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 Legal Updates Pre-trial Omnibus Motion word doc version Filed by the Public Defenders on Oct. 6, 2000. 1. MOTION FOR A BILL OF PARTICULARS Petitioner received partial discovery from the Commonwealth on either September 16, 23 or 30, 2000. The discovery is substantially incomplete and fails to provide with sufficient specificity, information regarding the circumstances of arrest and the allegations against Petitioner. The discovery is boilerplate in nature. Petitioner hereby requests this Honorable Court to compel the Commonwealth to provide the following Bill of Particulars:
2. MOTION FOR DISCOVERY The discovery Petitioner received at the pre-trial conference was inadequate and fails to address numerous issues. This Honorable Court is, therefore, requested to order the Commonwealth to provide counsel with the following:
Various search warrants involved in the arrests of individuals during the Republic National Convention refer to confidential undercover police agents who had engaged in infiltration and surveillance. In addition, the Philadelphia police department engaged in undercover surveillance and then lied about it to, for example, Philadelphia Inquirer reporters. There was substantial, secretive police operations involved in surveillance. As these undercover agents were, therefore, eyewitnesses, disclosure must be ordered pursuant to Commonwealth v. Roebuck, 545 Pa. 471, 681 A.2d 1279 (1996), Commonwealth v. Payne, 540 Pa. 54, 656 A.2d 77 (1994) and Rule 305. Further, counsel requests any statements made by these agents concerning the events they witnessed, any statements they made to their superiors, anything their superiors said to them, the orders they were given regarding their undercover/surveillance activities, any previous undercover activities they engaged in as well as the results of those activities (with defendants' names, court terms and bill numbers) and any communications between these undercover agents and the Philadelphia Police Department, the Philadelphia District Attorney's Office, the Pennsylvania State Police Department, the Pennsylvania Attorney General's Office, law enforcement entities in the state of Washington or the District or Columbia, the Federal Bureau of Investigation, the Department of Justice, the Bureau of Alcohol, Tobacco and Firearms, or any other federal, state or local law enforcement entity, 4. MOTION TO SUPPRESS Petitioner moves to suppress any physical evidence, identification evidence, or statements because such evidence was obtained in the absence of probable cause or reasonable suspicion, was obtained without a lawful waiver of rights, was obtained without a lawfully issued warrant or legal justification, the search was without a warrant or the warrant was improperly executed, statements were obtained without adequate warnings or were obtained after the exercise of the right to counsel, identification was obtained in a suggestive manner, was obtained in an unreliable manner, or all evidence was obtained after the denial of counsel. This motion is made pursuant to the 4th, 5th, 6th and 14th Amendments to the United States Constitution and the parallel and independent provisions of the Pennsylvania Constitution including but not limited to Art.I, Sec.8. 5. MOTION TO DISMISS OBSTRUCTING THE ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION (§5101), RESISTING ARREST (§5104) AND RECKLESSLY ENDANGERING (§2705) Petitioner hereby moves for the dismissal of the charge of obstructing the administration of law or other government function (§5101), resisting arrest (§5104) and recklessly endangering another person (§2705). The Commonwealth's basis for charging under these sections is Petitioner's alleged refusal to co-operate with the police in providing biographical information including name or going limp when arrested. Such action does not fall within the scope of §5101, §5104 or §2705. In Commonwealth v. Shelly, 703 A.2d 499 (Pa.Super. 1997), the defendant gave a false name to the police at the time of his arrest. The Court held that such conduct was not unlawful: We find no statute that criminalizes "merely lying" in response to police questioning, and section 5101 does not fill this gap. If giving a false name to the police is to become an offense, it is for our legislature to say so with specificity.Id. at 504. Here, the Petitioner did not even lie to the police but rather remained silent. Such activity is not illegal and any charge so alleging must be dismissed. The Superior Court rejected in Commonwealth v. Rainey, 285 Pa.Super. 75, 426 A.2d 1148 (1981) the conclusion that resisting arrest could occur in the instant situation. The same analysis would apply to the recklessly endangering another person charge. 