COUNCIL OF THE CITY OF PHILADELPHIA PUBLIC HEARING AND PUBLIC MEETING BEFORE THE COMMITTEE ON LAW AND GOVERNMENT - - - Room 400, City Hall Philadelphia, Pennsylvania Tuesday, October 20, 1998 10:10 a.m. - - - RESOLUTION NO. 980660 - Authorizing Council's Committee on Law and Government to conduct public hearings to determine what impact the proposed November ballot question, to amend the Pennsylvania constitution to allow prosecutors to have the same right as criminal defendants to demand a jury trial, will have on the citizens of Philadelphia, the criminal justice system, and the rights of the accused to a fair trial. PRESENT: COUNCILMAN DAVID COHEN, Chair COUNCILWOMAN JANNIE BLACKWELL COUNCILMAN MICHAEL A. NUTTER COUNCILMAN ANGEL L. ORTIZ COUNCILMAN RICHARD T. MARIANO COUNCILMAN W. THACHER LONGSTRETH COUNCILMAN FRANK RIZZO - - - VINCENT VARALLO ASSOCIATES, INC. Registered Professional Reporters Eleven Penn Center, Suite 600 Philadelphia, PA 19103 (215) 561-2220 COMM. ON LAW & GOV'T - RES. NO. 980660 I N D E X Judge Edmund Spaeth. . . . . . . . . . . . . 5 George Newman, Esquire . . . . . . . . . . . 17 6 Private Bar 7 William Gonzales, Esquire. . . . . . . . . . 29 Hispanic Bar Association 8 Felipe Restrepo, Esquire . . . . . . . . . . 35 9 Hispanic Bar Association 10 Ralph Wynder . . . . . . . . . . . . . . . . 42 Democratic Leader, 38th Ward 11 Jeffrey Lindy, Esquire . . . . . . . . . . . 48 vice Chair, Federal Bar Association, Criminal Law Committee in the Eastern District of PA Joel Rosen, Esquire. . . . . . . . . . . . . 53 District Attorney's Office, Chief of Major Crimes Unit Gary Tennis, Esquire . . . . . . . . . . . . 53 District Attorney's Office Chief of Legislation Unit Judge Alex Bonavitacola. . . . . . . . . . . 85 Barbara Burgos DiTullio, President . . . . . 97 Pennsylvania National Organization for Women Lisa Laura, Esquire, Legal Coordinator . . . 101 National Clearinghouse for the Defense of Battered Women, Brenda Frazier, Esquire. . . . . . . . . . . 110 Member, Board of Directors Pennsylvania Prison Society Lauren Towsend, Executive Director . . . . . 116 Citizens for Consumer Justice COMM. ON LAW & GOV'T - RES. NO. 980660 (Index, cont'd.) Peter Rosalsky, Esquire. . . . . . . . . . . 177 Defender Association. Bradley Bridge, Esquire. . . . . . . . . . . 184 Defender Association Diane Granlund, Deputy Managing Director 189 Criminal Justice Population Management City of Philadelphia Larry Frankel, Esquire . . . . . . . . . . . 197 Executive Director American Civil Liberties Union of Pennsylvania James D. Crawford, Esquire . . . . . . . . . 198 President American Civil Liberties Union of Pennsylvania Carris Kocher, Private Citizen . . . . . . . 221 Donna George, Private Citizen. . . . . . . . 228 William Dennison, Private Citizen. . . . . . 230 4 COMM. ON LAW & GOV'T - RES. NO. 980660 P R O C E E D I N G S
The Committee on Law and Government of the City Council of the City of Philadelphia is now in session to hold hearings that relate to the amendments that are being presented to the voters on November the 3rd. The specific amendment that the resolution dealt with was the amendment which would give the district attorney the right to demand a jury trial. In the preparation for this hearing, many persons have suggested a relationship between that amendment and the second amendment dealing with the question of bail and the additional restrictions with respect to bail. Under those circumstances, I'm going to permit, if a speaker wishes to deal with both amendments, the Chair will rule that such discussion is, in fact, relevant, since both amendments seem to relate to the questions of defendants' rights. And I just wanted to make that announcement at the beginning. If you want to speak about both, do. If you want to speak about either one, do. If you want to speak in any 5 COMM. ON LAW & GOV'T - RES. NO. 980660 fashion, we'd like to hear your views, whatever they are. Because there are going to be a goodly number of witnesses today, we're going to ask that each speaker attempt to limit themselves to five minutes. If you get past six, the Chair will be cruel and will deny you the opportunity to continue beyond that. We want to do that because everybody is pressed for time, and we want concise statements made by everyone. Now, I have found in the research that I have done in reading court cases that it's quite clear that people who have expressed concern about these amendments go far beyond the rank of community activists or civil libertarians because I found in the Supreme Court of Pennsylvania decisions serious concerns expressed about the amendments. The main purpose of the hearing today is to get information on both sides of the issues before the people so that they can make an intelligent and informed decision when they go into the voting booths. Whether or not the City Council 6 COMM. ON LAW & GOV'T - RES. NO. 980660 committee will make a recommendation as to a proposal to present to City Council prior to the November 3rd election, I can only thing speculate; I do not know what will be done but at least the hearing today will serve the purpose of alerting voters that there are important questions that are coming up and that they ought to be thinking about how they wish to vote on them. I would just like to read a brief statement that appears in Commonwealth versus Wharton and Commonwealth versus Coleman, a Supreme Court decision that was argued on September 26, 1980 and decided by the court on September 24, 1981. And it shows the concerns of the various issues, many of which, I assume, are going to be discussed here today. The court at various times -- I'm quoting from a majority opinion. Now, this is an opinion that I think the Supreme Court itself was divided 3 to 3; and, therefore, a lower court's rulings stood. Even though the Supreme Court, I think, had reversed the lower court, the Supreme Court, in deciding it, split by a 3 to 3 vote. In the majority opinion, statements 7 COMM. ON LAW & GOV'T - RES. NO. " In Philadelphia alone, there are approximately 3,000 criminal trials each year; I assume there are many more as of now. "As a consequence of the defendant's waiver of his constitutional right to a jury trial and the court's approval, 89 percent of these trials (speaking of Philadelphia) are conducted without a jury. "If in even a portion of these non-jury trials, the prosecution were to demand trial by jury, an enormous increase in 8 COMM. ON LAW & GOV'T - RES. NO. 980660 expenditures would result. Moreover, because jury trials take longer to conduct than non-jury trials, a marked increase in the number of jury trial would inevitably increase the already extensive case backlog in the courts. " Later on, the court says, still the majority opinion, "In agreeing or objecting to. .
