Dembe Discusses Pilot Jury Selection Program

Philadelphia Common Pleas Judge Pamela Pryor Dembe, supervising judge of the criminal branch, had a load of news for the criminal justice section of the Philadelphia Bar Association during its meeting Tuesday.

In addition to Dembe’s critique of the Clerk of Quarter Sessions’ Office and reporting that the First Judicial District is thinking about taking over some of the Quarter Sessions’ Office’s functions, the judge said that the Philadelphia District Attorney’s office and the Defender Association of Philadelphia have agreed to a pilot jury selection program in which jury selection will be conducted without the supervision of judges.

Dembe, who came on about a year ago as the criminal branch supervising judge, said the change to a model paralleling jury selection in civil cases will allow lawyers to ask more questions of potential jurors.

Initial cases for the new model will be selected on a case-by-case basis, Dembe said.

The FJD is also working on instituting a one judge-one defendant model for violation of paroles/probations, to save time undertaken to get an agreement between the court, defense counsel and the commonwealth to restore a defendant to probation or parole with a variety of services just to have another judge sentence the defendant to jail for the violation, Dembe said.

Currently, there are 50,000 defendants with VOPs before one judge, 5,000 defendants with VOPs before two judges, 500 defendants with VOPs before four judges, 50 defendants with VOPs before four judges and five defendants with VOPs before five judges, Dembe said. 

Common Pleas Court is also working on improving the turnaround time in court transcripts prepared by court reporters, Dembe said. Transcripts will now be sent out on compact discs because the provision of paper transcripts is becoming a burden more and more as the court’s budget declines, Dembe said.

In response to an audience comment that sending transcripts in CD form would require lawyers representing indigent clients to bear the costs of printing transcripts to use in court, Dembe said she would be more sympathetic to the ongoing court-appointed counsel fees issue if attorneys had responded to her past requests for information on how much it costs to run a law office. She said the ball is in attorneys’ court to give her that information so she can educate her fellow judges about the overhead costs of law offices.

Dembe also said she has put together a working group of judges who meet together every two weeks to focus on one topic at a time. The results of the meeting are sent to all the criminal judges via e-mail, Dembe said.

This model is like the “Sheppard committee,” Dembe said, which Common Pleas Senior Judge Albert W. Sheppard Jr. ran when the Common Pleas Court was down several judges following the late 1980s Roofer’s Union bribers scandal in which two dozen judges were implicated in accepting envelopes of cash as Christmas gifts from union officials and Common Pleas’ massive civil backlog in the early 1990s.

– Amaris Elliott-Engel, staff reporter

 

‘You Kids Can Work It Out’

This is what a father wrote in a will that was brought to me. It illustrates another fundamental point about estate and retirement planning.

The father had decided to make his estate planning easy. “I’ll just buy CDs in my name and in the names of each of my children. That way, when I die, each of them will have a CD now in his or her sole name.” So, to carry out this idea, the father bought one CD with Child No. 1’s name on it in addition to his, a second in the name of Child No. 2 and the father all the way up to five children. The trouble was, he forgot how much he had purchased for each child, so the amounts were uneven. One child would get $100,000, another $10,000.

But Dad planned how to solve that problem. In his will, he wrote: “If any of the CDs I bought aren’t equal among my children, I ask them to straighten it out.” What do you think happened? Wrong, they did straighten it out. In one of those unusual family situations, the children who got more recognized their obligation to the others and entered into a family settlement. Sometimes it snows in April.

It’s important to remember that a will isn’t the only document that determines how assets are distributed. Life insurance beneficiary forms, retirement plan beneficiary designations and joint title on assets are all forms of testamentary dispositions; that is, they are all wills. Most people don’t know where these forms of wills are, sometimes can’t remember what they say and usually haven’t put them together so that they understand what their estate plan is. But it’s important to do this, because not every family (and, in fact, very few) is as close and understanding as the one described above.

