Philly's Broken Justice

By Brendan Skwire
Add Comment Add Comment | Comments: 0 | Posted Dec. 20, 2009

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Is justice being served in Philadelphia?

If you haven't been reading the Philadelphia Inquirer's series on our broken judicial system, you really should: it lays out in excruciating detail the failures of our "system" (and I use that term extremely loosely), from the broken bail system to the "three strikes rule" that allows defense attorneys to game the system to the 47,000 fugitives on our streets to D.A. Lynn Abraham's failure to properly record and track convictions. It's a nightmare of epic proportions: for chrissake, the Clerk of Quarter Sessions' office doesn't even have computerized records, relying on "paper notations" like it's 1972 or something.

This broken system cries out for remedy. One thing it does not cry out for is discarding Philadelphians' constitutional rights, which is the facile and hysterical conclusion of the Inquirer's Monica Yant Kinney, who wrote last week, "In 1996, the state Supreme Court issued a ruling creating a bizarre precedent that, in a police encounter, the citizen raising suspicion has a constitutional right to ignore officers' requests, flee and toss contraband if the police officer did not have 'reasonable suspicion' to stop him in the first place."

Kinney adds, "'Reasonable suspicion' takes probable cause to an absurdist end where it's almost impossible for police to question a street thug. Because if they do, and if he runs, the charges won't stick."

I suspect a number of Kinney's readers and commenters are lawyers, because several called bullshit. "I suggest the author take a basic course in constitutional law if she wants to comment intelligently," wrote one. "The police cannot simply walk up to anyone and grab them and pat them down for no reason, we have constitutional rights protecting us from the government baselessly searching our persons, property and homes -- that is a good thing. "

"Sure, the police can walk up to you and ask you questions, but you don't have to answer them and can simply walk off; if they stop you then the government has seized you and they have to have a basis for doing so," wrote another. Several asked if Kinney had actually read the decision, or if she simply took "a D.A.'s interpretation of the opinion as gospel". I e-mailed Kinney to ask as well, but have received no response.

So since it looks like she didn't read the court's decision, and since her response to dealing with our broken judicial system seems to be "make it easier to arrest people," I dug up Commonwealth Pennsylvania v. Danny Matos -- the court case at issue in Kinney's column -- and gave it a good reading. Kinney has Matos all wrong: the case is about probable cause and the individual's right to be left alone by the police.

The facts of that case, in essence, are:

• That police responded to a report of individuals selling drugs on the street;

• That when the police arrived, Mr. Matos and two others ran;

• During the chase Mr. Matos threw away a bag that was later discovered to contain cocaine.

The question the court considered was whether police pursuit constitutes seizure, and found that under Pennsylvania's state laws -- which go further than the federal government's in terms of privacy protections --  state protection was "unshakably linked to a right of privacy in [the] Commonwealth." In other words, Pennsylvania affords its citizens greater privacy protections than the U.S. government, so that simply fleeing when a police officer arrives doesn't constitute probable cause or reasonable suspicion.

Chief Justice Ralph Cappy, who wrote the opinion, argued that "It has long been the rule in Pennsylvania that an individual has no duty to stop or respond to an inquiry by the police. Although the police may initiate an encounter with a suspect, and request information absent any level of suspicion," that encounter "carries no official compulsion to stop or respond." Cappy added that to decide otherwise "if carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless citizens into surrendering whatever privacy rights they may still have."

So no, Monica, it's not some "bizarre precedent" the court just came up with in 1996: it's settled law. And frankly, I agree strongly with Judge Cappy: having dealt with the police a few times in my life, they are very good at getting you to surrender your rights all by yourself. Allowing the police to pat down anyone who looks suspicious is a recipe for disaster like another one that played out this spring.

Now, while I think Kinney is wrong on the merits about the court's decision in Matos, I can't fault her for being outraged about our broken justice system: who isn't outraged at the idea of 47,000 fugitives and witness intimidation? Yet, making it easier to arrest people isn't the answer: our prisons are already full to capacity, and the mayor has long entertained house arrest or day-reporting for non-violent drug criminals to alleviate the strain.

A better target for Kinney's anger would be the court system's Rule 555, which "a Municipal Court practice that... gives prosecutors three tries to conduct a preliminary hearing -- or face dismissal of a case." This has led to more than a little gamesmanship in which defense lawyers delay and postpone hearings in an effort to make it difficult for witnesses to show up, and hopefully get the case tossed when a preliminary hearing becomes impossible. The result is that violent criminals remain at large, where they can terrorize (or kill) any witnesses and continue to ruin their neighborhoods.

I think Rule 555 is a hell of a lot bigger problem than Pennsylvanians' 233 year-old protections against overzealous police. The problem, as I see it, isn't that the police don't have enough power: it's that the courts undermine their own mission with anachronisms like Rule 555, denying crime victims their day in court.

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