" -- well, I can't say a majority opinion because it was a 3-3 decision and a decision which really reinstated the lower court's decision. The court goes on to say, "In agreeing or objecting to an accused's motion to waive trial by jury, the prosecutor, as the representative of society, has an obligation to act in the interest of a fair trial and not merely for tactical advantage. However, because the prosecutor also occupies an adversarial role with adversarial responsibilities, and because our jurisprudence 9 COMM. ON LAW & GOV'T - RES. NO. " Further on, the court adds, "No 7 justifiable reason has been or can be advanced for permitting the prosecutor to have an unrestricted, unreviewable veto over a trial court's ruling. " And then, finally, "A prosecutorial veto power immune from judicial review and serving no legitimate interest derogates both the fairness and the appearance of fairness, which are essential to the administration of criminal justice. " 10 COMM. ON LAW & GOV'T - RES. NO. " "When the accused believes and the trial court finds that the equally available and more expeditious alternative of trial by judge will secure a just result, to permit the prosecution to veto the court's decision and send the accused to a jury forum is indeed to imprison the accused in his constitutional right to a jury trial. " Now, people have differences of opinions, but the quotes I've read indicate the breadth of concern expressed by people deeply involved in the effectiveness of the judicial system and the ability to maintain a fair system. We will be entertaining today the views 11 COMM. ON LAW & GOV'T - RES. NO. 980660 that we can. I notice that Judge Spaeth is in the courtroom, and would be very pleased if he would come before us and open the discussion today. )
Incidently, I want to note the existence of a quorum. To my right is Council Frank Rizzo. Next to him and to my immediate right is Councilwoman Jannie Blackwell. I'm David Cohen. To my left -- not really, though -- is Councilman Angel Ortiz. And somewhere in the room is Councilman Mariano. So we have a quorum. Please proceed, Judge Spaeth. We're delighted to see you here today. JUDGE SPAETH: Thank you, Councilman. And I appreciate the invitation of the committee to offer some brief comment on this very important matter. I was for some years a Philadelphia trial judge and then was on the superior court, became president judge there, and my term ended in 1986. And since then, I've been practicing law of counsel with the Philadelphia firm of Pepper Hamilton. 12 COMM. ON LAW & GOV'T - RES. NO. 980660 I should like to make just two points because I'm sure, from the breadth of the witnesses that the committee will hear, that a great deal of ground will be covered to which I have no special contribution to make. The two points that I do feel very strongly about are, first, that I think this amendment offers false hope or promise. The inevitable impression that I think many citizens will get when they read the amendment is that a vote for it will somehow diminish the incidence of crime. It will be seen, I think, as a get-tough-on-crime proposal. As I say, I think that offers false hope. I don't myself see any evidence that passing the amendment will do anything at all to reduce the incidence of crime. Or to state it differently, I don't see any problem that needs correction by the amendment. The suggestion that judges are somehow soft on crime and that if the prosecutor could command a jury trial, the jury will be tougher on crime is not borne out by any figures that I have seen. A great many common pleas judges are 13 COMM. ON LAW & GOV'T - RES. NO. 980660 themselves former prosecutors, and I think there is no evidence that the rate of conviction on bench trials -- that is a trial where only a judge presides -- and jury trials differs. So that would be my first suggestion, if I may make it to the committee, that there's no 8 problem that needs correction, and that the amendment offers false assurance that its approval will diminish crime. The second comment I should like to make I feel particularly keenly about because, as I've said, I was for some years, a judge. I think that the amendment is really not even thinly veiled but a quite open judge-bashing amendment. It is at least implicitly said, and very often by proponents of the amendment explicitly said, that judges are too lenient in judging accusations of criminal conduct, that it is therefore necessary to protect against that lenience by demanding a jury trial. That assumes, as I've said, that juries will be more severe but past that point. I think that the proponents of the amendment don't give sufficient weight to the nature of our constitutional government, which 14 COMM. ON LAW & GOV'T - RES. NO. 980660 often has been compared to a government resting on three stools: the legislative branch, which, of course you represent; the executive, which the district attorney represents; and the judiciary. Now, those branches are so structured that they check each other, but they musn't bring their ability to check to the point of interfering with the proper discharge of another branch's responsibilities. And the essence of our constitutional government is an assumption that each branch will respect the other and will cooperate with the others. Now, I don't think that this amendment passes that test at all. Quite to the contrary. I think that it irresponsibly suggests that judges are not fulfilling their obligations and therefore substantially increases what is already a major problem not just in Pennsylvania but in the country: specifically, disrespect for the courts and for the law.
I can't help but feel that district attorneys often act as though and sometimes speak as though any result that is not in their favor is somehow unjust. If they don't win on all the 15 COMM. ON LAW & GOV'T - RES. NO. 980660 charges they have made, too often they are quick to criticize the court as lenient or soft or even harsher words than that. I don't think there's any basis for that, in fact, and I regret that it's happened. I hope myself that the Council will, upon your recommendation, adopt a resolution 9 opposing the amendment and that the people at the polls will reject it. I very much appreciate the opportunity to appear before you, and I wish you well in the discharge of your important duties. Thank you.
Judge, could you stay? I understand Councilman Rizzo would like to raise a question with you. JUDGE SPAETH: Of course.
Thank you, Judge. Judge, I've talked to a lot of DAs, not just here in Philadelphia but in some of the counties surrounding Philadelphia, and I've never heard one of the district attorneys even suggest that this was an amendment that would lessen crime. What I understand, it is an amendment that levels the 16 COMM. ON LAW & GOV'T - RES. NO. 980660 playing field. I can't imagine anyone thinking that having a jury of their peers to be inappropriate. So I don't understand what you mean by this amendment lessening crime. I don't interpret it that way. JUDGE SPAETH: Well, of course, sir, I can't -- I don't quarrel with your personal interpretation. My only suggestion is that I believe, and I submit it as a matter of common sense, that a great many voters will think of this as one more tough-on-crime measure, and it's not. I don't say that the district attorney says that in so many words. What concerns me is the reaction of the electorate. Now, with respect to the even playing field, I know that that is the standard phrase, which I'm sure you will hear used here today, that all they want to do is even the playing field. Well, in the first place, the playing field is already uneven, but it's uneven in favor of the district attorney who has enormous powers, starting with the discretion of whether to bring a charge at all, and then having the further 17 COMM. ON LAW & GOV'T - RES. NO. 980660 discretion to decide how severe the charge would be. Also, the idea of an uneven playing field brings me to my second point. There is nothing uneven or unfair about trying a case before a judge alone. That doesn't make the playing field uneven.
I thank you very much. And just to note an interesting matter, I understand that the Pittsburgh papers this morning are containing an item saying that Allegheny County district attorney Steven Zapalla, Jr. says he opposes a proposed Pennsylvania constitutional amendment that would give prosecutors the right to demand a jury trial in criminal cases just as defendants can. "I am not in favor of it," Zapalla said in an interview. "I am of the view that the purpose of the constitution is to protect the rights of the individuals. I don't see any need to protect the government from the people. "I have not encountered any problem in 18 COMM. ON LAW & GOV'T - RES. NO. 980660 Allegheny County. We have a dedicated criminal bench, judges who decide criminal cases, and they haven't had any problems proceeding with any prosecution." So that even, apparently, among at least this district attorney -- I don't know how others feel -- there is a wide opinion. But thank you very much, Judge Spaeth. JUDGE SPAETH: Thank you.
I am very pleased to have had you here. George Newman, a member of the private bar and a past chairman, I think, of the criminal justice section of the Philadelphia Bar Association. (George Newman comes forward.)
Thank you very much Councilman Cohen, Members of the Council. I have a prepared statement which I would like to submit to the Council, if I may. I've already sent some copies.
Yes. The 19 COMM. ON LAW & GOV'T - RES. NO. 980660 sergeant-at-arms will take them and deliver them to the members of the committee.
Thank you very much. I've prepared enough copies for everybody.
