. Most of those cases are civil in nature, not criminal. Remember, the Attorney General's jurisdiction is mostly civil and only a little criminal. Those cases that you have referred to which Mike Fisher has brought are civil actions, not criminal.
They were also fraudulent, and they were also -- as he said, they were stealing from these individuals and quite extensive. And the issue is, why wasn't that pursued and investigated? To me, that's the issue. Why these individuals and their cases and the point that these poor people that was quite extensive in North Philadelphia, why the issue of stealing and fraudulent behavior by these individuals, why that wasn't pursued? 2334 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET)
Well, it was pursued. But remember, some of the laws that these defendants violated were not only civil laws, but they were banking laws and other laws under which we have know jurisdiction because our jurisdictions ends at the City of Philadelphia.
But according to the you just gave, there were also and they came in under -- and you had there the grouping of people that were complaining about the same individuals. They were stealing, they were saying they were going to provide so services and they.
Well, I'm going to allow Mr. Deutchman finish the answer that he may have started last year. But if a company is doing predatory lending in Philadelphia, they're not just doing it in Philadelphia, they're doing it in other places as well. Therefore, it would be --
But under your definition, the definition that was just given, these people fit right in there because they were coming, they were buying the nails, taking a few shingles, putting them it, not finishing it, and then going on to the next door. And we had people 2335 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) willing to come forward and testify and give their history. And these people were not brought up on criminal charges under the definition that was just given a few minutes ago.
Councilman. There are no cases that I'm aware of where any report was made to our office concerning that conduct that we did not investigate or that the police were not investigating.
But, again, you take a case from TV and you prosecute it. And here you had City Council hearings in which a full record was established, witnesses coming forward, testimony given, attorneys coming forward, legal services coming forward.
Councilman, I just asked Mr. Deutchman during your discourse was ever any case that Council ever heard about or was testified to ever referred to my office. And the answer was no. And I think there's a reason for that, with all 2336 3/13/02 - WHOLE- BILL 020001 ('03 BUDGET) due respect. The State Attorney General's Office deals with all of these matters. And we have not received one complaint from Council, from you, or from anybody else about an individual who's violated the Pennsylvania criminal laws over which we have jurisdiction. So the answer to your question is if no one has referred a case to us --