6. MOTION TO DISMISS POSSESSION OF INSTRUMENT OF CRIME (§907) Petitioner hereby moves for the dismissal of the charge of possession of an instrument of crime (§907). The Commonwealth alleges that the basis for this charge is Petitioner's alleged possession of non-criminal instruments, e.g., chicken wire, pvc pipe, concrete, rope, chain or even a cell phone. The possession of such instruments are not commonly used in criminal activity nor were they specially adapted for criminal use. To the extent that the PIC statute might encompass such common household items, the PIC statute is unconstitutionally overbroad and prosecution under such a statute would be a denial of due process under the Pennsylvania and United States Constitutions. 7. MOTION TO DISMISS BECAUSE OF OUTRAGEOUS POLICE CONDUCT The search warrants involved in arrests made during the Republican National Convention allege the existence of numerous undercover police agents that had infiltrated, for example, groups of people making puppets at 4100 Haverford. Upon information and belief, counsel has learned that these alleged police infiltrators encouraged others to engage in illegal activity, facilitated others in engaging in allegedly illegal activity and may have even engaged in illegal activity themselves. By encouraging or facilitating lawless behavior, such actions by police agents would violate due process and taint the entire prosecution under both the Pennsylvania and United States Constitutions. Commonwealth v. Mance, 539 Pa. 282, 652 A.2d 299 (1995), Rochin v. California, 342 U.S. 165 (1952), United States v. Noland-Cooper, 155 F.3d 221 (3rd Cir., 1998). The request in paragraphs 2 and 3, supra, requesting discovery regarding the actions of undercover police agents is incorporated by reference for purposes of this motion to dismiss. The precise actions of the police agents will be highly relevant for the Court in determining the sufficiency of the evidence to support this claim. 8. MOTION TO DISMISS BASED UPON: A. SELECTIVE PROSECUTION, B. PRIOR RESTRAINT OF FREE SPEECH, AND C. DESTRUCTION OF EXCULPATORY EVIDENCE The following motion to dismiss, resting in part upon a common factual basis, is based upon three independent grounds (selective prosecution, prior restraint of free speech, and destruction of exculpatory evidence). Rather than repeat this lengthy motion in each of the nearly 200 cases in which a Defender Association client is charged, it is being included in the instant omnibus motion and will be incorporated by reference in all other Defender Association cases. A. FACTUAL HISTORY 1. In 1999 the City of Philadelphia contracted with the Republican National Committee to host their national convention. As part of the contract the City agreed to give the Republican National Committee organizing the Convention the right of first refusal (to be exercised through July 1, 2000) to use the following public locations in which political events are traditionally conducted within Philadelphia's Center City: the Benjamin Franklin Parkway; City Hall Courtyard; Dillworth Plaza on the west side of City Hall; Head House Square; John F. Kennedy Plaza aka Love Park; Logan Square; Rittenhouse Square; the streets of Chinatown; and Washington Square. When Mr. Michael Morrill applied for a permit to use Benjamin Franklin Parkway as the cite of a protest march and demonstration on behalf of a multi-organization coalition known as Unity 2000, he was told on February 22, 2000 by Joseph Callan, an employee of Philadelphia's Fairmount Park Commission responsible for special events, that the City had agreed to reserve "all of Fairmount Park for the week preceding the Republican National Convention as well as during the week of the Convention for use only by the Republican National Party." 2. In early April the American Civil Liberties Union of Pennsylvania brought suit in Federal District Court on behalf of Unity 2000 and the Ad-Hoc Committee to Defend Health Care-Philadelphia under 42 U.S.C. §1983, alleging that: "The grant of the Omnibus Permit is designed impermissibly to ensure the City is showcased in a particular light during the Republican National Convention as well as to impermissibly protect the Republican National Party from competing ideologies in violation of Plaintiff's rights of speech and assembly." The suit was assigned to the Honorable John P. Fullam, who had issued a permanent injunction against the City in 1988 to remedy First Amendment violations by the Philadelphia Police Department against protesters during the bicentennial celebration. This injunction is attached as Exhibit "A". At the first listing of the suit, Judge Fullam suggested that the City was going to change its position. In subsequent negotiations starting the next day, permits were issued to accommodate the First Amendment rights of the Plaintiff in venues that had previously reserved for the Republican National Committee under the Omnibus Permit. 3. In preparation for demonstrations to be held during the Republican National Convention, citizens prepared puppets, floats and signs at two locations in Philadelphia: the cite of the Spiral Q Puppet Theatre, and a puppet workshop at 41st and Haverford Avenue. The use of puppets, floats and signs constitute speech, which is protected by the First Amendment and Article I, section 7 of the Pennsylvania Constitution. At both sites the City of Philadelphia took steps to restrain that speech before it could occur. 