Thank you for affording me this opportunity to present my views, the views of a member of the Private Defense Bar to City Council. I would like to echo the views of Judge Spaeth in saying that this amendment will not stop crime, lower crime, or change anything. And I'm very aware of Councilman Rizzo's question. And I look at a newspaper article that was published yesterday in The Philadelphia Inquirer. And perhaps "lessening crime" is not the exact term that ought to be used. But the Pennsylvania District Attorneys Association and Governor Ridge are on record as saying that this amendment is a way to protect the public by making it more difficult for defendants to shop for judges. And I think that's another way of saying essentially the same thing. And that statement is simply untrue, and I would be 20 COMM. ON LAW & GOV'T - RES. NO. 980660 glad to say why. Without repeating what Judge Spaeth said, there are five reasons why not only will this amendment not make things better for the people of Pennsylvania, but it will make it worse. One of them is cost. The district attorney, by having the power to demand jury trials in perhaps as many as thousands of cases in Philadelphia if it wishes, has the potential to absolutely explode the budget. In my prepared statement which I submitted -- I sent a copy to staff for Council about a week ago -- I opined that if the district attorney were to ask for juries in even 10 percent of the cases, the budget would absolutely explode. And I found it very interesting to note that Judge Bonavitacola, the president judge of the court, in the article that was published yesterday -- and I had no knowledge of his comments -- said exactly same thing. If 10 percent of the cases that are now tried as waiver trials become jury trials, it's going to absolutely explode the budget. 21 COMM. ON LAW & GOV'T - RES. NO. 980660 And what that's going to mean is that City Council, while it still has the responsibility to fund the courts, or the people of Pennsylvania, will see tax increases because of these increased jury trials -- because of the cost of the trial, because of the increased numbers of district attorneys, the increased numbers of paid defense counsel, it will be necessary, the increased numbers of prisons that we may have to set up, probation officers, social workers, prison guards. It goes on and on and on. And if we don't raise taxes, we'll have to cut services. I don't think anybody in this Council wants to do that. The cost factor, which perhaps others who are here to speak today will addressed, has the potential to be enormous. And, mind you, if the Commonwealth has this power to demand juries, there will be no check on that power. There will be nothing to stop them from demanding juries whenever and as often as they wish. Racial bias is another area. And other people have alluded to the possibility that. For example, a person from Philadelphia who might go 22 COMM. ON LAW & GOV'T - RES. NO. 980660 to another county might not feel comfortable having a trial by a jury in that county. Maybe the person is black or Hispanic, and they don't want to go in front of a nearly all-white or white jury in another county. That's a reasonable concern. But there's other concerns. If the Commonwealth has this right to demand a jury at will, the Commonwealth can, and I'm sure they will -- I'm sure speakers from the Commonwealth will assure you that they will never do this, but the district attorney can say, Well, this black judge or this Hispanic judge or this oriental judge, we don't like the way they rule; we're going to demand a jury every time. There's a potential for racial bias in the demanding of a jury, depending on who the defendant is, depending on who the judge is. There are a lot of clients of mine who are not going to be able to afford a jury trial. A jury trial is not necessary, and they simply can't afford it.
The result, and perhaps more for a lot of other lawyers, it will be that those people will have to frankly say, Maybe I just have 23 COMM. ON LAW & GOV'T - RES. NO. 980660 to plead guilty. Even though I'm innocent, I have to plead guilty because I can't afford a jury trial, I can't pay you for it.
What about the aspect of the delay in the aspect of the calendar being bogged down in terms of courtrooms being held up, and so on, all the way down the line, and what this would do. 'Cause justice delayed is justice denied. And what does this do to the defendant and to the justice system as a whole?
Interesting you should ask, Councilman Ortiz because we had a rule of procedure in Pennsylvania that required the Commonwealth to try criminal cases in 180 days. And then some years ago, that was expanded to 365 days because the Commonwealth said, We can't try these cases in six months. Six months isn't enough to time for us to try them. We need a whole year to try these cases. If we have hundreds of more jury trials or thousands of more jury trials, we may find 24 COMM. ON LAW & GOV'T - RES. NO. 980660 people sitting in jail because of -- partly because of the bail amendment that the prosecution is also pushing, asking that not only people charged with murder but anybody who could be charged with three strikes or anybody who could be a so-called Megan's Law violator. Thousands, potentially thousands of defendants jailed without bail, all these people may have to wait much longer for their trials. I mean, the two are linked together, and they create an astronomical problem. And we find that the Supreme Court of Pennsylvania has to change the rules and say, Well, now you can have two years to try the case, or three years. We don't know but, I mean, you're quite right, it's going to be a problem.
Well, we have a problem right now with prison overcrowding, and this just only will exacerbate that.
Both of the amendments. I mean, the bail and the one on jury trials. 25 COMM. ON LAW & GOV'T - RES. NO. 980660
I totally agree. The fourth area -- and I'm trying to move along because my submitted statement does cover a lot of this area -- frankly is the one that Judge Spaeth alluded to as the second point, which is an issue of power. This constitutional amendment, particularly the right of the Commonwealth to demand a jury trial is all about power. And I agree with him; it is, frankly, an amendment which is designed to intimidate the judiciary. It's an amendment which is designed to assert naked power against the judiciary and say, If you don't play ball with us, if you make decisions we don't like, we will create bad statistics for you. As you may know, judges are rated within the judiciary on how many cases they dispose of.
And, frankly, it is linked to Messiah Jackson. That was about -- I -- I COMM. ON LAW & GOV'T - RES. NO. 980660 differ with my colleagues in the district attorney's office. I don't think that was about questions of justice and equity; I think it was about power. It was about saying to the judiciary, If you don't rule our way, this is what's going to happen to you. And I've had judges say to me they feel intimidated by what happened to her. Whether you agree she should have been on the federal bench or not, that was the result. This particular amendment is going to have an enormous intimidating factor, and it will not level the playing field because the Commonwealth does already have a huge amount of power. It has not only that power to charge and to choose which charges; it has the power to decide whether mandatory sentences apply or not, whether sentencing guidelines apply or not. The Commonwealth can waive all of those things. It has the resources, in Philadelphia, of a 6,000-member police department, with hundreds of detectives to back it up; whereas the defendant may have a lawyer, maybe an investigator, probably not. It's a question of power. And as we 27 COMM. ON LAW & GOV'T - RES. NO. 980660 all now, absolute power corrupts absolutely. If we hand this power over to the Commonwealth, many of us may come to regret it later on. And the last point I'd like to make regarding that is -- and before I move on to that, let me just say one other thing. In response to the comments of the district attorney of -- the Pennsylvania District Attorneys Association and Governor Tom Ridge that they want to make it more difficult for defendants to shop, I just want to address that. Good morning Councilman Nutter.
Judge-shopping is a red herring. Most of the cases in Philadelphia now, all the homicide cases, all of the major cases are assigned to a particular judge. The only cases that are not assigned to a particular judge are assigned to one of the felony waiver courtrooms, and those are what we call "the minor felonies." They could be a third-degree felony shoplifting, a burglary where no one was threatened, certain kinds of drug cases, auto theft cases. They're not the major 28 COMM. ON LAW & GOV'T - RES. NO. 980660 cases. And, mind you, the district attorney has absolute power in deciding what's a major case and what's not a major case; yet another power that the DA has. But even there, the only power a defendant has in one of those waiver courtrooms is to demand a jury. And currently, the way the system is set up, if a defendant demands a jury out of one of those waiver room, they get Judge Mayer. That's it, no other judge. Judge Mayer, who you may have read the article in The Philadelphia Weekly is vying with Judge Roy Bean to be the toughest judge in the world. And his sentences are the toughest and his rulings are the toughest. So that's what you get when you demand a jury. So there is no judge-shopping. If you hear that there's going to be judge-shopping, that's simply not true. My last point and the last reason why you should condemn this proposed constitutional amendment is that it trivializes Pennsylvania's constitution. We've had a constitution for 29 COMM. ON LAW & GOV'T - RES. NO. 980660 hundreds of years. It was a constitution that was devised by our founding fathers to set up those checks and balances which Judge Spaeth referred to. And those are important checks and balances. If we start shifting the power away from the judiciary to protect the rights of every citizen, then we begin to destroy those checks and balances. If every time the district attorney is unhappy with a particular ruling of a particular judge or jury -- look at the Simpson case, look at the Center City Jogger case; they didn't love all jury verdicts either. But if they decide that each time a ruling goes that they don't like and they want to change the constitution, then we're all in trouble. Thank you for permitting me to speak to this committee, and I'll answer any questions that you may have for me.
If not, thank you very much for your appearance here today.
The next witness will be -- is Mr. Gonzales here? Will Gonzales? (William Gonzales and Felipe Restrepo come forward.)
Yes. To my right is Felipe Restrepo. He is the former president of the Hispanic Bar Association, and I am a board member of the Hispanic Bar Association.
