The Legal Intelligencer Blog

Judicial 'Merit Selection' Gets Renewed Push by Four Ex-Governors

By Amaris Elliott-Engel
Of the Legal Staff

A bill that would give Pennsylvania voters the opportunity to decide whether to amend the state constitutional process for electing appellate court judges has a better chance of advancing than it has in the past, former Governor Ed Rendell said Monday. There is a better chance, he said in a conference call with reporters, because Rendell and three other former governors have come out in favor of the legislation and because Supreme Court Justice Joan Orie Melvin’s political corruption conviction has again pointed out the dangers of having judicial candidates campaign for office.

Rendell, a former Democratic governor; Tom Ridge, a former Republican governor; Dick Thornburgh, a former Republican governor; and George Leader, a former Democratic governor, wrote a letter to every member of the General Assembly in favor of a proposed bill that would set up a bipartisan commission that would select five candidates for every appellate-court vacancy to create a shortlist from which the governor would have to make an appointment. All those appointees would be subject to retention elections by voters, and trial-court judges would still be elected directly. The bill would have to be passed by the General Assembly two times before going to a referendum before voters.

Some of the problems with electing judges are that there are great amounts of money raised in appellate-court races, raising the possibility of “potential deference owed to donors,” Thornburgh said.

The genius of the framers of American government was that the judiciary was to be a body independent of people’s opinions, Ridge said. “It’s about … experience and temperament and the rule of law and upholding the constitution and not public opinion,” Ridge said.

Thornburgh cited a quote by Woodrow Wilson that he “would rather lose in a cause that will some day win, than win in a cause that will some day lose,” to explain why he continues to push for a change in how judges are selected.

The bill was introduced in the Senate by state Senator Anthony Williams, D-Philadelphia, and state Senator Richard Alloway, R-Adams, and Representative Bryan Cutler, R-Lancaster, is circulating the bill for co-sponsors, said Lynn Marks of Pennsylvanians for Modern Courts.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

U.S. Attorney Supports Re-entry Over Retribution

By Amaris Elliott-Engel
Of the Legal Staff

Law enforcement can't arrest its way out of crime, U.S. Attorney Zane D. Memeger of the Eastern District of Pennsylvania said, even though he has spent his 22-year career investigating crimes, prosecuting cases and sending convicted criminals to prison.

Memeger, who was speaking last week on a panel held after the screening of a documentary that follows three men who have re-entered society after serving time in prison, said there has been a "shift in the Department of Justice to focus on prevention efforts and re-entry efforts," including because most ex-convicts are coming back.

"Andy A.," one of the men profiled in the film, Pull of Gravity, said “the pull of this lifestyle is really addictive. It’s as powerful as gambling and using. You don’t have to be an addict … who uses drugs. … the lifestyle is addictive, the hustling.”

Rebecca Vallas, an attorney with Community Legal Services who works on civil legal issues related to ex-offenders, said the pull is one side of the coin, but the other side of the coin is the barriers in place for ex-cons being able to do what they want to do with their lives.

One in three people in the United States has some kind of criminal conviction, but having such a conviction blocks them from employment, credit, public housing and private housing, Vallas said.

U.S. Magistrate Judge Timothy Rice of the Eastern District of Pennsylvania, who oversees one of the re-entry courts for federal prisoners that gives them the chance to leave prison early in exchange for getting jobs and getting other social services, said the program isn't to reduce recidivism but "to help people. We help rebuild their lives."

Andy A., who is participating in a lot of support groups for ex-cons, said not everyone who has done time in prison wants help, including those who have been court-ordered to attend such programming. The people who need help need to be identified, he said.

Jonathan Kaufman, co-director of the documentary, said many people who are coming out of prison have a lot of "invisible wounds" from trauma of being incarcerated, including post-traumatic stress disorder. They also might have had PTSD before they went into the system because of growing up in violent neighborhoods, Kaufman said.

The other co-director was El Sawyer, who also served time in prison.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Mayor Marks Half-Century Anniversary of Gideon With Defender Association

By Amaris Elliott-Engel
Of the Legal Staff

Funding for the legal representation of the poor is not funded at an "adequate level anywhere" in the United States, Ellen Greenlee, chief defender with the Defender Association of Philadelphia, said in an interview today.

Greenlee was speaking at an event in which Mayor Michael A. Nutter issued a proclamation honoring the association and the half-century since the U.S. Supreme Court ruled in Gideon v. Wainwright that state courts are required to provide counsel in criminal cases to defendants too poor to afford their own attorneys.

