Norristown, Pennsylvania just wants to do something about the crime. Compared to its neighbors, Norristown has a higher crime rate and is poorer. So it has gotten creative about its crime problems.
No, really. If a person calls for police assistance three times within four months, the town will force your landlord to evict you.
Read that again. Take your time. It’s that effed up.
Norristown’s “disorderly behavior” ordinance specifically includes “domestic disturbances” within its definition of “disorderly behavior,” meaning that someone went out of their way to make sure that domestic violence victims get the shaft here.
Which is how I learned about this little pile of nonsense.
Norristown resident Lakisha Briggs was assaulted by her paramour. A neighbor called the police, who arrested the boyfriend, and who then told Ms. Briggs that she was on Strike Three — they were going to force her landlord to evict her.
No crime victims? No crime! Boyfriend assault you? Don’t call the cops if you need, you know, a place to live!
The ACLU filed a Federal suit against Norristown on Ms. Briggs’ behalf, alleging that the ordinance violates the First Amendment right to petition the government.
And the Violence Against Women Act.
And the Fair Housing Act.
The ordinance punishes women whose only crime is needing help and is based on offensive stereotypes that blame the victim in domestic violence situations.
It also discriminates against the poor — the law applies to renters. If you own your own home, they can’t evict you, can they?
For its sake, the town responded by saying:
The new provisions of the Municipality’s Rental License Ordinance reflect the Municipality’s attempt to require landlords to assist in attempting to reduce incidences of disorderly behavior caused by tenants in the Municipality, which adversely affect the law-abiding citizens of Norristown.
The ordinance provision currently in effect contains all of the constitutional due process provisions required to protect the residents of Norristown, explicitly stating that no property shall be condemned for any reason under Norristown’s property maintenance code based on occurrences of disorderly behavior, and stating that no tenant shall be evicted or forced to vacate a rental dwelling for violation of the ordinance provision.
The ordinance provision allegedly being attacked by the lawsuit does not, in any way, discriminate against any persons, nor does it punish victims of domestic violence.
To which I say this:
Pennsylvania Legislature sorta gets something right, and something else vastly wrong, on teen sexting
Anyone who knows me is by now well aware that I am no fan of the General Assembly of Pennsylvania. After all, this is the august body that has prohibited the knowing, intentional, or reckless manufacture of a fake ID (how does one recklessly manufacture something?).
These are also the people who have decided that Simple Assault — beating someone up — is a Misdemeanor 2, punishable by up to two years in jail, while Terroristic Threats is a Misdemeanor 1, punishable by up to five years in jail. That’s right, threatening to beat someone up has a more severe penalty than actually beating someone up.
So as you can imagine, I do not expect too much from our elected representatives in Harrisburg. Bearing this in mind, I shuddered with fear when the General Assembly decided last year some time to address underage sexting.
The first sexting case in Pennsylvania involved a 17 year old girl in Wyoming County who had a nude picture of herself on her own cell phone, and she was charged with child pornography and dragged through juvenile court before the charge was dropped — and then sued the school district for the horrific invasion of her privacy.
THE NEW LAW
The new law, Act 198 of 2012, changes all that. No, sexting is not legal. However, it clarifies that:
- A minor in possession of an image of him- or herself could only be charged with a summary offense, punishable by a fine.
- If a minor sends an image of another minor to someone else, that minor faces a Misdemeanor 3 in juvenile court.
- If the image is transmitted “with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor,” it becomes a Misdemeanor 2, again in juvenile court.
- If the image is sexted to an adult, it remains child pornography (for the adult).
- If the images depict sexual intercourse (or any other explicit act), it remains child pornography (for everyone involved).
- If the image is created for commercial purposes, it remains child pornography (for whom, though is unclear).
- If the minor depicted is under 12, it remains child porn.
There have already been a handful of kids cited under the new law.
WHAT THEY GOT RIGHT
The Act is a vast improvement for Pennsylvania’s teens. The Act recognizes that kids do not always make the best decisions when it comes to their sexuality, and it removes the threat of an overzealous DA pursuing felony sex offenses and a lifetime Megan’s Law registration for what is essentially the 21st century equivalent of skinnydipping.
Furthermore, the tiered penalty structure recognizes that sexting an image of oneself is vastly different from sending an image of another person to other people. It recognizes that some kids can use sexting images of others to bully their peers, particularly girls.
Finally, it makes clear that an image of a 12 year old, or one depicting a sex act, is not sexting. Those images are treated as under the old law.