Thank you. Let me first begin by saying that the current president, Ed Otero, was unable to be here today to address this committee but, you know, he is also very concerned about this proposed amendment to the Pennsylvania constitution.
I want to ask you, Mr. Gonzales, to please speak directly into the microphone. The acoustics in the room are not 31 COMM. ON LAW & GOV'T - RES. NO. 980660 good, but that will help a lot in enabling everybody to hear you.
Thank you. Thank you for giving us a chance to discuss our concerns regarding the proposed amendment to the Pennsylvania constitution granting the Commonwealth the right to demand a jury trial in a criminal case when a defendant wishes to be tried by a judge. The Hispanic Bar Association opposes the amendment because the measure will seriously undermine a defendant's right to fair trial in this state. We are painfully aware that in many parts of Pennsylvania, there is considerable prejudice against Hispanics. In many instances, an Hispanic defendant may believe that his or her case will be considered more fairly by a judge than by a jury. Such defendants should not be forced to go to a jury trial when there is fear that the judgment of jurors will be clouded by considerations of race gender, ethnicity, and language. We are also concerned about the measure because racial discrimination continues to be a 32 COMM. ON LAW & GOV'T - RES. NO. 980660 significant factor in jury selection. This occurs at two levels. First, many jurisdictions in the Commonwealth fail to maximize the participation of people of color in the jury pool. And, second, prosecutors continue to use our ethnicity as a reason to exclude members of our community from serving as jurors in criminal trials. Prosecutors will also use language to exclude us, our inability to speak English as a means to remove us from jury -- from serving on a jury, or even our ability to be bilingual. And Felipe Restrepo will expound on that when I'm done with my remarks. In many jurisdictions in the Commonwealth, the jury pool does not represent a fair cross-section of the community. Many of these jurisdictions over-rely on voter registration and driver's license lists to call citizens for jury duty. This short-sightedness severely limits the ability of those jurisdictions to call Latinos for jury service. The proposed amendment denies the defendants the opportunity to go straight to a trier of fact who can be less manipulated by potential political considerations 33 COMM. ON LAW & GOV'T - RES. NO. 980660 in the administration of justice in a given jurisdiction. The few Latinos that do make it to the jury pool, despite this first hurdle, however, are not necessarily assured of serving on a jury. Discrimination becomes a barrier again when some prosecutors are prejudiced when they are impaneling a jury. A summary of recent decisions compiled by the ACLU of Pennsylvania, and which Larry Frankel, the ACLU's executive director, will present later, reveals that some prosecutors in Pennsylvania have acted in a discriminatory manner in the jury selection process. The release last year of a Philadelphia district attorney's office training video featuring then-assistant attorney Jack McMahon demonstrates how prosecutors who do not have the proclivity to use race, gender and ethnicity as a factor in impaneling juries are encouraged by their supervisors and mentors to do so. The training tape scoffs at the principle of fairness and impartiality of juries and exhorts a win-at-all-costs attitude. 34 COMM. ON LAW & GOV'T - RES. NO. 980660 The prosecutors role of justice seeker and protector of the interests of the citizens of Commonwealth, which includes the accused, who is innocent until proven guilty, is cast aside in the interest of collecting convictions. Denying the defendant the opportunity to be tried solely by a judge takes away one important protection against potential prosecutorial improprieties. The proposed amendment, together with the drive for convictions instead of the pursuit of justice will increase the use of prosecutors of coercing the defendants to plead guilty to lesser charges simply because he or she cannot afford to pay a lawyer for a jury trial. Not all defendants have a public defender. Many of our members represent middle-income people who are charged with committing crimes, and they should not be forced to plead guilty merely because they can't pay for a jury trial.
As some Hispanics are making strides to enter the middle class, the proponents of this measure seek to move the goal posts of justice. Access to a public defender or court-appointed 35 COMM. ON LAW & GOV'T - RES. NO. 980660 defender does not immunize the defendant from this tactic by the prosecution. Financial pressure will be great on the courts and the public defenders to meet the added cost of the additional jury trials that the passing of the amendment will bring. The Commonwealth should be prepared to substantially increase the funding to public defenders offices and courts if this measure is passed. The interests of justice require it. The proponents of the measure do not need to tinker with the state constitution to substantially increase the number of criminal cases that go to a jury trial. Defendants themselves will increase their demands for jury trials if the Commonwealth does everything it can to ensure that all jurisdictions maximize the inclusion of the minority groups in the jury pool and that severe sanctions are imposed on prosecutors that use impermissible considerations of race, gender, and ethnicity when impaneling a jury. We call on the proponents of the proposed amendment to make their priority the 36 COMM. ON LAW & GOV'T - RES. NO. 980660 elimination of race, ethnic, and gender discrimination from our courtrooms and not the undermining of fundamental notions of fair proceedings. Thank you again for this opportunity to address this important matter.
Thank you, Mr. Gonzales. Let me just mention the addition of Councilman Nutter and Councilman Longstreth. That means six of the eight members of this committee are participating in the hearing. We're hoping the other two members will also be able to attend. Thank you. Any questions of Mr. Gonzales by members of the committee? (No questions at this time.)
Very briefly, Councilman. I just want to comment on one issue that is unique to --
Would you identify yourself for the record. 37 COMM. ON LAW & GOV'T - RES. NO. 980660
I am a former president of the Hispanic Bar Association of Pennsylvania, and I also have tried quite a few cases in the local and federal courts. My perspective -- what I'd like to focus on for two minutes is language. And that's one of the issues that really differentiates the Latino community from other communities.
What I'd like to emphasize is language, specifically the problems that non-English speaking folks have in front of a jury. There's a lot of misconception or a lot of negative inferences that are drawn by jurors when somebody uses a translator, particularly in narcotics cases. And jurors may infer that the individual's here illegally, is trying to get over on them through the use of an interpreter. Jurors may also wonder how this person 38 COMM. ON LAW & GOV'T - RES. NO. 980660 can support themselves other than doing illegal activities, that they don't speak English; when, in many instances, the individual may speak English but not enough to get him or herself through a trial. And I think judges, I would assume and hope, are more sensitive to his issue than the average juror because they're dealing with non-English speaking people on a daily basis. A second issue I'd like to bring to the panel's attention is a very bad decision by the United States Court known as "Hernandez versus New York." In Hernandez, the United States Supreme Court held that language-based preemptory strikes are race-neutral. In other words, that prosecutors can strike people from a jury pool because they speak the language that is going to be translated. In Hernandez, the prosecutor struck Spanish-speaking people from the trial pool. The defense objected, saying this violated Battsen (ph.), and we all know that Battsen prohibits race-based strikes. The prosecutor justified the 39 COMM. ON LAW & GOV'T - RES. NO. 980660 strikes on the theory that this person, because they speak the language at issue, they can't be sure that they will be true to the interpreter. The Supreme Court held that that is a race-neutral reason. It invites abuse. In other words, it invites prosecutors to strike people because they speak the language. What you have, then, is a situation where they can keep bicultural and bilingual people off the jury pools. It also allows a situation where the only person in the courtroom that may be able to identify a problem with the translation is dismissed because that person speaks the language. Those are just some of the issues I think that are unique from the Latino perspective, and I don't want to limit it to Latinos. I want it to be anybody that speaks a foreign language. Thank you.
Thank you very much. Any questions of either of the speakers?
Councilman Ortiz? 40 COMM. ON LAW & GOV'T - RES. NO. 980660
I don't think it was either Scalia or Thomas. I think it was probably -- it was in the early '90s. I don't know who wrote the opinion, but it's still good law, unfortunately.
Yeah. In terms of -- right now, the population of Latinos within the criminal justice system, Mr. Gonzales or Felipe, can you give us an idea of what percentage of the population in the criminal justice system is now Latino?