"The joy of the anniversary celebration is actually weakened by what is happening nationally," Greenlee said.

But Greenlee said she is heartened that addiction is no longer being treated largely as a criminal problem, but as a health problem.

But many more services need to be provided in the community so people with mental illness are not just housed in jails, Greenlee said.

Everett Gillison, deputy mayor of public safety and Nutter's chief of staff, said he wants to honor the legacy of Gideon in the city's requests for proposal for a new legal organization to handle the legal work representing indigent defendants and family-court litigations that the Defender Association is conflicted out of representing.

Gillison said there's a challenge in meeting the goals of Gideon because of the city's budgetary limitations, but "we'll struggle toward achieving justice."

The RFP has generated some controversy because some question whether the city has budgeted enough money to pay for a conflict counsel office when the private attorneys who now handle the conflict counsel appointments have not seen a raise in their rates in more than 20 years.

Philadelphia Bar Association Chancellor Kathleen Wilkinson, who spoke with The Legal at the same time as Giliison did, said the association is on the same page as the city in that the representation must be adequate. Wilkinson also said she is pleased that the city will have the bar association at the table to review some of the proposals.

When Nutter was introduced at the event by civil-rights attorney David Rudovsky, chair of the association's board, Rudovsky said the association needs more resources to meet the goals of Gideon and Nutter commented wryly: "Subtle."

Montco Republicans Endorse Prosecutor and Ex-DA for Judge

By Amaris Elliott-Engel
Of the Legal Staff

The Montgomery County Republican Committee endorsed two women attorneys with a prosecutorial background earlier this month to be the party’s standard-bearers for the two open Montgomery County Court of Common Pleas judgeships.

As The Legal previously reported, this year's Montgomery County Court of Common Pleas race for two judgeships could test whether the Democrats are going to be able to perpetuate their interruption of the decades-long supremacy of Republicans in electing judges.

Just a dozen votes separated Joanna M. Cruz, who was not endorsed, from the two attorneys who were endorsed, Maureen Claire Coggins and Sharon L. Giamporcaro, said Robert J. Kerns, chairman of the Montgomery County Republican Committee.

There were 658 party members represented through proxy or in person, said Kerns, a lawyer with Kerns, Pearlstine, Onorato & Hladik.

Kerns said both of the endorsed candidates have very distinguished resumes and will do well in the race.

Coggins, a criminal defense attorney with offices in Allentown and Norristown, Pa., has worked as a prosecutor, a public defender and a county solicitor. Coggins has worked for the Montgomery County District Attorney's Office and Solicitor's Office and served as the chief public defender in Lehigh County.

Giamporcaro is an assistant district attorney in the Montgomery County District Attorney's Office, Kerns said. Giamporcaro said she has been endorsed by Montgomery County District Attorney Risa Vetri Ferman. Giamporcaro is the chief of the juvenile division in the Montgomery County District Attorney's Office. She has been practicing law for 25 years, including as a deputy district attorney since 2000.

According to a 2009 report in The Legal, Cruz was working part-time at Kerns Pearlstine and part-time at the Montgomery Public Defender's Office.

The Montgomery County Democratic Committee's endorsement convention is set for February 28.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Bar Association Won't Rate Traffic Court Judges

By Amaris Elliott-Engel
Of the Legal Staff

While municipal government watchdog group Committee of Seventy suggested that the Philadelphia Bar Association "take responsibility for interviewing and rating all 2013 Traffic Court candidates" in the wake of nine judges being charged with crimes related to alleged ticket-fixing, the association's chancellor said the professional group does not have the jurisdiction to rate Traffic Court judges because they are not required to be lawyers.

Chancellor Kathleen Wilkinson said that under the current rules, the bar association's Commission on Judicial Selection and Retention has jurisdiction over lawyers to have them come before the commission to be interviewed and have investigative teams look into the candidates.

But if a change is made to make Traffic Court judges lawyers, then the association would rate Traffic Court candidates and they also would be subject to the rules of professional responsibility for lawyers, Wilkinson said.

"Our association recommends or doesn't recommend lawyers who are candidates for judge," Wilkinson said. "We have no jurisdiction over nonlawyers; we are a bar association. One of my suggestions would be: Why don't we ask that there be a requirement that they be lawyers?"

Wilkinson also said she is pleased the judges were suspended while the allegations were pending. "We need to preserve the impartiality of the court," Wilkinson said.