WHAT THEY GOT WRONG
While the law is an improvement, it is not perfect. First, I don’t particularly think there should be ANY penalty for either the original sender or first recipient. That is a matter of privacy in my opinion. The second problem is only apparent if you know about Pennsylvania procedure, but reveals a vast mistake and lack of forethought on the Assembly’s part.
A summary offense is the lowest grade of offense there is. Even for adults, it is generally only punishable by a fine — in fact, if the Magisterial District Judge is even considering probation, the court must inform the defendant in advance because that triggers a right to counsel. So sexting an image of oneself is a very low grade offense and stays at the MDJ court.
The other new offenses — sexting an image of someone else — are misdemeanors, which are more serious and go to juvenile court. Here’s where the problem arises — because the summary offense is too low grade to go to juvie court, it remains a public record, with the minor’s name searchable on the UJS Portal database. The more serious offenses go to juvenile court, which are not public, and the records are sealed.
Think about that a second — because the self-sexting is essentially a private act, it goes to a court where records are public; but where the image is forwarded and the privacy of the self-sexter is violated, that goes to a secret court with sealed records, and the privacy of those kids is protected.
Got it? Me neither.
THE FINAL ANALYSIS
On the whole, it is a step in the right direction, but only a step. While the law recognizes that sexting is not the same as child porn, it still punishes kids a little too harshly for what is, frankly, a purely private act. I specifically like that sexting for the purpose of causing distress is treated more seriously than other kinds of sexting, but I very specifically dislike public nature of the summary offense.
One other thing about this law, that is sure to get kids to stop. If they are convicted, the Commonwealth gets to keep their phones. Now that is a major punishment for a kid.
A few times a month, I get a call from someone who was busted for a relatively minor offense — DUI or drug possession, for example — and are being pressured by the police to “cooperate.” Cooperate, of course, is cop-speak for “snitch.” The police suggest, insinuate, or just flat say that if you help (usually by doing a few controlled purchases), they won’t file charges.
Don’t fall for it. They’re not allowed to do that.
The law in Pennsylvania has been clear on this point for almost 20 years — police are not allowed to cut their own deals, but there is no penalty to the police if they do so. Let me explain.
The lead case in this area is Commonwealth v. Stipetich. In 1990, police in Pittsburgh raided a home. The search turned up small amounts of drugs, so the police offered the homeowners a deal — give up the source of the drugs, and we won’t prosecute you. The homeowners agreed, worked out a deal with the police, and gave up the dealers.
And then the police filed charges anyway.
The homeowners filed a motion to dismiss, basically seeking to enforce the deal they worked out. The trial court granted the motion and dismissed the case. The Commonwealth appealed, and the case made its way to the Supreme Court of Pennsylvania. The Supreme Court held that the “deal” was unenforceable because only the DA can make a decision not to prosecute — and reinstated the complaint.
That’s right — the police made a deal they had no right to make. The DA prosecuted anyway because the police cannot bind the DA to any deal. And the Court says the prosecution is okay.
Meaning that accused defendants get the shaft.
So when a cop tries to “work something out” with you, when a cop tells you that he’ll “help you out” if you cooperate, when a cop says he’ll “go easy on you” if you snitch, just remember this: that cop is lying. He is doing something he is not allowed to do. He can get the info from you, and then file a complaint anyway.
And he will never get in trouble for it.
A man was arrested in Delaware County, it would seem, for asking to take pictures of underage girls. Not for forcing them to, nor even for taking their pictures surreptitiously from a block away with a super-telephoto-mega-zoom-upskirt-shot lens.
He was arrested for asking them to.
So I read the article and am even more confused (c’mon, Delco Daily Times — you can at least list the charges). I looked at the docket sheet, and the charges are in fact Simple Assault, Stalking, and Harassment. They’ve charged assault presumably because he touched the girl’s arm and tried to hug them. Okay, that’s a summary harassment, but it’s not really an assault. So what gives?
He was arrested because he was being creepy, which last time I checked was no crime. But he is a convicted sex offender. As I have come to learn, the system comes down extra tough on sex offenders. In this instance, he asked to take pictures. But that was enough, apparently, to lock him up.
It is with great pride that I announce that I have been selected as a Main Line Today Top Lawyer for 2012. Without seeking out the recognition, I am now considered one of the best criminal defense and DUI lawyers in the Western Suburbs of Philadelphia. The other names on that list are all top shelf, and I am proud to be counted among them.
This is the culmination of years of hard work and dedicated professional development. I am humbled and grateful for all the help I have received along the way from mentors, loved ones, dear friends, and (yes) clients that have helped mold me into the lawyer I am today. Some would say that I should probably increase my fees or get a bigger office (or flashier car) as a result of making this list. I won’t do any of that — I didn’t get to be where I am by putting my ego ahead of my clients, and I won’t stay there if I do those things now. I will continue to provide excellent representation to my clients, with a focus on affordability and professionalism.