I'm afraid would just be guessing. I know there's some folks here from the Defenders, and maybe they have more concrete numbers. Unfortunately, the numbers keep growing, and I would say it's at least -- at least 20 percent. It's just a guess, though. 21
But would it be your 25 -- but would you presume that if this amendment 41 COMM. ON LAW & GOV'T - RES. NO. 980660 gets approved, that the population of Latinos would increase within the prison population of the Commonwealth?
I would think that -- yeah, I'd just be guessing, but I'm assuming that maybe folks that couldn't make bail, some of the people that couldn't make bail. And if the jury trials become more and more common, I'm afraid the system going to become more and more backed up, so the population might increase. One result might be that folks that just cannot make bail and are awaiting for their trials because I'm afraid that if this amendment does pass and the prosecutors do ask for even a 5 to 10 percent increase in the number of jury trials than there are now, the system can -- it just has to start getting more and more backed up. And I know that the defenders that are in the room are going to discuss the impact of more jury trials being requested by the prosecutors.
So poor people, if 42 COMM. ON LAW & GOV'T - RES. NO. 980660 they cannot make bail, even if they are innocent, they will be sentenced to a jail term just by the fact that they cannot provide the monetary solution to their problem.
That's correct. For those that could not make bail pending trial, that's correct.
And also the factor that by making it more expensive for people to retain counsel, obviously, attorneys charge differently for a jury trial than for a non-jury trial. And so this is going to be an economic pressure for people, even totally innocent people from, you know, judging and making an economic decision of accepting a lesser charge just to move on because they cannot afford to go the full ride with an attorney.
I don't think that that point is really understood. We have a mentality of punitive situations in terms of crimes, so this is viewed, again, I think, as Judge Spaeth said, as another tool in the anti-crime bag. And this is really to send a message out there to all these criminals, you 43 COMM. ON LAW & GOV'T - RES. NO. 980660 know, that we are tough, we're going to put you away. But the aspect of individuals who are innocent coming into the system and how much it's going to cost them, and if we can break them economically just in order for them to defend themselves is not a point that really has been understood.
And when you bring into it factors things like the 39th District scandal and other situations that happen in North Philadelphia, specifically in the Latino community, which is of police accountability, you know, you're putting people who, one, have an unfortunate encounter with a bad officer can now put them on the road to, you know, you know, a criminal conviction. And it's -- and it's -- it just makes it worse and worse, rather than making it more just.
Ralph Wynder, 44 COMM. ON LAW & GOV'T - RES. NO. 980660 Democratic Leader of the 38th Ward. (Ralph Wynder comes forward.)
Thank you, sir. I'd like to thank this committee of Council for calling this hearing on such a critical issue that will be placed before the voters on November the 3rd. I believe that Question 1 and 2, the question that addresses no bail for certain defendants and the question that addresses the granting of rights to the prosecution to choose the jury for certain individuals who may choose otherwise are amendments that are on the verge of unconstitutionality. I believe that it casts a very dark shadow on those legislators who voted even for this amendment to have reach this point in time. That those who would take away the rights of people to choose not only threaten the rights of people who they intend to threaten and damage, but it also threatens their own rights. That to support a bill such as the right to take away -- 45 COMM. ON LAW & GOV'T - RES. NO. 980660 such as this one, which takes away the right of a person to choose their own jury, choose their own judge, to me is an expansion on the Dred Scott decision -- not the decision, but the statement that is well known during the Dred Scott case was that a black man had no rights that a white man was bound to respect. And in this case, I think that the expansion is that a defendant would have no rights that a prosecution would be bound to respect. That this is not just an assault upon the Afro-American and minority communities, which it is, I'm sure, intended to be used against the most, but it is an assault on all people who would at sometime or another be accused of a crime unfairly. We have just had a gentleman who sat in prison for over a year because of a mistake, an oversight or a deliberate act by someone not to check the DNA contents that would have released him the day after he was arrested. These kind of mistakes or deliberate actions, whatever it may be in the end, have always been utilized more frequently against a certain group of people than 46 COMM. ON LAW & GOV'T - RES. NO. 980660 others. And I see these two particular amendments as further assaults on the rights of people who have historically been misaccused -- not misaccused but accused, who have historically been railroaded, who have historically been mistreated and discriminated against, not only by white folks in a racist manner against folks, but against government. I see this law as giving the criminal more rights because the criminal in often cases comes with a white shirt and a tie; he is not always that dark figure that we read about in the papers that hits someone in the head and takes their wallet. In this case, I see political criminals with bad intentions who intend to assault not only a segment of the population but the entire population by making an attempt to change the constitution and the wise words and deeds of our founding fathers. So I would just like to speak to all of you who are a part of this hearing today. I would like to ask you to -- not only the committee of 47 COMM. ON LAW & GOV'T - RES. NO. 980660 the Council but the whole of the Council to pass a resolution out of City Council condemning those who question and vote and ask the people to oppose them. I would ask for all the media folks to paint these two questions in the true light that they are intended to be, and that is to strengthen the hands of those minority official criminals who sit in the legislature, who may sit sometimes in City Council, who sit in our police departments, those minority of people who are only trying to strengthen their own hands at the expense of using the law against innocent people. And so I ask you to carefully consider what this amendment would do to our society and not only all of the wise statements and the legal statements that have been made in terms of considering the costs, which would be enormous. I mean think that in many cases, we consider the costs as being more important than the morals and ethical issues.
But I am not a lawyer, but I am an individual who has lived in this city and who has seen and faced and felt discrimination. 48 COMM. ON LAW & GOV'T - RES. NO. 980660 And as a representative of the 38th Ward, I will be strongly advocating my community people to oppose this question, advocating other ward leaders to do the same, and making sure that Philadelphia, who this -- I think these questions are aimed against more than any other county in this state is not used as a pawn in a political gain to create further injustice across the city and state of Pennsylvania. I thank you again for giving me this opportunity to speak, and may we do the right thing.
Thank you very much, Mr. Wynder. I think, certainly, your statements got to the heart of the matter. There are many of us who are asking our people to vote no on and 2, and yes on 3, the questions on the ballots. I think that we entering a time where, unfortunately, people's rights are challenged in all governmental boards and bodies in this country. Just even in our City Council, with the 49 COMM. ON LAW & GOV'T - RES. NO. 980660 quality of life, the right of people to stand or sit or walk unfettered by government, the right, we're still introducing more legislation. Just last week, one of my colleagues introduced some legislation that said two people could be considered a gang and not have rights. We've had legislation introduced here that says people can lose their Section 8 certificate or renters can -- and also renters can lose the ability to rent to Section 8 people if they make too much noise, and they don't say what too much noise is. So I think that the danger of this is, as you said, that any law that abridges one person's rights certainly diminishes all of us.
And we thank you for your commitment and your concern and to bringing the spirit of this whole issue to Council.
