City's grand-jury policy has positives, downfalls

THE MORNING OF FEB. 7, Rasheed Kellam had a full schedule.

He picked up his tax-refund check, visited his doctor, cashed the check, checked in with his parole officer, grabbed his blood-pressure medication from Rite Aid and got a hot dog at 7-Eleven.

Then, steps outside his Feltonville home, he got arrested.

For nearly a year, he sat in a city jail, unsure why exactly. In that time, a secret grand jury investigated and eventually indicted him in a home-invasion robbery targeting a couple who lived a half-mile away from him.

Two months before his trial, prosecutors sent Kellam's lawyer the evidence they had against him - which became the key to his exoneration. As soon as defense lawyer David B. Mischak saw the time of the crime, he dug out Kellam's pharmacy receipt, signature and other proof showing that Kellam couldn't have committed the crime for which he'd been indicted: He'd been picking up his medication when the home invasion happened.

"I told the cop everything [about his whereabouts the day he was arrested], but he told me to take it up with the judge," said Kellam, 27, who remained behind bars until Dec. 18, when a judge finally threw the case out.

Kellam was among the first of about 550 defendants in Philadelphia to go through the city's new indicting grand-jury system.

The change, implemented in December 2012, allows prosecutors to skip the preliminary-hearing part of the court process and instead present their cases before an indicting grand jury in secret and without the defendant or defense lawyer there to listen or speak.

The goal, the District Attorney's Office has said, is to protect witnesses and victims against intimidation, a rampant problem in Philadelphia.

Supporters of the grand-jury measure say it has been successful so far, with 87 percent of cases presented to the grand jury resulting in indictment, and an additional 3 percent leading to guilty pleas.

But the new system has stoked a revolt of sorts among defense lawyers, who say it imperils a defendant's right to a fair trial and their ability to adequately prepare a decent defense. In cases like Kellam's, it could leave innocent people languishing behind bars for months, powerless to defend themselves, defenders said.

The Pennsylvania Association of Criminal Defense Lawyers and the Defender Association of Philadelphia challenged the new indicting grand-jury system's constitutionality - but a judge denied the challenge. Both groups are vowing to take the issue up on appeal for cases that end in convictions.

Some defense lawyers predict the new system will prompt a tidal wave of appeals by convicts who will claim their attorneys weren't given enough time to mount a decent defense.

"You get a guy in jail and you can't even argue for bail for crying out loud, because you don't have the facts of the case," defense lawyer Jack McMahon said. "So you get guys in jail for a long time without a clue why they're there. It's very Third World."

Defense lawyer Michael J. Engle, who led the constitutional challenge, agreed: "It is no small thing to be denied the name of the person who is accusing you."

Among the chief objections: Defense lawyers don't get prosecutors' grand-jury materials until two months before trial (and prosecutors have the option to withhold it until the trial itself). Defense lawyers say that doesn't give them enough time to investigate and strategize, and allows hard evidence like surveillance and 9-1-1 tapes to be destroyed, witnesses' memories to fade and more.

Some object to how prosecutors select which cases to present to the indicting grand jury. The measure is intended to apply only to cases in which witnesses have been - or could be - intimidated.

But such a "speculative standard . . . creates a system that is open to abuse," said Engle, vice chairman of the Philadelphia chapter of the Pennsylvania Criminal Defense Lawyers.

"A judge is supposed to look into a crystal ball and say, 'Yeah, [intimidation] could happen.' You could literally say that in every case," Engle added. "In every other area, we do not allow [judicial] decisions to be based on conjecture, speculation and innuendo."

Defense attorney A. Charles Peruto Jr. agreed: "It's a political tool; it just gives the D.A. the advantage of having no preliminary hearing."

Homicide cases - most ripe for intimidation - rarely go before the indicting grand jury, Engle added. Kellam's case involved a home invasion in which no one was injured and the thugs stole $25, a purse and a debit card.

"He had no idea who these victims were and certainly had no intention of intimidating them," Mischak said. "There has to be a better filtering process to determine whether there are witness-safety issues. What should not be eroded is the due-process rights of someone to defend themselves against serious criminal charges."

Still, prosecutors defend the grand-jury process as necessary in a city where a no-snitching culture too frequently thwarts justice.

Defense lawyers' criticisms "ring hollow and are just an attempt to criticize the system," said Laurie Malone, deputy district attorney for the pretrial division, which oversees the indicting grand jury.

"This is not about getting convictions," Malone added. "It's about getting the case to a jury or a judge and not fall at the preliminary hearing because we can't get even get the witness [to testify]."

After his stint in jail, though, Kellam has little time for the pingponging arguments about indicting grand juries.

When he was locked up in February, Kellam was a state parolee trying to straighten his life out after being arrested in 2003, when he was 17, for attempted murder. He was convicted and served five years in an upstate prison before coming home in 2009.

He was charged in April 2012 with an armed robbery - a case he attributes to mistaken identity. Prosecutors withdrew that case five months later, and it resulted in no parole violations for Kellam, according to court records.

In the 10 months he spent in jail last year, he lost his apartment and part-time bakery job. He spent the first days of 2014 visiting PennDOT to renew his identification card and visiting a temp agency looking for work.

He now stays with his aunt in the Ludlow section of North Philadelphia and avoids going anywhere without her or other relatives, lest police swarm to arrest him again.

"I'm scared to walk the streets now, because the cops could just pull up in the car. They can just grab anybody and say they robbed someone. I don't trust the cops. I don't trust anyone," Kellam said. "I'm scared it might happen again."

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