So thank you all for helping me get where I am. I look forward to continued growth and improvement in the future.
Unless you spent the entire weekend at a spiritual retreat devoid of media you have by now learned that Jerry Sandusky was convicted of 45 counts of child sex offenses. He was immediately locked up following the verdict, and was led away in handcuffs to the Centre County jail, where he now sits awaiting sentence. The scene outside the courthouse was chaotic, with people cheering and grinning fools giving bizarre statements they should never have given.
What got buried in the mountain of Sandusky was the verdict in the Philadelphia Archdiocese sex case earlier that day. Monsignor William Lynn was convicted of Endangering Welfare of Children for covering up abuse, and shuffling abusive priests from parish to parish. Despite securing this one conviction the outcome fo this trial was largely a loss for the Philly DA’s Office. Lynn’s co-defendant, Father James Brennan, skated on the abuse charges themselves. Lynn was only convicted of one count as it related to a different priest who had pled guilty.
Forty-five convictions, and a likely life sentence in one case. Three months of trial, twelve days of deliberation, and only one conviction in the other. Both cases involved large (and beloved) institutions, one of which was religious, the other a church. So what made the difference?
Sandusky’s lawyer, Joe Amendola has proven himself to be out of his depth from the start. Days after the arrest, Amendola allowed Bob Costas to interview Sandusky, who asked Sandusky point blank “Are you sexually attracted to young boys?” The answer: “I enjoy young people.” Apparently not having learned his lesson, Amendola allowed a second interview, this time to the New York Times, who asked him essentially the same thing, and Sandusky gave essentially the same unsatisfactory answer (in this circumstance, anything less than a fervent and vitriolic “NO!” is damning).
Amendola (and co-counsel Karl Rominger) tried to get out of the case on the morning of jury selection, claiming to be unprepared. This fact is infuriating, because this case was specially scheduled from the start, with both sides given a date certain for trial. Was there a lot of discovery to go through? Yes. Most criminal cases generate discovery of no more than 50 pages, but this case had thousands. You know what, Amendola? You do the work. They didn’t. At the very least, it seems that Amendola is prepared to admit that he did a lousy job. His candor gets no praise from me, however.
On the other side of the case, the Pennsylvania Attorney General’s Office sent their best lawyers to do their best work. They were prepared, they were ready, and they relied on their witnesses to tell their stories. They kept it simple, focusing on what happened to these boys, and not the circus that surrounded Saint Joseph of Paterno and his followers.
In the Archdiocese case, the roles were reversed. The prosecution overreached, and the defense stood tough. The defense in the Archdiocese case are all top shelf, serious, and experienced criminal defense lawyers. I would like to pull up as many links or videos to them (or their clients) giving statements to the press, but I can’t. They kept their mouths shut. No one said anything. And no one gets in trouble for the things one doesn’t say.
On the other hand, the prosecution bit off more than they could chew. By focusing on the institutional coverup, the DA turned what could have been a compelling case of horrendous wrongdoing, and instead turned it into a pile of documents — memos about which priest goes where, what the Archbishop knew, and who said what to whom. It became, in effect, a massive conspiracy.
Conspiracies, particularly years-long, high-level institutional conspiracies, are a very hard sell for jurors. Jurors know from personal experience how hard it is to get five people to agree on lunch, let alone hundreds to agree on covering up an epidemic of sexual abuse. The bigger and higher the conspiracy, the more serious the allegations, the less likely a person is to believe it — and the more likely the person describing it will sound like a tin-hat wearing conspiracy theorist, a Spooky Mulder sitting in his basement office staring at his “I Want To Believe” poster.
The first and most basic decision a trial lawyer must make is very often also the most important — what is we are trying to convey to the jury? Is the case a an assault or a coverup? Is the defense that he is completely innocent or that things didn’t happen the way the Commonwealth claims? In the Sandusky case, the AGs decided to make the case about the boys, and not about Penn State football, while Amendola decided to make the case about himself. In the Archdiocese case, the DAs decided to make the case about the coverup, while the defense shifted the focus as much as possible to the individual priests and away from the institution.
In these cases, four sets of lawyers — two prosecutors, two defenders, three of whom were up to the task, one most definitely not — approached very similar circumstances in very different ways, and that made all the difference.
Most of the time, I am hired by clients after a charge has been filed or an arrest has been made. To be fair, this is the normal course of things — for example, the “investigation” phase of a case involving drug possession or DUI is very brief, usually no longer than it takes a police officer to do a traffic stop.
