(NB: This article was based on interviews with attorneys, court employees, police officers, defendants, and personal observations by this reporter in actual courtrooms and in the Philadelphia Criminal Courthouse. All names have been changed. Multiple real personal stories have been condensed to provide a hypothetical scenario where you are the defendant.)
You’ve rejected every plea deal. You’re one of the few cases that’s made it to trial. Your public defender has urged you to take the deal. You’re innocent, and you refuse. You’ve waited almost a year for this day, and you finally will be able to tell your side of the story. During that year, you’ve lived in constant fear. As a defendant on bail, even being pulled over for running a red light or being in the same room as a potential witness against you (even family members) could have landed you in jail with your bail revoked. The District Attorney knows this and is hoping you’ll do something – no matter how innocent it looks – to land you in jail and to limit your options. You never leave your house if you can help it. You miss weddings. Funerals. Family gatherings. Your heart races when you hear sirens going by.
But you’ve made it! You’re going to trial.
If you’re lucky, you’ve had a hour to go over the facts of your case the week before, and to prepare your testimony. Your attorney has a mountain of cases on their desk, and may even remember your name and what you look like on your trial date. By now the District Attorney’s Office has given your lawyer all of evidence they have against you – called “discovery” – and you’re confident that the evidence of your innocence that you’re collected will eventually exonerate you.
You get to court bright and early because your subpoena says you need to be there at 9:00 am. As I discussed in a previous column, that doesn’t mean your trial starts at that time. You go through the line, emptying your pockets and removing your belt to be run through a scanner. You walk though a metal detector, gather your things, and join the throng of defendants, police officers, witnesses, and attorneys jostling for a place in the elevator.
(Author’s note: If you want to be glared at by police officers, wear a press pass during this process.)
You get to the fifth floor, and enter your courtroom. Outside you may have seen the witnesses against you, but you quickly look away before anyone can unjustly claim you’ve intimidated them. You sit and wait for your lawyer to appear.
And wait. And wait. And wait.
Photo: Mark Dobbins
Real Scene: An Assistant District Attorney (ADA) hands a file to a police officer in the hallway of the courthouse that has the evidence that will be used against the defendant – including the arrest report. The officer “refreshes their recollection” by memorizing this report, and all of the other evidence collected since the arrest. This is information that the arresting officer could not have known at the time of your arrest. But they know it now, and the officer will “expand” their testimony to include language and this information that will be geared to ensure your conviction: “in plain view,” “furtive movement,” etc. The ADA goes over the officer’s testimony. In violation of the rules of criminal procedure, I observed one ADA say, “No, you want to say this,” and the officer repeated their planned testimony until the ADA was satisfied that they will say what the ADA wanted to hear to convict. I witnessed this myself just feet away from this pair with my press pass in plain view – and on other occasions. That’s suborning perjury – and it’s against the law.
Your case is called. You’ve elected for a bench trial, so the judge goes over your waiver of your right to a jury. You sit to the left of your lawyer, and start praying that not all of the witnesses show up. They do. Damn.
Real Scene: Jane is arrested in November of 2016 and charged with retail theft for forgetting to pay for a soda. Her family cannot afford the five-hundred dollar bail. She sits in jail. During her first hearing, the complaining witness fails to appear. The case is continued for another six weeks. Six weeks of no income. Six weeks where she rarely sees her children. The case is called a second time. Still no witness. Another six weeks of jail. Another six weeks of your public defender telling you that all Jane needs to do is sign this piece of paper and she can go home. She justs have to plead out. Jane refuses. During the third hearing the witness still fails to appear. The judge tells the ADA to either withdraw the charges or they will dismiss. They case is withdrawn. Jane’s processed and eventually released. Jane has lost her job. She’s lost her apartment and everything that she owns. All she has are the clothes on her back. Where does she go to get her life back? She can’t sue the District Attorney – under Pennsylvania law, they’re immune from that. She can’t sue the police. She’ll lose. With no apology and no offer of assistance Jane gets on the bus with her mother. Jane and her children can’t stay long at her mother’s apartment because it’s Section Eight – and there are limits as to who can live there. Jane has no job, no money, and about two weeks to figure something out before she ends up in a shelter. Over a can of soda that, in the haste of taking her children out for some pizza, she forgot to pay for. Jane breaks down in front of me and starts sobbing, “What do I do?”
The ADA calls the arresting officer. It’s clear to everyone in the room that they’ve been coached. Their answers use language and phrases that no regular person uses. It’s also clear that they’re lying. Yes, the police lie every day in court – hundreds of times. The ADA knows that they are lying and will put them on the stand anyway. The ADA will “rephrase” questions if they realize the officer has forgotten their pre-planned answers. Every person in the room knows that they are lying – and no one says a word.
Photo: Mark Dobbins
Your lawyer cross examines the officer, and tries to poke holes in their account. But it’s too late. The damage has been done. The judge believes their lies.
Fast forward: You’re found guilty.
Because you’re accused of a non-violent offense, and since you’re never been arrested before, you’re lucky. You’re later sentenced to two years probation, plus court costs. You’re a felon, but you get to go home.
Real Scene: Bob goes home and start talking to his family and neighbors. He’s heard something that stops him cold. His neighbor said that the DA’s office questioned them about his case, and they told the ADA that you were miles away when they say you committed the crime. But they never told your lawyer about that witness – and that’s what’s called a “Brady Violation,” after the case that said the prosecution must turn over all evidence about the crime – even evidence that may point to your innocence. Bob calls his lawyer, excited that his case may be overturned. That’s when Bob finds out from his lawyer that it doesn’t matter. Brady violations happen every day. Bob has one witness against the weight of the police and District Attorney’s Office. No one will believe him. Bob’s conviction stands.
At this point you’re wondering why this happens. How can the District Attorney’s Office get away with this? You’ve watched court dramas on television and that’s not what happens.
It happens every day.
When I planned this series, I was like you. I believed that the system was self-correcting, and that people who lie on the stand get caught, and punished. I believed that the District Attorney existed to charge bad people and to seek the truth. That the truth mattered above all. That there was justice.
Then I started talking to the people who work in the system. And I was shocked.
In Philadelphia, our District Attorney, Seth Williams, isn’t one of the good guys. For years people have noted his ethical lapses. Then this happened. He took money from tax cheats. He took gifts from people who had business before his office. The words “scandal” and “District Attorney” now are synonymous in Philadelphia. In any jurisdiction he’d be facing criminal prosecution. But in Philadelphia, he’s only looking at fines. He will walk away smiling.
And that’s wrong. I’ve called out our District Attorney for his ethical lapses. Like you, I expect out District Attorney to be ethical. To follow the rules. To be one of the good guys. To put justice above personal ambition. I posted one tweet calling for him to resign.
This was his response.
Photo: Mark Dobbins
In my next column, I’ll write about the wreckage this system causes. Lost jobs. Lost families. Lost homes. Lost hope.
Oddly enough. I have been called for jury duty this Thursday. Once my name is called – how long do you think until I’m shown the door?
Place your bets.