Robert H. Louis
Saul Ewing
http://www.saul.com/

 

Immigrations and Customs Enforcement Initiatives Against Human Trafficking, Smuggling

Human trafficking is the recruitment, harboring, transportation, provision or obtaining of a person for labor or services through the use of coercion, force or fraud. Human trafficking is usually for the purposes of subjecting an individual to involuntary servitude, debt bondage or slavery. Sex trafficking occurs when a commercial sex act is induced by coercion, force or fraud or when the person induced to perform these acts is under 18 years of age.

Similarly, human smuggling is the importation of people into the United States through the deliberate evasion of U.S. immigration laws. This offense includes bringing illegal aliens into the U.S. as well as unlawful transportation and harboring of such aliens already in the country illegally.
Human trafficking and human smuggling pose serious risks to homeland security.

Terrorists and criminals can often access the same routes and use the same methods used by human smugglers. U.S. Immigration and Customs Enforcement’s Human Smuggling and Trafficking Unit strives to identify criminals and organizations involved in these illegal activities.

In the relentless fight against human smuggling and trafficking, ICE has developed highly successful initiatives that focus on attacking the infrastructure that supports smuggling organizations as well as the assets that are derived from these criminal activities. This might include seizing currency, property, vehicles and other assets.

A new tool in ICE’s fight against human smuggling and trafficking is the Civil Asset Forfeiture Reform Act, or CAFRA. CAFRA provides notice to property owners whose properties have been identified as being used to facilitate smuggling or harboring aliens.  This is a significant tool because many employers often turn a blind eye to the facilitation of criminal activity on their property. ICE remains thoroughly committed to preventing the smuggling and trafficking of individuals through these initiatives that adversely impact organizations engaged in these illegal practices. 

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
http://www.dmclaw.com/

Girard-diCarlo to Get Ambassador Appointment

The White House announced on its personnel page that the president intends to nominate Blank Rome Chairman David. F. Girard-diCarlo as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Austria.

Girard-diCarlo has been a major donor and fundraiser for President George W. Bush and had spent several years living in Washington, D.C.

After spending more than 20 years serving as either managing partner or chairman of Blank Rome, Girard-diCarlo said last year that he would resign as chairman effective Jan. 1, 2009.

Once his nomination is in place, it would have to go through the senate confirmation process.

The firm couldn’t offer much comment on the nomination at this point, but managing partner and Chief Executive Officer Carl M. Buchholz said in a statement “David has been an important leader for our firm, and we are thrilled that he has received this nomination from the president.”

– Gina Passarella, Staff Reporter

 

 

Saul Ewing Names New Co-Chairs of Bankruptcy Dept.

With the departure of bankruptcy chairman Norman Pernick over Saul Ewing’s policy change to accept financial institutions as clients, the firm had some leadership spots to fill.

It announced today that Jeffrey C. Hampton, previously vice-chairman of the group, and Wilmington-based partner Mark Minuti will serve as co-chairman of Saul Ewing’s bankruptcy and restructuring department. Minuti is also on the firm’s executive committee.

As co-chairmen, Hampton and Minuti will manage the department’s overall client service strategy.  The department handles debtor and creditor cases, representing debtors, creditors’ committees, equity committees, trustees, creditors, landlords and other lessors, board members, purchasers, and parties defending litigation brought by debtors or pursuing claims against debtors.

In their respective practices, Hampton and Minuti represent debtors, creditors’ committees, trustees, unsecured creditors and other interested parties involved in bankruptcy, insolvency and workout cases. They also represent buyers and sellers of assets in bankruptcy cases

Saul Ewing had a longtime “no banks” policy that allowed the bankruptcy department to market itself as conflict free because the firm didn’t take on any financial institutions clients. As the firm began to form a new strategic plan over the past year to 18 months and prepare for growth, it decided after much debate to loosen the policy and represent banks on a case-by-case basis. That policy change led to Pernick leaving the firm to open the Wilmington office of Cole Schotz Meisel Forman & Leonard. Former department vice chairman Irving E. Walker also left with Pernick, along with four other attorneys from either the Wilmington or Baltimore offices of Saul Ewing.