However, police investigate more serious or complicated offenses well before the charge is filed. Typically, a detective calls — “We have some questions about an incident, can you come to the station?” People receiving those calls fall into two camps — those who talk, and those who get lawyers immediately.
Or, as I like to think of them, those who get charged right away, and those who might not get charged at all.
It is a natural impulse to think that being cooperative is the right thing to do, and cops are trained to suggest that talking is the best thing to do. They may even pad it with a comment like, “The other guy’s story doesn’t make sense. Come tell us what really happened.”
The truth is that if the police are calling, they already have reason to suspect that you were involved. The police know more than they will let on, and are hoping you provide the last little bit of info needed to close the case.
In other words, they probably have enough already, and are hoping you do their work for them.
When that call from the detective comes, get a lawyer immediately. Case in point:
A few weeks ago, I received a call from a person’s family. A detective had called, asking for info about an incident at a bar. The detective made very clear threats —“come talk to me, or I’ll be filing charges against you immediately” — which the detective then followed with a “good cop” statement — “I just want to hear your side of the story.”
Not knowing what to do, the family reached out to me. I called the detective and informed her that there would be no statement. She tried to get tough with me, “well, that means I’ll be filing charges tonight.”
I replied in a way that was probably very unsettling to an officer.
“Okay, do what you gotta do.”
That was over two weeks ago, and no charges filed (I know, because I checked 15 minutes ago). All it took to derail the express train to the courtroom was one phone call, and a follow-up fax setting in writing that my client would not be talking.
I am absolutely certain that my client would already be charged if he hadn’t called me. I am also absolutely certain that calling their bluff caused the cops to admit there wasn’t much of a case.
So if you want to know what is to be gained by getting a lawyer before a case is filed, look at what a single phone call could do.
Somewhere in the realm of “more times than I can remember,” I have been asked a question along these lines:
- “My girlfriend had a PFA against me, but she called me. The PFA is over now, right?”
The Protection From Abuse (PFA) Act is a civil case, filed in family court, that provides legal protection for victims of domestic violence. In cases where the complainant wants no contact whatsoever, the Court can order the defendant to stay away completely. The Act allows judges to completely evict and remove a defendant from the house — even if the defendant still pays the rent/mortgage, and even (in some circumstances) if the house is completely in the defendant’s name!
In cases where the complainant wants some contact — or where some contact is inevitable, as in where the parties have kids together — the Court can make provisions for that too. The Act allows for PFA Courts to make temporary orders about child custody and support, and provisions to allow the parties to get their property (my all time favorite PFA negotiation involved my client wanting his Rush CDs and extension cords, and the other party wanting the pet pink tarantula. Seriously.)
The Act allows judges to impose these restrictions for up to 36 months. Violating the terms of the order is an offense called Indirect Criminal Contempt (ICC), punishable by up to six months in jail per violation.
So for the duration of those 36 months, the defendant must abide by the order — usually to stay away and have no contact — or face jail. 36 months is a long time, however, and it is not unusual for the protected party to contact the defendant at some point. Many times a complete reconciliation has occurred, and the parties get back together.
What many people don’t realize, however, is that even when the parties have reconciled, the PFA order remains in effect. Only a judge can vacate — undo — a Court order. Not the protected person on his/her own. A judge, and only a judge.
So imagine a scenario where the police are called to house for a noise complaint — loud stereo, whatever. No domestic violence involved at all. The homeowners HAD a PFA, but they have since gotten back together. The plaintiff no longer feels that she/he needs protection. The police come, ask for IDs, run a wants/warrants check, and discovers that there is an active PFA in place. The defendant gets arrested for ICC, and as the cuffs are being slapped on, both parties scream out “BUT THAT GOT DROPPED!”
No it didn’t get dropped. The defendant broke the law simply by being there.
To do it right, the plaintiff — the protected person, and ONLY the protected person — must file a motion with the PFA Court to vacate the order. The judge will call the plaintiff into court and ask — on the record — if the plaintiff truly wants the PFA dropped and is doing so of her/his own free will. If the judge is satisfied that the plaintiff genuinely wants the order dropped, the judge will vacate it.
Then, and only then, may the parties live happily ever after.
Since law school, when I clerked for a solo who did Pennsylvania Post Conviction Relief Act (PCRA) work on a regular basis, I have repeatedly banged my head against the wall at how frustrating-to-impossible it is for a client to get relief.