Thank you very much, Mr. Wynder. We're delighted you were here. Jeff Lindy. 50 COMM. ON LAW & GOV'T - RES. NO. 980660 (Jeff Lindy comes forward. )
Thank you, Councilman Cohen and members of Council. I am a former federal prosecutor from Philadelphia, a former state prosecutor from Brooklyn, New York. I'm currently vice chair of the Federal Bar Association Criminal Law Committee in the Eastern District of PA, which, of course, includes Philadelphia. And I am very active with the Philadelphia Bar Association. I appreciate the invitation to speak today, and I appreciate the opportunity to give some very brief comments. I will address the difference between the federal and state systems, and I won't do it by way of a law school lecture or a common law class of any sort. I'm just going to merely say that the federal system is different than the state system. And I have followed the debate around this constitutional amendment, and I have heard people on all sides because it's a natural thing to say that, Well, the feds have it. And, indeed, the feds do have it. The feds have a system 51 COMM. ON LAW & GOV'T - RES. NO. 980660 whereby you can't get a judge trial unless the prosecutor says okay. When I was the federal prosecutor, and, indeed, when I was a state prosecutor, my feeling was, and my feeling still is today, and the colleagues of mine who are still on the prosecution side whose objectivity to their job, I respect, have always felt that if the case is good, it doesn't matter who you try it to. And, indeed, that is the prosecutor's charge. If the case is good, if the evidence is there, you take it to a judge, you take it to a jury; it doesn't matter. If there's a constitutional amendment, which there is, to change that, then there's some sort of subtext. Now, I'm not involved in the realm that you are involved, and I'm not an expert in the political affairs the way you are, so I don't know what the subtext is here. But I do know, as a former federal prosecutor, if the case is good, you try it, and you try it anywhere to anybody. The federal system is different. You have a five-year statute of limitations in every case. If a postal worker picks up a stack of 52 COMM. ON LAW & GOV'T - RES. NO. 980660 stamps and seals it and he gets indicted for a federal crime, it's a five-year statue of limitations. Tax cases is a six-year statute of limitation? Why? Because the federal system is charged with investigating and then prosecuting as a matter of deterrence. State crimes are much different. If a cop's on the street and sees a crime, he's got to take the criminal off. He's got to stop that crime. You arrest first on the state system. And you investigate, if at all, if you have to at all, you investigate later. And the reason for that is the volume. The state cops have got to do their job, they've got to stop the crime. The feds, it's very different. They have to investigate first. That is reflected in the federal rules and procedures. A federal judge may not participate in any plea negotiation. It is absolutely forbidden. In a federal case, in most federal cases, you will never see the federal judge. The case can be going on for four or five years; you will not see the federal judge until you come into court and your client pleads guilty or goes to trial. 53 COMM. ON LAW & GOV'T - RES. NO. 980660 The state judges are charged with the responsibility to participate in plea negotiations. And the reason is you need the state judges to do that. If there's a problem with state judges, then we have elections, we have other things that can be done, and there are mechanisms in place to deal with judges if there are problems for people who have the problems to deal with the judges. The remedy is not a constitutional amendment. The state system is different. It is a large volume of cases. The federal system does not have a large volume of cases. And, therefore, the state judges have to be involved in the plea process, they have to be involved in the disposing of cases. The federal judges do not and indeed cannot. So -- and my comments are concluded with that.
To the extent that people are drawing analogies with the federal system, it's an analogy which is misplaced. It's an analogy, respectfully, which is wrong. The federal system is different. Federal law enforcement authorities are charged with different responsibilities than 54 COMM. ON LAW & GOV'T - RES. NO. 980660 state law enforcement authorities. Thank you very much again for this opportunity.
Well, thank you, Mr. Lindy. May I just ask one question?
Have you arrived at a personal decision as to how you would vote on this issue? Have you arrived at a personal decision, and would you be free to state that? I think I understood what you said, but I --
Very good. Any question of Mr. Lindy? (No questions at this time.)
The next is Gary Tennis, Chief of Legislation Unit in the District 55 COMM. ON LAW & GOV'T - RES. NO. 980660 Attorney's Office; and Joel Rosen, Chief of Major Trials. Now, both of you can come together. (Gary Tennis and Joel Rosen come forward.)
Is there anyone else from the's district attorney's office?
Okay. And go in whatever order you choose to go. And would sergeant-at-arms pick up the. . . Thank you. And whoever is going to speak first, please identify yourself for the record. I'm going to suggest that there be no 17 questions by members of the committee until both witnesses have testified.
Questions then might be directed to either one. Thank you.
Good morning. My name is Joel Rosen. I am the chief of the major trials division.
Would you bring the 56 COMM. ON LAW & GOV'T - RES. NO. 980660 microphone right close to you.
Can everyone hear me? My name is Joel Rosen. I'm the Chief of the Major Trials Division of the Philadelphia District Attorney's Office. I want to thank the Councilmen and Councilwomen for giving me the opportunity to speak here, as it appears to be the lone voice here today in favor of amending the constitution to allow not just criminal defendants and people charged with crime, but everybody the right to have their day in court in front of a jury. The right to a jury trial is probably the most important, most fundamental right that exists in our legal system to ensure fairness. The jury is independent. They do not know the litigants on either side, and they do not know the lawyers who represent either side. They're not an arm of the government; they merely decide the case on the facts. Someone involved in a lawsuit can go to a jury and not have to worry that there is some other agenda motivating a judge that will 57 COMM. ON LAW & GOV'T - RES. NO. 980660 influence the decision in the case. That is why a jury trial is the cornerstone of our judicial system. It means that cases can be decided by citizens from our communities and not by the government. Because a jury is so fundamentally important, our legal system is built around the right to a jury trial. Our constitution guarantees the right to a jury trial. There is no 11 constitutional right to a waiver trial. In order to have a non-jury trial, that constitutional right must be waived. Almost everybody connected with the legal system has the right to a jury trial. If you're charged with committing a murder, you can have a jury decide your case. If you slip on a crack in the sidewalk and you're injured and you sue the city, you can have a jury decide your --
Do you have a copy of that? 58 COMM. ON LAW & GOV'T - RES. NO. 980660
Thank you. I will be happy to supply all the members of Council with this statement. When I'm done, I can go back and make copies.
I just thought you were reading from here, so I'm trying to read along.
No, I didn't hand that out in particular. This is my own statement on behalf of the office. And I that you don't have a copy. I didn't realize that -- I know some of the previous speakers didn't have copies; I didn't realize that was required. But if you could allow me to --
It's not required. It's merely helpful to members of the committee.
If you're charged with 59 COMM. ON LAW & GOV'T - RES. NO. 980660 committing a murder, you have the right to a jury trial. If you slip on a crack in the sidewalk and you want to sue the city because you are injured, you have the right to a jury trial. If you enter into a contract --
When you say "you" have a right, you're speaking of a particular defendant or OF A particular plaintiff?
Anybody involved with the legal system. If I could be -- Councilman, I'll be happy to take any questions you have. If I could just be allowed, like the other speakers --
No, I just wanted to be clear as to what it was you were saying the.
If your company enters into a contract with another company and the contract's broken by the other side, you can sue the other company and have a jury decide your case. 60 COMM. ON LAW & GOV'T - RES. NO. 980660 It seems that everybody has a right in our legal system to ask for a jury trial in Pennsylvania, except the representative of the community and of the victims of crimes in criminal cases are the only people who can't get a jury trial in a case in our legal system. If you're a person who is raped or robbed or shot, your representative in the courtroom, the district attorney, cannot ask for jury trial on your behalf. The defendant charged with the crime against you has total control of how the case is going to be tried.
Yes, it is true, Mr. Ortiz. It is only the defendant who can say whether it is going to be a jury trial or a non-jury trial.
The two witnesses should make their statements before we have any questions..