The Committee of Seventy also suggested that both the Democratic and Republican city committees should agree only to support those candidates who receive positive ratings by the bar association.

Nine former and current Traffic Court judges were charged by federal prosecutors with conspiring to fix traffic tickets. The state Senate Judiciary Committee passed legislation Tuesday that would eliminate Traffic Court.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI. 

Public Interest Lawyers Question FJD's Debt Collection

By Amaris Elliott-Engel
Of the Legal Staff

For the past three years, the First Judicial District has stepped up its effort to collect on forfeited bails and other outstanding debts with the "view," as Philadelphia Court of Common Pleas Judge John W. Herron put it in 2012, "that it's necessary to do so in order to underscore the ramifications of failing to appear for court hearings."

During a Philadelphia Bar Association panel Wednesday, Sharon Dietrich, Community Legal Services' managing attorney for employment and public benefits, said most of the debt collection efforts involve bail debt from 1988 to 1993. Dietrich said she doubts people are going to show up in court because of collection efforts related to decades-old debts. Instead, people just feel persecuted, Dietrich said.

In 2010, the FJD began to step up its efforts to collect on judgments entered on bail forfeitures for defendants who allegedly did not show up in court in the wake of heavy criticism that not enough was being done to address defendants' failures to appear in court.

Public interest attorneys don't take the position that people should not pay what they owe or that people should not have to show up for court dates, Dietrich said. But "the way it has played out in our law practice, there are issues of fairness and practicality and crushing people who already have too little to make it through one day to the next day," she said.

There is no statute of limitations on any criminal debts in Pennsylvania, and there also is very poor record-keeping by the formerly independent Clerk of Quarter Sessions, now called the Clerk of Courts and housed within the FJD, Dietrich said.

The Philadelphia Prison System also does not have records that go back before 1991, Dietrich said. Former Pennsylvania Victim Advocate Mary Achilles said restitution must be paid by criminal defendants. Restitution is very important to victims, she said. Research shows "victims will trade off prison time for restitution," Achilles said.

Achilles said she was concerned that this debt collection process might mean that the city of Philadelphia is recovering on its debts before victims get paid restitution. It was a concern echoed by a couple prosecutors attending from the Philadelphia District Attorney's Office.

The panel on the topic of Philadelphia court collections was put on by the association's public interest section.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI. 

Ex-Teacher's Lawyer Makes Closing Argument in Church Sex-Abuse Trial

By Amaris Elliott-Engel
Of the Legal Staff

A priest who denied committing a sex crime when testifying after being called by prosecutors had a lot to lose by giving that testimony, adding credence to the defense theory that the alleged victim made up that he was sexually attacked by two priests and a Catholic school teacher in a year's span, a defense attorney argued in court today.

Edward Avery already pled guilty to sexually assaulting D.G. in early 2011. When he was called to testify in the trial of the Rev. Charles Engelhardt and former schoolteacher Bernard Shero, Avery said that he was only able to plead guilty because he was asked by Philadelphia Court of Common Pleas Judge M. Teresa Sarmina, after a recitation of facts by a prosecutor, if those were the facts to which Avery was pleading guilty, said defense attorney Burton Rose, who is representing Shero. Avery said he would not have been able to plead guilty if he had been asked directly, Rose said.

"Edward Avery has a lot to lose and nothing to gain [by coming into court and saying] that, 'I took the guilty plea to avoid dying in jail,'" Rose said. Prosecutors will be able to write to the state Parole Board indicating that Avery is not cooperating with the criminal justice system, and that would weigh heavily on Avery being able to get out of prison when he is first eligible for parole on his 2.5-five year sentence, Rose said.

The Legal does not name alleged or confirmed victims.

The defense attorney for Engelhardt and the prosecution are slated to give their closing arguments Friday morning.

Shero and Engelhardt had their cases severed from the trial of Monsignor William J. Lynn, the first Catholic Church official in the country to be charged with harming sexual-abuse victims whose abuse he was responsible for investigating.

The Legal will have further coverage on the case.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

City Extends Deadline on RFP for New Conflict Counsel Model

By Amaris Elliott-Engel
Of the Legal Staff

The city of Philadelphia has extended the deadline for “creative and innovative” proposals for representation in cases in which the Defender Association of Philadelphia has a conflict.

The deadline has been extended to February 22 from January 18.