Most of the time (about 99%), the sole issue in a PCRA petition is whether trial counsel rendered ineffective assistance of counsel — in other words, the defendant lost because the lawyer did a lousy job. Admittedly, very few of the PCRA petitions that are reviewed on the merits are meritorious — thankfully most of us know what we are doing — but the statute actually makes it nearly impossible procedurally to get to the merits, even when the lawyer did a bad job.
I had a client who is an immigrant. He pled guilty to a deportable offense in 2009, without ever having been advised about the potential immigration consequences. In 2010, The Supreme Court of the United States held in Padila v. Kentucky that criminal defense attorneys who do not give immigration advice are not providing constitutionally effective assistance — at a minimum, any competent defense lawyer should be able to advise a client whether his offense is deportable. My client fell exactly into this situation, and should get the benefit of the ruling, right? Maybe not.
His plea was entered in 2009, and the PCRA says:
“Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final…”
My guy pled In January, 2009, the conviction became final in February, 2009 (after the period to file an appeal ran), so the petition timed out in February, 2010.
But there is an exception!
“unless the petition alleges and the petitioner proves that… the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.”
So, if this is a new rule announced by either SCOTUS or SCOPA, and “held by that court to apply retroactively,” we win!
Not so fast… Let’s unpack that “exception” a bit.
- …the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided…
Padilla held that criminal defense attorneys have an affirmative obligation to advise their clients of the possibility of adverse immigration consequences that may follow a conviction. That is a new duty we all must adhere to — but is it a new right? Our mid-level appellate court, the Superior Court of Pennsylvania held that is not.
In Commonwealth v. Garcia, the Superior Court analyzed Padilla and found that it is not a new right, merely the application of an existing right (the right to effective assistance of counsel under Strickland) to a new set of facts.
We conclude that the United States Supreme Court’s Opinion in Padilla did not recognize a new “constitutional right” as envisioned by our Legislature in enacting Subsection 9545(b)(1)(iii). Rather, Padilla clarified and refined the scope of a criminal defendant’s long-standing constitutional right to the effective assistance of counsel during the guilty plea process. Because Padilla effectively overruled the result of the “collateral consequences” label that the Pennsylvania courts have given to the risk of deportation, we recognize the temptation to conclude that it announces a new constitutional right. However, we conclude that the United States Supreme Court’s application of Strickland to a new set of facts (counsel’s advice regarding the risk of deportation) and its resulting holdings based on current professional standards and expectations, did not establish new constitutional rights. Simply put, the “constitutional right” at issue in Padilla, i.e., the right to effective assistance of counsel during the guilty plea process, is not “new;” but rather, was defined in scope under the well-established ambit of Strickland. As such, Appellant’s attempt to invoke the after-recognized constitutional right exception to the PCRA timeliness requirements by specifically relying upon Padilla can afford Appellant no relief.
So… Padilla did not create a new right, even though (as the Garcia court noted elsewhere in the opinion) Padilla abrogated longstanding precedent here that we had no duty to give immigration advise at all. In other words, because he should have had it then, he can’t have it now.
Moving on to the next clause in that statute….
- and has been held by that court…
So, does this mean that the exception only applies if SCOTUS holds that the new right is retroactive? What if a US Court of Appeals rules that Padilla is retroactive it won’t count? Because the Third Circuit has ruled that it is.
Is my client’s petition not ripe yet because SCOTUS hasn’t yet ruled on Padilla retroactivity? Which brings me directly to the most frustrating thing of all…
- to apply retroactively.
So a new rule is retroactive if announced by SCOTUS and “held by that court to apply retroactively.” But here is the weirdest, craziest, most ridiculous thing about the language of the PCRA: Old rules are retroactive; new rules are not.
In Teague v. Lane, SCOTUS announced the framework for deciding whether constitutional rulings apply retroactively or not. The split the criminal procedure world into two camps — old rules, and new rules. Old rules are automatically retroactive and do not need to be specifically announced as such.
The Third Circuit case I linked to above analyzed Padilla through Teague and held that because the Court applied Strickland to a new set of facts, it is an old rule and therefore retroactive.
Remember Garcia, the Superior Court case? That court held that because SCOTUS applied Strickland to a new set of facts, it is an old rule, and therefore not retroactive.
Two courts, two identical analyses, two identical conclusions, and two diametrically opposite rulings.
There are circumstances where truly new rules apply retroactively, but they are rare — how often do “watershed” rulings come down the pike? I can’t actually think of one off the top of my head.
So, in effect, the PCRA says you have one year to file your claim, unless some high court ruling announces a new rule, and that same court says it’s retroactive, which the high court won’t do for new rules. If the ruling applies existing law to new facts (which, frankly, is how the common law works), it is not a new rule — you were entitled to that right all along, sir.
Which is why you can’t have it now.