– Gina Passarella, Staff Reporter

‘Lawyers Are Good’

I adapted this motto from that of Faber College (“Knowledge Is Good”), to illustrate a point about trust and estate planning. Lawyers are specially trained in the law and in legal writing for an important reason, which is so they can write documents that make sense and accomplish what they are supposed to do. But we do that so often that we sometimes forget that others aren’t trained in that way. In the trusts and estates world, we see many people trying to write documents without the necessary training.

This comes to mind because we have seen numerous advertisements lately for do-it-yourself kits for wills and incorporations. Well-known television advice givers and former counsel in high-profile murder cases are offering forms that permit people to write their own wills. Is this a good idea? No. One might think that, for all those people who don’t have any will, this is better than nothing. That sounds right, but it doesn’t seem to work out that way. We see numerous examples of wills that, because they are written without guidance, end up confusing the situation more than helping it. The real work of trust and estate planning is not the document; it’s the planning and thought that go into it.

There are similar problems that we see in “estate planning” that is done by financial planners, which often involves transferring assets to lifetime trusts to avoid the necessity of a will or probate. The idea of having your lifetime and testamentary financial wishes carried out through a kit doesn’t seem to make sense and, in the experience of many lawyers, it has created more work rather than less. And it’s not likely that the person doing the planning will come back to explain what he or she really meant. This type of planning had its genesis in a book written long ago, “How To Avoid Probate.” The theory was that probating a will was so difficult and revealed so much about a person’s private affairs, every effort should be made to arrange one’s affairs to avoid having to probate a will. That may be true in some states, but probate in Pennsylvania is easy and carried out by county officials who have streamlined the process to about half an hour. And, as for revealing to the world your estate plan and list of assets, unless you’re Marilyn Monroe or Betsy Ross, no one seems especially interested in reading your will.

There is a need, however, to assist people of modest means with estate planning. Lawyers often help with this work through the Philadelphia Bar Association, Senior Law Center and similar organizations. Do other professions offer as much pro bono assistance as lawyers? No. Despite that, there is a need for good estate planning advice for those with smaller estates, and anyone who has this expertise should consider volunteering with one of those groups.

Robert H. Louis
Saul Ewing
http://www.saul.com/

Change in Rules Clarifies Non-Judicial Members’ Role in Court of Judicial Discipline

A change made to the Pennsylvania Code of Judicial Conduct earlier this year clarified the clause prohibiting judicial candidates from making statements that “commit or appear to commit” candidates regarding cases. Similarly, the rule governing the political activity of non-judicial members of the Pennsylvania Court of Judicial Discipline also was changed earlier this year in order to clarify the rule.

The rule governing the political activity of non-judicial members of the Pennsylvania Court of Judicial Discipline was changed earlier this year in order to clarify and tighten the rule. According to Henry B. FitzPatrick Jr., counsel for the Court of Judicial Discipline, the language of Section C of Rule 7 of the “Rules Governing the Conduct of the Members of the Court of Judicial Discipline” was clarified in order to strengthen the rule governing against members of the court in charge of judicial discipline from aiding the election of judicial candidates.

“We want to be stronger about judicial candidates staying out of helping anybody becoming a judge,” FitzPatrick said. “Obviously this court has jurisdiction over judges … The hope is that this rule change will make it easier to understand.”

Similarly, a widely-publicized change made to the Pennsylvania Code of Judicial Conduct clarified the clause prohibiting judicial candidates from making statements that “commit or appear to commit” candidates regarding cases.

The rule originally said, “Non-judicial members of the court shall not hold office in any political party or political organization during the member’s term of service, and should refrain from political activity inappropriate to the member’s judicial office.”

The “should refrain from political activity inappropriate to the member’s judicial office” clause was removed.

The rule also originally said, “Non-judicial members should not act as leaders in any political organization or make speeches for or endorse a candidate for judicial office or judicial appointment.”