Philadelphia Bar Association Chancellor Kathleen D. Wilkinson, along with Criminal Justice Section Chair James A. Funt and Family Law Section Chair Michael E. Bertin, met with Deputy Mayor of Public Safety Everett A. Gillison, City Solicitor Shelley R. Smith, Michael R. Resnick, director of public safety and Elizabeth Mattioni, chair of the Law Department's litigation unit, last week.

According to minutes of the meeting provided by the Philadelphia Bar Association, the bar association officials discussed with the city officials the American Bar Association's 10 principles of a public defense delivery system.

According to an email from Mark Tarasiewicz, a bar spokesman, the principles were suggested by bar leaders as a “guidepost in identifying entities to take on this work. While no principle is more important than others, case management ability and CLE compliance are standouts.”

Wilkinson also wanted the family law and criminal justice sections to collect ideas concerning the RFP and to have those ideas forwarded to her, according to the minutes.

Resnick said in an interview last month that the impetus for the RFP was that the city wants to have a more efficient model than the current one in which individuals are made every budget year.

Resnick also suggested another model in which the city could hire someone else to manage the payment process.

Many attorneys who take court appointments in criminal and family cases are questioning how more efficiencies could be obtained out of a system if a separate conflict counsel office were set up with overhead costs or when there has not been an increase in the fees paid to them for many years.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Changes Recommended to Philadelphia Criminal Justice System

By Amaris Elliott-Engel
Of the Legal Staff

An advisory committee to the Joint State Government Commission released its final report with several recommendations for reform in the Philadelphia criminal justice system this afternoon, including that the state government should appropriate additional resources to Philadelphia to curb the intimidation of victims of crime and the intimidation of witnesses to crime.

Some of the proposals have already been adopted or are being implemented. The Pennsylvania Supreme Court has already instituted the indicting grand jury for cases involving witness intimidation. The committee said that the First Judicial District needs updated bail guidelines, which is a project currently being undertaken by the FJD. The committee favored a criminal e-filing system, which is under development currently.

Two members of the advisory committee dissented.

Attorney Brian J. Frank dissented to the pretrial release and bail section of the report. Frank said that “the report fails to truly acknowledge and emphasize the disgraceful failure-to-appear rate — an initial FTA rate of at least 28 percent and an ultimate FTA rate (namely, a criminal defendant remaining a fugitive after one year) of 10 percent — that has long existed in Philadelphia under its current pretrial release system.”

Attorney Nicholas J. Wachinski also dissented to the pretrial release and bail section of the report. He said “no consensus was reached regarding the need to develop nonmonetary conditions of release … there is no system … that has eliminated monetary conditions of release as a viable and functional means for release of defendants pending trial. Although Pittsburgh advertises itself to be a ‘nonmonetary system,’ a great many number of surety bail bonds and fully financially secured (cash) bail bonds are levied against defendants there.”

The committee’s recommendations included that Philadelphia “develop, test and refine nonmonetary conditions of release,” such as halfway houses, treatment, supervision and specialty courts like veteran’s courts.

The advisory committee was instituted through a resolution adopted by the state Senate after a series by the Philadelphia Inquirer highlighted problems in the criminal justice system.

It's Official: Phila. Off Tort Reform's 'Judicial Hellholes' List

By Amaris Elliott-Engel
Of the Legal Staff

After two years, the American Tort Reform Association, a conservative group that aims to change tort law, took Philadelphia off its "judicial hellholes list" and placed it on its "watch list."

The Legal reported earlier this year that ATRA was planning to have Philadelphia come off its judicial hellholes" list as the Court of Common Pleas sees a dramatic drop in mass tort filings and the administrative judge of the trial division has repeatedly said out-of-state plaintiffs should file their suits elsewhere.

One of the group's main complaints was that the Complex Litigation Center's mass torts program "had become a magnet jurisdiction for lawsuits from across the country." The report was favorable to several changes, implemented in part by Judge John W. Herron, administrative judge of the trial division, such as eliminating reverse bifurcation and limiting consolidation of mass tort cases to asbestos cases.

The group said "while it comes with many caveats and a pledge to keep the white-hot Judicial Hellholes spotlight firmly fixed on the jurisdiction for as long as necessary to prevent back-sliding, it is in the spirit of giving credit where credit is due that this year's report appropriately eases Philadelphia out of the Hellholes rankings and onto the Watch List."

But the group argued that changes to Pennsylvania's venue rules should be applied to personal injury cases as they were applied a decade ago in medical malpractice cases.