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A federal judge has barred the Philadelphia District Attorney’s Office from enforcing its new policy of re-arresting suspects whose charges are dismissed by a Municipal Court judge without first obtaining an order from a Common Pleas Court judge. “The District Attorney cannot be allowed to substitute her view of probable cause for that of the judge,” U.S. District Judge Harvey Bartle III wrote in his 22-page opinion in Stewart v. Abraham that said the practice was unconstitutional. “While she or the police may make a probable cause determination without judicial approval in connection with the initial arrest and do so in the interest of public safety and legitimate law enforcement, this interest evaporates once a judge has declared that probable cause has not been established,” Bartle wrote. At the time of the initial arrest, Bartle said, police and prosecutors have the power to make decisions about probable cause on their own. “However, once the judge’s pronouncement has taken place, the situation has changed dramatically. It has changed dramatically because there is now a judicial finding that insufficient evidence exists to establish that the arrestee probably committed the crime in question,” Bartle wrote. At that point, Bartle said, the prosecutor’s power is limited. “Unless and until a judicial finding of probable cause is made thereafter by the same judge or another judge of equal or higher rank, the District Attorney and the police simply cannot re-arrest the accused on the same charge. Otherwise, the protections of the Fourth Amendment requiring a judicial determination will be rendered nugatory,” Bartle wrote. As a result, Bartle found that District Attorney Lynne Abraham’s current practice of ordering – on her own initiative and without judicial authorization – the re-arrest and detention of persons for charges which a judicial officer has previously dismissed because of a lack of probable cause “violates the fundamental protection of the Fourth Amendment of the United States Constitution against unreasonable seizures.” Bartle emphasized that his decision to enjoin the practice “does not put the District Attorney into a straitjacket. Absent new procedures which pass constitutional muster, she may follow the time-honored practice for re-arrests heretofore utilized throughout the Commonwealth.” The ruling is a victory for attorneys David Rudovsky of Kairys Rudovsky Epstein Messing & Rau and First Assistant Defender Charles A. Cunningham of the Defender Association of Philadelphia. Assistant District Attorney Emily Zimmerman argued the case for the District Attorney’s Office. Cathie Abookire, the spokeswoman for the District Attorney’s Office, said, “We disagree with Judge Bartle’s decision as a matter of law, and we will appeal.” In his opinion, Bartle outlined the criminal procedures in place both before and after the new policy took effect. Criminal defendants who are charged in a felony complaint and arrested without a warrant are taken into custody and detained until a preliminary arraignment. At the preliminary arraignment, which takes place within 24 hours after the suspect is taken into custody, a bail commissioner, who typically is not learned in the law, makes a probable cause determination and sets the conditions of pre-verdict release, Bartle noted. The suspect is then entitled to a preliminary hearing before a Philadelphia Municipal Court judge, who determines whether the commonwealth can make out a “prima facie case” for the charges. If the judge finds that the prosecution has met its burden on a felony charge, the judge will hold the case for trial in the Court of Common Pleas. If the judge dismisses the felony charges due to lack of evidence or lack of prosecution and only misdemeanor charges remain, the case will be heard in the Municipal Court. Under the rules of criminal procedure in effect prior to Jan. 1, 2000, if the Municipal Court judge dismissed some or all of the criminal charges due to lack of evidence or lack of prosecution, the commonwealth could seek to re-arrest the suspect by submitting a new criminal complaint and an affidavit of probable cause to a judge of the Court of Common Pleas. Only if the court approved the submission and issued a warrant could the suspect be re-arrested. A new preliminary hearing would then be scheduled. But on Jan. 1, 2000, the current Rule 143 of the Pennsylvania Rules of Criminal Procedure went into effect. The rule provides that “when charges are dismissed or withdrawn at, or prior to, a preliminary hearing, the attorney for the commonwealth may reinstitute the charges by approving, in writing, the refiling of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.” Following the refiling of such a complaint, if the prosecutor determines that the preliminary hearing should be conducted by a different issuing authority, he or she files a Rule 23 motion with the clerk of courts requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. Beginning on April 17, 2000, Bartle said the Philadelphia District Attorney “has ordered suspects re-arrested pursuant to a new procedure, purportedly authorized by the new Rule 143.” Now, when charges are dismissed by a Municipal Court judge, the District Attorney on her own initiative has refiled charges and had suspects re-arrested and taken into custody until a new preliminary arraignment occurs on the refiled charges, Bartle said. Zimmerman urged Bartle to dismiss the suit on abstention grounds, arguing that such a federal