Two justices back plan to spare Philly crime victims from some testimony

In a sweeping move to unclog Philadelphia's jammed criminal-justice system, two influential justices of the state Supreme Court have endorsed a plan to spare thousands of victims of property crimes from having to testify in the early stages of criminal cases.

Chief Justice Ronald D. Castille and Justice Seamus P. McCaffery are seeking backing from the entire high court for a new rule stipulating that in Philadelphia, only police need take the stand at preliminary hearings for suspects accused of stealing cars, taking other goods, or breaking into businesses or homes.

Police would stand in for victims, testifying that the victims had reported items stolen. This would end the current procedure under which as many as 7,000 victims yearly are subpoenaed to show up for Municipal Court hearings merely to attest that they owned property taken without their permission.

The two justices say the change would be another major step in their drive to overhaul a Philadelphia court system that puts victims through a gauntlet of delay and repeated appearances even as it fails to dispense justice on the merits in thousands of cases.

"This will be a sea change in how Philadelphia has been doing business," McCaffery said in an interview. "This will have an immediate and significant impact."

If approved, as expected, by a majority on the seven-member high court, the policy would be the latest shake-up of a city court system riven by change since The Inquirer published an investigative report on the courts, "Justice: Delayed, Dismissed, Denied," in December.

The newspaper portrayed a system harsh on victims and awash in witness intimidation. The paper reported that Philadelphia had one of the nation's lowest conviction rates for felonies and one of the highest rates for fugitives from court. In thousands of instances, cases simply collapsed after numerous postponements.

Defense lawyers oppose the new policy toward preliminary hearings for property crimes, saying it erodes the right of defendants to confront their accusers.

But advocates, including Philadelphia District Attorney Seth Williams, say it will properly drive up Philadelphia's abysmal conviction rate, preventing defendants from walking free merely because the victims miss a hearing. They also say that the shift simply brings Philadelphia policy in line with the rest of Pennsylvania.

"Why do we have defendants who live in Cheltenham who only come into Philadelphia to steal cars?" said Williams. "Because they know what's going to happen to them in Philadelphia is going to be totally different than what happens in Montgomery County."

Williams, a Democrat who took office in January, embraced the paper's findings as evidence of the need for major change, as have Castille and McCaffery. In particular, the three leaders have endorsed steps to transform Municipal Court, the lower-court arena in which most cases expire.

In another pending change, Williams and the city courts' administrators are about to implement a plan to abolish the practice of holding many Municipal Court hearings in courtrooms inside neighborhood police districts.

The district attorney has criticized these hearings, often chaotic sessions in police roll-call rooms across Philadelphia, saying they put victims and defendants in close proximity in ways that encourage witness intimidation. The scattered hearings also all but guarantee that overbooked police will miss hearings, police and prosecutors say.

As of Nov. 1, all such hearings are to be centralized at the Criminal Justice Center, near City Hall.

The new policy excusing victims of property crimes dovetails with this centralization. Backers say cutting back on routine victim testimony will ease the transition, reducing congestion in a courthouse notorious for its jammed elevators and long lines.

"It will reduce the number of witness appearances in a court proceeding," McCaffery said. "It will allow the proceeding to be more efficiently handled. Cases will go on more quickly."

In Philadelphia, suspects initially undergo a preliminary hearing at which Municipal Court judges - akin to district justices in the suburbs - decide whether enough evidence exists for the defendants to have a full trial in the higher Common Pleas Court.

Now, at these Municipal Court sessions, owners of stolen property must show up for at least one hearing, and sometimes more, either to testify or sign what is called an "affidavit of ownership and non-permission." This form declares that they owned the property and did not give the thief permission to take it.

In some cases, however, judges require the victim to return to subsequent hearings if the defendant or defense lawyer was not in court.

Under the proposal backed by Castille and McCaffery, victims of property crime would no longer be required to testify at these Municipal Court hearings unless they were eyewitnesses to the theft. Police hearsay testimony to the effect that the victim had reported a crime would be sufficient.

The property owners, however, still would be required to testify once the case went to trial in Common Pleas Court.

In an interview, Castille, a Republican and a former Philadelphia district attorney, said his proposed rule would put local judges on notice to follow what the law already permits in Pennsylvania.

"It's just an explanation of the existing case law," the chief justice said. "It's just spelled out in clearer terms."

McCaffery, a Democrat, agreed.

"All we are trying to do here is to make Philadelphia a part of what the other 66 counties in Pennsylvania have been doing historically," he said.

Critics say the requirement that victims testify in Philadelphia appears to reflect a mind-set of Municipal Court judges keen on holding elaborate hearings.

The two justices said the current system permitted some defense lawyers to play a waiting game, seeking delays in hopes that victims would miss a hearing.

"They're trying to wear these people down," Castille said. "That's all."

For McCaffery, the proposed policy is another step in a long-term campaign to permit the greater use of hearsay.

McCaffery, a former Philadelphia homicide detective, began this push a decade ago as administrative judge of Municipal Court. Against opposition from the Defender Association of Philadelphia and some Municipal Court judges, he changed court rules to permit commanders in narcotics busts to summarize the actions of other police in the operation. This cut dramatically the number of officers needed to testify about such raids.

The new proposal would further expand such hearsay testimony. Williams said the current system still made unneeded demands on victims.

"Why do I have to come to court to testify that I didn't give you permission to steal the gutter off my downspout to sell it for scrap?" the district attorney asked.

Like the two justices, Williams said the rule change only would bring Philadelphia into line with the suburbs.

"I believe that this is appropriate," he said. "I'm not trying to create the People's Republic of Philadelphia. I'm saying look at Media and see what's going on there."

Defense lawyers criticized the proposed shift as unfair to defendants.

Charles A. Cunningham, a top official at the Defender Association, also faulted the justices for pushing the change without first inviting public comment and an extensive review by an advisory committee to the high court.

"I understand that the Supreme Court has the authority to do this, but in the past they've afforded people who might have divergent views an opportunity to comment," Cunningham said. "When making these kinds of changes, they should have as much feedback as possible."

Michael J. Engle, president of the Pennsylvania Association of Criminal Defense Lawyers, said that in some cases, there is a genuine dispute about whether someone had permission to use a car or take an item.

Rather than adopt an ironclad rule, Engle said, prosecutors and defense lawyers could work out in advance whether a property owner needed to testify.

"None of us believe in wasting people's time to come into court when they don't need to, but the commonwealth just shouldn't have a blanket rule that they don't have to bring someone in," said Engle, a Philadelphia lawyer. "That is fundamentally unfair."

Castille, McCaffery, and Williams dispute that.

According to the chief justice, court precedent has long established that the right of defendants to confront their accusers applies only during trials, not at preliminary hearings. "It's really a trial right - the right to confront witnesses."

Williams noted that the evidentiary standard at preliminary hearings was low. Judges, he said, need only to decide that a prima facie case has been made - that a crime likely occurred - to hold a defendant over for trial.

"The point is, is there sufficient evidence at a preliminary hearing to show there's a prima facie case? It's not: How mad is the victim? Will the victim show? It's: Did the crime occur?"

As things stand, Williams added, "if the victim doesn't come to court, you get a free pass. That's ludicrous."

Businessman Richard Lepow knows all too well about the burdens of the current system. He has had to show up in Municipal Court numerous times for break-ins at his automotive business.

"I've been to the district preliminary hearings many times, spending a lot of time and effort on nonsense - just for me to testify that (a) I'm the owner and (b) that I locked the door at night and somebody broke in when I was not around."

He added: "As for the business owners, they've suffered enough."