I agree. It is true Councilman Ortiz, it is completely true. It is only the defendant who can decide today --
No, no, it -- 61 COMM. ON LAW & GOV'T - RES. NO. 980660
-- whether it is a jury or a non-jury trial. If a defendant is in front of a judge whom he think is favorable to his case or even to his attorney, then he will ask for a waiver trial, and the victim will be denied the most fundamental right that exists in our criminal justice system, having an unbiased jury decide the facts of his or her case. The current system that exists is completely one-sided and completely unfair to victims. All across the state, there are instances where the system is manipulated in favor of the person charged with the crime. The majority of the judges are decent, hard-working jurists who hear and decide the cases fairly, but they are also human beings. Some judges are just not fair in certain types of cases. These can be date-rape cases, child assault cases, cases calling for mandatory sentences, or even first-degree murder cases. If you are a victim in a case of that nature, you will not receive a fair trial in front of that particular judge. There's nothing you can do, and there's nothing that the assistant 62 COMM. ON LAW & GOV'T - RES. NO. 980660 district attorney can do because the victim is being denied the right to a jury trial. Why should this group of people be denied the right to a fair trial? People in our community need to be able know that when they come into our courts as victims, that they have the same rights and the same opportunities for fairness as the criminal defendant. Every assistant district attorney has experienced the following situation more than once: You are in front of a judge whom you believe will not render a fair verdict, the victim asks you how you think the case will turn out, you tell the victim you think there are problems because this particular judge is not fair. The victim then asks, Why isn't there a jury trial? And our response is, Only the defendant gets to decide whether the case is a jury trial or a waiver trial. And the victim responds, That's not fair. Everyday people who come into contact with our system don't understand why it is so one-sided. They don't understand why they don't have the same rights as the criminal defendant. 63 COMM. ON LAW & GOV'T - RES. NO. 980660 And there's no good explanation, no overriding legitimate reason to deprive these people of these rights. There are several arguments that are being made by opposed to this amendment: that it will cost too much, that it gives the district attorney too much power, that it will create a backlog in our court system. When examined closely, these arguments do not hold water. But more importantly, these are inappropriate arguments to make against the granting of such a fundamental right to everybody. Imagine saying that we are going to take the right to a jury trial away from a criminal defendant because jury trials cost too much, or because it would create a backlog in our court system. There would be a justifiable cry of outrage against anybody taking the defendant's precious right to a jury trial away from him because of cost. Why, then, are we so willing to use these excuses to deny the same rights to victims? Should we say that a rape victim isn't entitled to have a jury trial because it costs too much? 64 COMM. ON LAW & GOV'T - RES. NO. 980660 Should we say that a homicide victim's family cannot seek a jury trial for their murdered loved one because the trial would take too long and might create a backlog? Of course not. City Council is holding these hearings to determine the impact of this amendment on the defendant's right and on the city budget. There will be no impact on the defendant's rights. When a prosecutor demands a jury trial, a defendant gets what he is guaranteed by the constitution, a jury trial. There is no right to a non-jury trial under the law. And, in fact, there was a recent Pennsylvania Supreme Court decision which addresses this variation as well as a United States Supreme Court decision which addresses this issue.
Where in both of those cases, in the Pennsylvania case, a defendant wanted a non-jury bench trial, the judge told him, no, you are getting a jury trial. The defendant complained that his rights were being violated, and I assume that that's the issue that this Council's looking into. And our Supreme Court, in an opinion, said 65 COMM. ON LAW & GOV'T - RES. NO. 980660 no, there's no violation of rights; a defendant has no constitutional right to a non-jury trial. You have a right to a jury trial. S. Constitutional law have provided you with. That case is the case of (unintelligible) versus Robert Cook. There's also a 1965 Supreme Court case, Singer versus United States, which held the very, very same thing, dealing with the federal statute, which is doing the same thing that our state statute is attempting to do. Nor should there be a significant impact on the city's budget. There were 640 jury trials in Philadelphia last year in the Major Trials Homicide Program. A substantial increase in the number of jury trials would be a 10 percent increase. I think everybody's pretty much agreed to that. This would mean an additional 64 jury trials a year. There are judges who hear jury cases 23 in the common pleas court, majors, and homicide 24 program. Therefore, each of these judges would 25 only be hearing an additional two to three jury 66 COMM. ON LAW & GOV'T - RES. NO. 980660 trials additionally every year. This is not a significant increase at all. This increase would not create a backlog in the system, nor would it increase costs significantly. The district attorney's office has no 7 desire to create a backlog in the system, and we are committed to limiting the number of prosecution jury demands to a manageable number. Backlog in the system creates delay in getting cases tried, and there is nothing that hurts a prosecution case more than delay. We want cases tried as quickly as possible so that our witnesses are still available and the crime is fresh in their minds. It is in our own self-interest to prevents backlog and delay in the trial of cases, and we will do so. When we had this right in the past, we previously had the right to demand a jury trial in the early eighties. And experience shows that it was used by the prosecution on a very, very limited basis. When the Commonwealth had the right to demand a jury in the past, it was used very cautiously in only a very small percentage of the cases. This practice would not change under 67 COMM. ON LAW & GOV'T - RES. NO. 980660 the current amendment. There's also been an argument that the defendants would sit in jail on bail because this would delay cases. There is a rule of criminal procedure called Rule 1100(e), which says that if a defendant is in jail on bail in a case for more than 180 days, he must be released. And it's happening now. We have defendants, when their cases are continued for more than 180 days and they can't make bail, they are allowed to sign their own bond, and they are --
I've heard the argument that this is not something for which we should bother to amend the constitution. Those opposed to it say that if the system isn't broken, don't 68 COMM. ON LAW & GOV'T - RES. NO. 980660 fix it. Perhaps from the perspective of the defendants and their lawyers or the perspective of people who are only concerned with the quantity of justice and not its quality, the system is not broken. But from the perspective of prosecutors who are charged with representing the community and from the perspective of victims of crime, it certainly is. This is exactly the type of situation where an amendment is called for. Basic fundamental rights are bestowed by the constitution. This is why the American Bar Association has called for the right to a jury trial for both sides. This is why the United States Supreme Court has come out in favor of both the prosecution and defense having the right to a jury trial. Twenty-four states as well as the federal system give the right to a jury trial to both the prosecution and the defense. Pennsylvania should do the same. The right to a jury trial is so important that it needs to be given to everybody. Thank you very much for the opportunity 69 COMM. ON LAW & GOV'T - RES. NO. 980660 to speak.
Thank you very much, Councilman. I'll keep my remarks very brief.
Just for the purpose of the record, please identify yourself.
Yes. My name is Gary Tennis. I'm the chief of legislation for the district attorney's office of Philadelphia.
Thank you, Councilman. The history of this, by the way, is that the Commonwealth has had the right to a jury trial, in fact, not only since colonial times but even into its English common law legacy. The right to a jury trial was established in the Magna Carta many centuries ago. And, in fact, all cases were heard by juries until the 1920s. It was in the 1920s that the legislature passed a law saying that if both sides agreed, it could be a non-jury trial. And that was the state of the law until 1973. 70 COMM. ON LAW & GOV'T - RES. NO. 980660 In 1973, the state Supreme Court, without any explanation, said, Strip the right to ask for a jury trial away from the Commonwealth. The legislature responded by passing a statute giving the right back to the Commonwealth in the state supreme court in a split decision, with Chief Justice Nicks -- or later, Chief Justice Nicks, dissenting, said that that's a rule-making matter, and the legislature can't pass a law about that. So it left the only avenue for correcting this and restoring the constitution to the way it's been for 200 years, it left us with the only option, which is to have a constitutional amendment. But this really is restoring the law to the way it was for the first 200 years of the Commonwealth and several years before that in terms of the common law legacy that we have. Chief Justice Earl Warren, who is probably the most staunch defender of criminals' rights was also the most outspoken advocate for giving the right to jury trial also to the representative of the people in criminal cases. The American Bar Association, as Mr. 71 COMM. ON LAW & GOV'T - RES. NO. 980660 Rosen said, which tends to very much favor a defendant's rights, has recognized that it's just fundamental fairness and fundamental common sense that both sides should be able to ask for a jury trial, that it's not -- this is not something that's some kind of outrageous proposal. This is something that even the most liberal advocate and the greatest leaders for criminal defendants' rights have said yeah, the prosecution should also have a right to a jury trial. Basically, what we're asking for here is to be able to say to a victim that no matter what, we'll be able to have a fair trial. We're not seeking any kind of advantage; we're seeking a fair trial. And we think it will be used rarely because we think most judges do a good job. That's all I have to say.
Thank you very much. The Chair recognizes Councilman Rizzo.
