Lawyers: D.A. made deal on professor

Posted: September 15, 2007

When former University of Pennsylvania professor Tracy McIntosh was sentenced to house arrest for the sexual assault of a graduate student, Philadelphia District Attorney Lynne M. Abraham led the chorus of outrage.

Yesterday, three lawyers for McIntosh accused one of Abraham's own prosecutors of making an informal deal guaranteeing the original no-prison sentence if McIntosh admitted the assault.

One of those defense lawyers, Thomas A. Bergstrom, described the district attorney's appeal of the sentence as "a stab in the back."

He questioned how prosecutors could "condemn and appeal the sentence that they agreed to beforehand - that they, in fact, proposed."

The District Attorney's Office vehemently denied that there had been a plea agreement and pointed to McIntosh's sworn testimony to that effect when he pleaded no contest.

The allegations were made yesterday by McIntosh's current defense attorney, Joel P. Trigiani, at a scheduling hearing before Common Pleas Court Judge Pamela Pryor Dembe.

Dembe, who will handle McIntosh's court-mandated resentencing, told Trigiani that he might be right: "I think what happened was that the lawyers came to some kind of informal understanding with the judge . . . that was all done off the record."

Despite that concession, the judge denied Trigiani's request for a hearing at which he wished to call as witnesses the original sentencing judge, Rayford A. Means, and McIntosh's original defense attorneys to confirm the purported plea bargain.

The judge gave McIntosh until Sept. 28 to decide whether to go forward with the resentencing - prosecutors want a prison term of at least 51/2 years - or withdraw his plea and go to trial.

During yesterday's hearing, Assistant District Attorney Richard DeSipio called McIntosh a "player" who was trying to revise the case's history: "There was no plea-bargain agreement of any kind."

"Gina Smith did not make a deal," said Assistant District Attorney Deborah Harley Tierney, chief of the Family Violence and Sexual Assault Unit, referring to the original prosecutor in the case.

Gina Maisto Smith, who last year left the prosecutor's office for private practice, did not return calls for comment.

Tierney distributed copies of McIntosh's signed plea colloquy in which the plea is described as "open" with no conditions.

"If there had been such an agreement, he would have been sentenced on the spot instead of going through a presentence investigation," Tierney said.

Tierney questioned why McIntosh's attorneys did not raise the issue immediately after the former Penn professor was sentenced.

Trigiani said in court yesterday that the purported informal plea bargain was proposed by Smith on Dec. 1, 2004, as jury selection was under way on McIntosh's trial on rape and related charges.

According to Trigiani, the purported deal - a sentence without prison time - was agreed to in Means' chambers before defense attorneys Bergstrom and Arthur T. Donato Jr.

Later that day, McIntosh announced that he would plead no contest to charges stemming from the Sept. 6, 2002, incident in his office on the Penn campus.

McIntosh that day showed the niece of a friend around the Penn campus before she started classes. The tour ended in an evening of heavy drinking. McIntosh took the woman back to his office, gave her marijuana, and then had sex with her while she was barely conscious.

In March 2005, Means sentenced McIntosh to 111/2 to 23 months of house arrest, eight years' probation, and $40,000 in fines and restitution to the victim.

Both Bergstrom and Donato yesterday confirmed Trigiani's contention that a deal had been struck.

"We were picking a jury, this case was going to trial, we weren't going to have our client spend one day in jail," Bergstrom said.

Bergstrom said that prosecutor Smith approached them and offered a guarantee of no prison time if McIntosh pleaded no contest.

"My position is that I don't trust her as far as I can throw this room," Bergstrom said of Smith now.

Bergstrom said Means agreed to the deal even after Smith said she would have to ask for prison time during the hearing for public appearances' sake.

"I still remember what he [Means] said," Bergstrom continued. "He said, 'So I got to take the heat?' "

In remarks made on Sept. 7 after he disqualified himself from further involvement in the case, Means seemed to allude to a plea deal when he said he would "go to my grave" sure of his decisions: "In my heart of hearts, I know what both sides bargained for."

Means did not return phone calls to his chamber yesterday.

During yesterday's court hearing, Trigiani said such informal side agreements are common in the city criminal court system: "There was a deal here, and these deals are made all the time. Does anyone really believe there wasn't a deal here?"

Tierney and DeSipio yesterday denied that the District Attorney's Office "does business this way."

Defense lawyers who practice in Common Pleas Court describe these informal out-of-court sessions as the way prosecutors and defense attorneys negotiate the terms of a guilty plea outside the pressure of the public spotlight.

Most times, lawyers say, the deal is honored, the agreed-on sentence is imposed by the judge, and the case is finished.

But when the deals blow up, the defendant is left in an especially vulnerable position. None of the informal agreement is on the court record, and the defendant has little evidence with which to cry foul.

"It's a very dangerous thing," said the veteran Center City defense lawyer L. George Parry.

Parry said it was well-known among lawyers that such backroom deals are carried out. "Usually, it doesn't blow up in anybody's face," Parry said.

"I've never seen it blow up, but . . . I think every defense attorney who handles certain kinds of cases has seen the wink-wink, nod-nod approach to sentencing," said Bernard L. Siegel, a longtime Philadelphia defense lawyer. "There's no question that it goes on. Many lawyers have taken advantage of it on behalf of their clients."

In the McIntosh case, whether there was a deal or not, things blew up very fast. Means' sentence was quickly denounced by women's and victims-rights advocates.

Abraham herself denounced the sentence, saying Means seemed to think McIntosh was "too important for prison" and promised an appeal.

Bergstrom said he was stunned, "absolutely blown away," though he said he was not angry at Abraham.

"I have no reason to think that Lynne Abraham knew anything about this," Bergstrom said, referring to the purported agreement. "I think Gina Smith did this on her own . . . behind Lynne Abraham's back."

Bergstrom said that "I would have had to be insane to agree to this [no-contest] plea if I knew they'd have the right to appeal."

Abraham declined to comment earlier yesterday and had left the office when a second call was made to ask about Bergstrom's comments.

Tierney, who was not chief of the sex crimes unit in 2004, said she did not know if Smith first cleared the no-contest plea with Abraham or other supervisors.


Contact staff writer Joseph A. Slobodzian at 215-854-2985 or jslobodzian@phillynews.com.

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