This part of the rule has been changed to read: “Non-judicial members should not act in any capacity in any political organization of a candidate for judicial office or judicial appointment.”

The rule also originally said that “non-judicial members should not publicly solicit or contribute funds for a candidate for judicial office or judicial appointment and nor serve as officers, members or volunteers in the campaign of a candidate for judicial office.

The rule has been changed to read: “Non-judicial members should not publicly endorse a candidate for judicial office or judicial appointment and should not solicit or contribute funds for a candidate for judicial office.”

The court’s eight members include two nonjudge, lawyer members and two lay people.

Just as the “commit or appear to commit” clause in the Code of Judicial Conduct was excised because of the critique of ambiguity, the prior language in the Court of Judicial Conduct rules barring court members from “inappropriate” political activity was taken out because people will have differing interpretations of what’s inappropriate, FitzPatrick said.

“I bet what you think is inappropriate is different than what I think,” FitzPatrick said.

FitzPatrick, who has been counsel to the court since 1997, said the rule was drafted shortly after the court started in 1994. The rule was changed in February, he said.

– Amaris Elliott-Engel, Staff Reporter

 

Filmmaking, Novel Writing and Pretrial Publicity Redemption

In California, the question is whether a prosecutor’s consulting with the makers of a major motion picture “Alpha Dog” based on a criminal defendant’s story creates a conflict sufficient to require recusal.

In this case, Jesse James Hollywood (I can hardly believe that this is his real name) is facing the death penalty for the kidnapping and murder of a 15-year-old boy in 2000. Hollywood was a fugitive in Brazil while prosecutor Ronald Zonen was providing information to the director and screenwriter of “Alpha Dog.”

Hollywood was captured in 2005 before the movie release. His lawyers filed a motion to disqualify Zonen holding that the pretrial publicity prejudiced the case and that Zonen acted unethically. The appeals court agreed saying, “Prosecutors should try their cases in the courtrooms, not in the newspapers, television or the movies.”

In a Supreme Court of California opinion filed Monday, Judge Kathryn M. Werdegar reversed the appeals court ruling. The court cautioned Zonen stating that his actions were “highly inappropriate and disturbing” but did not meet the standard of review for recusal.

Dan Slater of The Wall Street Journal writes that matters such as this continue the “age-old debate over whether it’s proper for prosecutors to try their cases in the news media.”

Personally, I believe that as long as we abide by the guidelines set forth in the various rules of professional responsibility and attorneys conduct strategic and solid voir dire, then the public has a right to know. In this case, Hollywood was a fugitive. Telling his story in a movie is no different than telling it on “America’s Most Wanted.” In fact, the movie may have helped lead to his capture.

Adam Liptak of the New York Times writes about the Hollywood case and a second decision this week where Santa Barbara prosecutor Joyce Dudley published a novel with similarities to a rape case that she was trying. The appeals court also disqualified Dudley, but the decision of the same Supreme Court reversed that.

Liptak goes on to say that the film, “Alpha Dog,” “flattered neither Mr. Hollywood, depicted as a dimwitted nihilist called Johnny Truelove, nor the audience.” He says, “Manohla Dargis, writing in The New York Times, said the film had ‘much the same entertainment value you get from watching monkeys fling scat at one another in a zoo.’ Now, there’s an image.

Gina F. Rubel, Esq.
Furia Rubel Communications, Inc.
http://www.furiarubel.com/

 

Is It Me?

Or does it seem that just about everyone in America is planning to retire in the next few years? If you watch television or read magazines of almost any kind, you will see constant stories about impending retirement: Are people ready for retirement; What can they do now to get ready; etc.

Of course, not everyone is retiring during the next decade. After all, there are still law firm associates. But the large cohort called the Baby Boomer Generation is approaching retirement and, just as in other times in the history of that generation, it will treat the circumstances it is facing as the most important in the nation’s history.