Thank you. My question is just -- like to go back to that word "fair" that you just used a moment ago. What recourse does a district attorney 72 COMM. ON LAW & GOV'T - RES. NO. 980660 have? You suggested that some judges are not fair. What recourse do you have if you perceive a judge not being fair? You indicated that you didn't think you could get a fair decision from a judge. Well, as a prosecutor, what can you do to complain? There must be a process in place to complain about a judge that you -- in your opinion, is not being fair.
No, I don't believe that there is any such process. I mean, a judge hears the case and decides the case on the facts. And if a judge issues a verdict of guilty or not guilty, as an experienced trial, you know, seeing verdict after verdict after verdict on certain kinds of cases in front of a particular judge that it's not the right decision, that it's not a fair verdict, but there's really nothing we can do. We have no right to appeal. We cannot complain to anybody about what verdict a judge issues in a case. There is -- without the right to demand a jury in front of that particular judge, there is really no way to correct. There's no outlet for 73 COMM. ON LAW & GOV'T - RES. NO. 980660 complaint by the DA. Can I just add one other thing? And I want to stress what Mr. Tennis said and I think what I said in my opening remarks because there was a lot of remarks by some of the previous witnesses about this being judge-bashing. We are not judge-bashing. We're not saying that all judges can't be fair. Most judges are fair. That's not the point. What we're saying is that this right is so fundamental, the right to a jury trial, that everybody should be allowed to come into a courtroom and be able to ask for it, at least have the opportunity to have the representative ask for it. It may not happen all the time, but they should have that outlet, especially in a case where a judge may not be particularly fair in a particular case.
And, Councilman Rizzo, if there were any kind of attempt to look beyond the judge's verdicts and some kind of -- any inquiry into it, I think the decibel level of alarm, or the complaints that you're hearing now against this amendment, which I think is a very 74 COMM. ON LAW & GOV'T - RES. NO. 980660 reasonable, sensible one, the decibel level would go up many, many times 'cause people would say there would be -- it would be viewed as an assault on the independence of the judiciary. And I don't think we'd want to do that.
Could you just briefly comment on process. If this amendment were to pass, you both suggested that this would be enacted on a limited basis, that you don't think that you'd see a lot of requests for a jury trial. But could you just briefly describe in the event, if this would pass, how would your office -- what would be the process? Just the district attorney would make that decision? Like to know how that process would work.
Sure. The individual cases are looked at by the individual DAs who are in the courtrooms and who look at the case and can see from their experience whether something potentially could be a jury demand or not a jury demand. But then every case would have to be cleared by their supervisor. And these would 75 COMM. ON LAW & GOV'T - RES. NO. 980660 really be coming out of essentially three units in the district attorney's office: the Homicide Division; the Family Violence and Sexual Assault Division, which handles rape cases; and the Major Trials Division, which is my unit, which handles gunpoint robbery, shootings, kidnappings, arson cases. In only the most serious cases is it going to be considered in. And then every case that will be a jury demand by the prosecutor will have to be approved through the chief of the unit so that there's a centralized control, not only on the type of cases but on the number of cases.
Yeah. We would do it just like defense counsel does it on behalf of the defendants. In other words, a case would get sent to a courtroom for a trial, to a particular trial judge, and we would do exactly what the defendants and their counsel do -- decide at that point whether it's going to be a jury or a non-jury trial. 76 COMM. ON LAW & GOV'T - RES. NO. 980660
So part of that process could be that you see a judge that you feel you're not going to get a fair shake; that that decision -- that part of the decision would be, because of that, to ask for a jury trial.
It would have to do with who the judge is, what the seriousness of the case is, and what the victim feels about it, how the victim feels about it, certainly.
We certainly wouldn't ask in every case where we didn't think we were going to get a fair shake 'cause that -- we would have to limit it to the most serious cases.
Councilman Ortiz, he 77 COMM. ON LAW & GOV'T - RES. NO. 980660 previously had yielded to Councilman Nutter, but he's withdrawn his yield. Councilman Ortiz.
You know, you paint such a needy situation for the Commonwealth. You must be losing probably the huge majority of your cases. You must be not even batting 50 percent. Because, you know, the way you paint this picture here, it's a judicial system, a criminal justice system run amok, with the rights of defendants being put over the rights of everybody else in the Commonwealth. Are you losing all of your cases? Is that it?
Well, it is, because you give the impression that the defendants here -- in one of your points, you say that the defendants run the trial.
And I'd like to find out where that happens because I'm a defense attorney, and I'd like to know where and in what 78 COMM. ON LAW & GOV'T - RES. NO. 980660 courtroom I can go in and determine how the trial is going to be pursued, because I would love to practice in that place. That's Shangrila for a defense attorney.
Councilman, that's not what I said. What I stated to you and the other ladies and gentleman is that it is solely the defendant who gets to decide, under the current system, whether it is a jury trial or a non-jury trial. When you asked me the question, Are we losing all our cases? You know the answer as well as I do; the answer is no. That's not the point, and that's not what I've been saying here for the last 10 or 15 minutes, Councilman. What I stated was that this right is so basic and so fundamental -- and I've yet to hear anybody ask the question, Why should this right be denied to victims? -- it should be given to everybody. Councilman, let me finish because you asked me a question, and I appreciate you letting 79 COMM. ON LAW & GOV'T - RES. NO. 980660 me finish. It's not just me who's saying this. This is the United States Supreme Court who's said that, it's the American Bar Association who's said that, it's states who've said it, it's the 7 federal government who's said it. Does it matter 8 if it's in case or in 20 cases or in 50 cases? 9 Does the numbers matter? 10 Why would you want to deny the right to 11 a jury trial, which is what our legal system is 12 all about to everybody? And that's, frankly, the 13 question that I haven't heard the answer to, nor 14 do I understand why you would want to do that. 15
Because there's no 16 level playing field. It is the Commonwealth with 17 all of its vast resources available to it against 18 the defendant. 19 There is no, no, no way, there is no 20 level playing -- unless you are going to give the 21 defendant all of the necessary resources that the 22 state also has. For example, a poor person that 23 has to go before a public defender that has 24 probably 159 cases or 160 cases and is not able to 25 acquire witnesses and is not able to get expert 80 1 COMM. ON LAW & GOV'T - RES. NO. 980660 testimony. Unless you are going to afford each and every one and level the playing field all the way down the line and not break middle-class families who are going to be forced to decide whether they're going to go to jail or plea- bargain on something that they have no interest in plea bargaining in and that they may be innocent.
No, you're in my courtroom. 81 COMM. ON LAW & GOV'T - RES. NO. 980660
Yes, Councilman, I'll wait to answer until the Councilman Ortiz is finished.
But you also said that you're not judge-bashing here. And in your testimony, you just said some judges are just not fair.
Then over here you go and you say. . . more than once, you're in front of a judge whom you believe will not render a fair verdict. Do you have a list of judges in the common pleas court of Pennsylvania that the district attorney and their offices list as judges that are not fair? I really think the public would like to know. 82 COMM. ON LAW & GOV'T - RES. NO. 980660
I'm not here to state names of judges, and I'm not going to, Councilman. But if you want to call me later and ask me what judges I think and give particular examples of cases, in the minority of judges, in the minority of cases cannot be fair to the Commonwealth, I'll talk to you about it. And I'll tell you what, just like defense attorneys will come in here and tell you that there are judges who cannot be fair to their clients or to their cases. It goes both ways. Every lawyer who practices in the criminal system knows it.
Councilman, if you've practiced in the criminal system, you know it to.
Mr. Rosen and Mr. Tennis, could you be available for questions? We want to have a brief announcement about the students who are here. And then I notice. President Judge Bonavitacola is in the courtroom. We know how busy he is. We'd like to have him testify, but we would like you to come 83 COMM. ON LAW & GOV'T - RES. NO. 980660 back for questioning? Will you remain in the hearing room?
I would be happy to. Can I just give an answer to the other statement that was made right now, Councilman, before I forget?