challenge is disfavored under the U.S. Supreme Court’s 1971 decision in Younger v. Harris. In Younger, the justices said that “a federal lawsuit to stop a prosecution in a state court is a serious matter.” Underscoring the importance of federalism and comity, the court held that “the possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good-faith attempts to enforce it.” Bartle found that Younger “stands for the proposition that the federal courts may not enjoin or interfere with a pending state criminal prosecution absent ‘bad faith, harassment, or any other unusual circumstance,’ even though the accused will have to face the rigors of a state trial in order to raise his or her federal constitutional claim.” But since Younger, Bartle said, the Supreme Court has decided Gerstein v. Pugh, a civil rights suit in which the plaintiffs were defendants in state criminal proceedings in Florida who either had insufficient means to make bail or were denied bail and were being held in jail awaiting trial pursuant to the prosecutor’s information. The Gerstein plaintiffs said they had no right to a pretrial hearing to determine the existence of probable cause for detention except under a special statute, but a hearing pursuant to that statute was often delayed a month or more after arrest. In holding the Florida procedure unconstitutional, Bartle said, the Supreme Court declared that the state “must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” Like Zimmerman, the defendants in Gerstein argued that the federal court should abstain under Younger, but the Supreme Court rejected the argument, saying “the injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.” Zimmerman insisted that an injunction barring the new re-arrest policy would seriously interfere with the state criminal proceedings. She distinguished Gerstein on the ground that the plaintiffs there had no remedy to challenge their illegal pretrial detention under Florida law while in Pennsylvania an accused can always mount such a challenge through a writ of habeas corpus. Bartle disagreed, saying, “The facts in Gerstein are not quite as the District Attorney suggests. The Supreme Court never said that the plaintiffs there had no remedy in the state courts. While the accuseds had no right to a prompt probable cause hearing, the Supreme Court did not conclude that habeas corpus was completely foreclosed under Florida law or that Florida would not have allowed an accused to bring a separate action in its state courts challenging on constitutional grounds the lack of such a hearing.” The Gerstein court, he said, did not base its decision on the lack of remedies or on the existence of only narrowly prescribed remedies in the state court. “Instead, the court focused on the fact that the federal courts were not interfering with a state criminal trial and thus the imperatives of comity and federalism were not implicated,” Bartle wrote. Likewise, Bartle said, “any decision by this court to grant injunctive relief would not be directed at the state prosecution as such. The Commonwealth would not be prejudiced in the conduct of any trial … on the merits.” Rudovsky conceded that suspects subjected to the re-arrest policy have a habeas corpus remedy in the state courts but insisted that they also have a federal remedy under Section 1983 and are entitled to vindicate their federal constitutional right to be free from an unreasonable seizure in a federal court. Bartle agreed, saying that Rudovsky “reminds us that we have an unflagging duty to exercise our jurisdiction. … Plaintiff’s position is persuasive.” In another significant victory for the plaintiffs, Bartle agreed to certify the case as a class action. “It has been stipulated that for the 68-day period from April 17 through June 23, 2000, 67 people were subjected to re-arrest after the Municipal Court discharged their cases. The number can only increase as time passes. We are convinced that the joinder of all class members would be impracticable and therefore that the numerosity requirement of Rule 23(a) has been met,” Bartle wrote. “Clearly the District Attorney has acted on grounds generally applicable to the class members by ordering their re-arrest and detention after a Municipal Court judge has dismissed the charges for failure of the Commonwealth to meet its evidentiary burden to hold them for trial. Moreover, plaintiff seeks declaratory and injunctive relief only, which would benefit the entire class as a whole.” Zimmerman argued that it is always constitutional to detain a person for a short period of time prior to a probable cause hearing. For constitutional purposes, she said, a re-arrest should be treated the same as an initial arrest. Bartle rephrased the argument, saying “in other words, in her view, so long as a timely probable cause hearing is held after the re-arrest, no constitutional infirmity exists. We disagree.” The rationale of the Fourth Amendment, Bartle said, is to “protect persons against unreasonable seizures, that is, against arbitrary arrests.” In practice, he said, the Fourth Amendment narrowly limits the power of the police or prosecutors “to hold someone for a crime unless a judicial officer, who is not an arm of law enforcement, finds under the evidence presented that the accused probably committed the crime in issue. Unless this important threshold is met, a person’s liberty should not be infringed, and he or she should not be forced to suffer the duress and ignominy of detention or a trial.”

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