There are varying views as to what retirement will be like for the Baby Boomers and what effect it will have on the rest of society. Many reports in the popular media suggest a need for more saving and investing. But there have been scholarly studies suggesting that those about to retire are well prepared for it. Are they both right, or both wrong?

A study, to be published later this year in The Journal of Investing, was recently concluded by three individuals connected with Barclays Global Investors, and it provides some valuable insights on the status of retirement preparation and on the effects of changes in elements of that preparation.

The authors describe several ways of measuring the state of retirement preparation, including income replacement rates and comprehensive wealth analysis. They note several disturbing trends: the disappearance of defined benefit pension plans, the decline in personal saving rates and the large proportion of wealth represented by home equity. Not surprisingly, the result is to reduce the stability of retirement security for many people.

Given the long-term insecurity of government transfer programs and the importance of reducing dependence on home equity, the authors suggest several techniques for improving preparation for retirement. These include finding ways, such as automatic enrollment and default contribution rates in retirement plans to increase retirement saving and improving the investment choices made for retirement funds through lifecycle and targeted retirement strategies. Finally, the authors stress the importance of individuals taking a more active role in improving their retirement security. This is certainly the key point: Retirement security is the individual’s responsibility and problem. It is not a societal problem, as to which the individual can expect a societal solution. It’s up to the individual to ensure a comfortable retirement, even in the face of cutbacks in government programs.

Robert H. Louis
Saul Ewing
http://www.saul.com/

PBA Backs Rate Increase for Defense Attorneys

A group of Philadelphia criminal defense attorneys for the indigent suing the city to increase their rates have gained the support of the Philadelphia Bar Association in their effort.

During the Board of Governors meeting held in April, the board endorsed increasing court appointed counsel fees because the fees remain “oppressively low,” according to the resolution.

The resolution authorized a special committee to study the issue of court appointed counsel fees and authorized Chancellor Mike Pratt to work on the issue with the committee and the bar association sections affected by the issue.

Troy H. Wilson, of Wilson & Wilson and chair of the bar association’s criminal justice section, said the unanimous passage of the resolution “made me feel good. The whole bar association understands the intricate nature” of the issue.

A group of defense attorneys who represent court-appointed clients too poor to afford their own attorneys have filed a federal lawsuit in Eastern District Court challenging the constitutionality of the fee regime as inadequate to prepare fair defenses of their clients.

Wilson hopes for a “quick and expeditious” resolution of the matter with the city. Addressing court appointed counsel fees is one of Wilson’s key goals for the criminal justice section this year.

He expects to meet with Mayor Michael Nutter in the next few weeks. “The mayor wants to address this issue, which is good to hear,” Wilson said.

Leaving the matter unaddressed can cost the city more in the long run, Wilson said, because attorneys unable to handle criminal defenses without adequate resources require the city to defend Post Conviction Relief Act matters further down the line.

The lawsuit in Stretton v. Jones contends that fees do not allow adequate representation of indigent clients because the reimbursement rates for experts are so low and because the reimbursement rates for the attorneys themselves don’t cover law practice overhead.

The lawsuit complaint also contends that the payment regime violates indigent defendants’ constitutional rights and counsel’s ethical obligations under the Rules of Professional Conduct.
The current court-appointed system pays:

• A $2,000 preparation fee for homicide, including capital, cases, as well as $400 per day for each day of trial after the first half-day.
• A $650 preparation fee for other felony cases, as well as $350 per day for each day of trial after the first half-day.
• A $350 flat rate for misdemeanor cases.
• $50 per hour in court and $40 per hour out of court for non-homicide appeals.
• $60 per hour in court and $50 per hour out of court for homicide, including capital, cases.
•  A $400 fee for felony juvenile cases and a $300 fee for non-felony juvenile cases.

The named plaintiffs in the lawsuit include attorneys Samuel C. Stretton, Mingo Stroeber, Leanne Litwin and Bruce Wolf, as well as five of Stretton’s court-appointed clients. Stretton is litigating the case.

– Amaris Elliott-Engel, Staff Reporter