Try fugitives, use indicting grand juries, expert urges

Posted: April 24, 2012

Philadelphia should cap off its overhaul of its court system by creating indicting grand juries and trying fugitive defendants in absentia, a veteran former prosecutor said Monday.

In a double-barreled presentation to a state Senate advisory panel, Walter M. Phillips Jr. said the moves would crack down on witness intimidation and send a strong signal encouraging defendants to show up for court.

Phillips detailed his proposals at the latest session of a volunteer panel of judges, prosecutors and defense lawyers, academics, and other experts established to recommend changes to the Philadelphia courts in response to an Inquirer investigative series, “Justice: Delayed, Dismissed, Denied.”

The 2009 series painted the city’s criminal courts as broken — rife with victim and witness fear, disrespected by thousands of defendants who routinely skipped court, and marked by some of the nation’s lowest conviction rates.

At the time of The Inquirer’s series, 47,000 defendants were at large — and the court system was owed $1 billion in forfeited bail.

To combat the most serious cases of witness intimidation, Phillips said, Pennsylvania should again permit prosecutors in the state’s 67 counties to use grand juries to indict defendants. In selected cases, these proceedings would replace the current open preliminary hearings.

In such cases, witnesses would testify before 23 grand jurors in secret and would not have to face either the defendant or a defense lawyer. The jury would then issue an indictment and the witnesses’ identities would not become public until a trial. Only then would they have to testify in public, unless defendants had pleaded guilty earlier.

The change is opposed by the Pennsylvania Association of Criminal Defense Lawyers. In a letter to the state Supreme Court’s advisory rules committee, the defense group said the high court lacked the legal authority to bring back indicting grand juries and warned that the juries would trample on defendants’ rights to test eyewitness testimony.

In November, however, the rules committee voted by a large majority to recommend approval of indicting grand juries, but prosecutors would have to first affirm that witness intimidation had emerged as a threat in a case.

Both the grand jury initiative and the proposal to require fugitives to be tried in absentia are now pending before the Supreme Court.

Phillips said his recommendation reflected “the Inquirer series’ pointing out the incredible number of dismissals due to witness intimidation.”

The series reported that defendants charged with violent crimes in Philadelphia walked free on all charges in almost two-thirds of all cases, typically because witnesses or victims had refused to testify or failed to show up for court.

Since the newspaper reported its findings, the Supreme Court, District Attorney Seth Williams, and top local judges have made numerous changes. Among the measures, they have given prosecutors more time to bring cases, limited defense delays, overhauled the charging process, centralized hearings at the main courthouse, and — just this month — set up a special Bench Warrant Court to go after fugitives.

Left unresolved, though, have been the proposals spearheaded for months by Phillips, a former chairman of the state Commission on Crime and Delinquency. Now a defense lawyer, Phillips won fame in the 1970s as a special prosecutor who looked into corruption in Harrisburg and Philadelphia.

Pennsylvania Chief Justice Ronald D. Castille and fellow high court Justice Seamus McCaffery both declined Monday to discuss the court’s internal debate or give their opinions of the rules changes.

Previously, McCaffery, a former police detective and then a top judge in Philadelphia, has strongly endorsed both changes. Castille, a former city district attorney, has said he saw some merit in indicting grand juries.

Such grand juries were abolished in Pennsylvania in 1976 in a step billed as a way to streamline court efficiency. Under convoluted rules in effect until then, defendants would first be held for trial at preliminary hearings and then indicted by a jury.

Phillips told the Senate advisory panel Monday that indicting grand juries had been endorsed by groups representing victims, police, and the state’s county prosecutors.

As for his proposal for trials in absentia, he said court precedent made it plain that such trials were legal, provided that a defendant had no good excuse for an absence.

Judges should give those arrested an explicit warning that their trial would go ahead without them if they choose to run, Phillips said.

“The warning alone is going to change the fugitive rate,” he predicted.

Contact staff writer Craig R. McCoy at 215-854-4821 or cmccoy@phillynews.com.

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