Gaming the System

By Tom Ferrick Jr.

If you ever wondered how police handle a drug stakeout, I can tell you.  There is a team of narcotics officers who stake out a drug corner.  They remain out of sight. One officer, usually the sergeant heading the team, observes while the dealer makes a sale.

He alerts an officer who is nearby.  Out of sight of the dealer, the officer arrests the buyer.  Another officer arrests another buyer.  Another officer, in a different location, will arrest a third buyer. A fourth will arrest a fourth buyer. And so on and so forth, until the sergeant emerges from hiding and arrests the dealer, who is charged with multiple counts of illegal drug sales. This is bad news for the dealer because the more counts the longer the prison sentence.

It's important to know this procedure because of what comes next: the preliminary hearing before a magistrate on the charges.

In any other jurisdiction in Pennsylvania, the arresting sergeant would appear as a sworn witness and describe what I just described above. Most likely, the magistrate would order the dealer to stand trial in the local Common Pleas Court on the four felony drug counts.

But, not in Philadelphia.

For many years in Philadelphia, every officer involved in the operation would have to appear in court at the preliminary hearing.  And every officer would have to testify that he did, in fact, arrest the buyer and the sergeant would have to testify that he say the dealer sell the drugs to this particular buyer.

One thing about may not know about the courts in Philadelphia is that the odds of getting five police officers in a courtroom at the same time are negligible. Their schedules change. Their assignments change. They could be on vacation or, just as likely, testifying in another courtroom about another crime.

The prosecutor had two options: ask for a postponement of the hearing on the slim chance that the next time all the officers will show up or he could proceed with the officers present.

If he did proceed, the defense lawyer would move that the charges connected with the absent officers be dropped -- and they were.  So, instead of being charged with four counts or drug sales, the dealer was now charged with one or two or three, depending on the numbers of arresting officers in the court that day.

For years, this was standard operating procedure in the courts. In the late 1990's, in a bid to cut down on police overtime, Mayor Ed Rendell pushed the courts to allow hearsay testimony in these drug surveillance cases.  They did.

The defense bar fought it and took the case to the state Supreme Court. The high court upheld the admissibility of hearsay - in this limited instance.

This is just one way the defense bar games the system in Philadelphia - and it happens in many different types of cases.

For instance, if I were a pickpocket, I know exactly where I would go to ply my trade: Philadelphia International Airport.  I'd pick the pockets of marks all day and if I got caught, the odds are I would go free.  Why? Because Ms. Smith from Chicago whose wallet I stole from her purse probably isn't going to fly back to Philadelphia to testify at my preliminary hearing.  Under procedures now used in Municipal Court, she does have to appear personally and testify at the preliminary.

Remember, anywhere else in the state, the arresting officer would testify that he caught the thief with Ms. Smith's wallet and that on that day she signed a affidavit saying that it was, indeed her wallet, and it was, in fact, taken from her against her will.

For years, various folks have tried to get the Philadelphia courts to follow the rules that apply in the other 66 counties in the state and allow his hearsay testimony at prelims.

The local judges have refused. Now, under pressure because of The Inquirer's series on the city court's disgraceful dismissal rate, the state Supreme Court has intervened.

The court has the rule-making power in this state and it could, through changing those rules, set new standards over preliminary hearings in Philadelphia.

The court is reviewing these rules and the man in charge of the review is Justice Seamus McCaffery.  McCaffery is an ex-cop and an ex-Municipal Court judge. When he served as president judge of Municipal Court, he tried to get his fellow judges to admit hearsay in routine cases, such as auto theft, car break ins and petty thefts.  They did, for a while, and mostly abandoned the practice after McCaffery left to join the appellate bench.

On Tuesday (March 9), McCaffrey appointed a panel of judges, lawyers and prosecutors to review the local courts procedures and come up with way to lower the dismissal rate.

It won't be easy.  There will be ferocious resistance from the defense bar and from within the judicial system.

The dirty little secret about these procedures and practices is that they are used, de facto, to control case volume in the Philadelphia courts. If they allowed routine hearsay at preliminary hearings and made it easier for cases to move up to Common Pleas Court, that court would be flooded with thousands of additional felony cases a year.

The system - from hiring new judges to building more prison cells - would have to be ramped up, probably at a cost of millions of dollars.

So, the McCaffery panel has a job cut out for itself.  In effect, it is going to have to decide how much justice we are willing to pay for.

Tom Ferrick Jr. is senior editor of Metropolis