4. On information and belief, the site of the Spiral Q Puppet Theatre was infiltrated by police agents working with the City of Philadelphia. On July 20, 2000, a fire alarm went off in Spiral Q, necessitating evacuation of the building, but no fire had occurred. On the morning of July 21, 2000, undercover agents were observed taking photographs of people going in and out of the building. Later that day the Department of Licenses and Inspections sent employees who performed an inspection and shut the building down. During previous routine inspections the building had not been held in violation or sealed. In response to significant public protest, and the threat of litigation, the building was reopened. Puppets and props made at Spiral Q were subsequently used at several demonstrations. 5. The site of the Haverford puppet workshop was infiltrated by police agents working with the City of Philadelphia. Undercover officers encouraged persons present in the building to engage in unlawful acts, and themselves engaged in acts of vandalism. On August 1, 2000, in advance of protest demonstrations, Philadelphia Police Officers sealed the building and prohibited any of those present from leaving. Without a warrant, officers tried to force their way into the building, and sprayed pepperspray through the mail slot. Two hours after their arrival, officers stated they had finally obtained a search warrant. Although no specific individual was named in the warrant as having committed an illegal act, all persons, approximately seventy-five, in the building were arrested. Following the arrests, hundreds of puppets and props intended to be used in lawful demonstrations were destroyed by the police. Puppeteers personal belongings, tools and bicycles were also confiscated, and some of them destroyed. On August 2, 2000, a small puppet show in a public park was surrounded, disrupted and searched. Nothing unlawful was found. 6. One of the demands raised by Petitioners and other protesters during the Republican National Convention was for a moratorium on the death penalty in Pennsylvania and a new trial for death row prisoner Mumia Abu Jamal. The animosity of the Philadelphia Police against protesters on this issue is longstanding. The following incidents not only illustrate that animosity, but demonstrate that members of the Philadelphia Police Department were never arrested and prosecuted for committing acts of which the Petitioners have now been accused:
B. PRIOR RESTRAINT 8. Having reversed the conviction of demonstrators arrested for protesting outside a private college building in which the director the Federal Bureau of Investigation was speaking as part of a public symposium, the Pennsylvania Supreme Court emphasized the strong constitutional prohibition against prior restraints on free speech. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981). Focusing on Article I, section 7 of the Pennsylvania Constitution[1] and the First Amendment, the Court explained: In Goldman Theatres, Inc. v. Dana, [405 Pa. 83, 173 A.2d 59, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961)] . . . we observed that Article I, section 7, was "designed to prohibit the imposition of prior restraints upon the communication of thoughts and opinions." Id. at 88, 173 A.2d at 62. Manifestly, the purpose underlying such a prohibition is to effectuate the constitutional guarantee of freedom of expression. The observation of the Supreme Court of the United States with regard to the First Amendment to the United States Constitution applies equally to the Pennsylvania Constitution: " '[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute * * * is * * * protected against censorship or punishment .... There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.' "Cox v. Louisiana, 379 U.S. 536, 551-52, 85 S.Ct. 453, 462-63, 13 L.Ed.2d 471 (1965), quoting Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894- 96, 93 L.Ed. 1131 (1949). See Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957) ("protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people"). 495 Pa. at 170. Indeed, the Court took pains to note that "the rights of freedom of speech, assembly, and petition have been guaranteed since the first Pennsylvania Constitution, not simply as restrictions on the powers of government, as found in the Federal Constitution, but as inherent and 'invaluable' rights of man." Id. at 171. See also Art. I, sections 20 and 25. 9. The United States Supreme Court has described prior restraints on free speech as "the most serious and least tolerable infringement on First Amendment Rights." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791 (1976). For this reason, the Court has declared that prior restraint by arrest and prosecution for intended acts of symbolic speech that might be punishable under criminal law if they were left to occur is not allowed. Thus, in Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239 (1975) the Court stated: The presumption against prior restraints is heavier–and the degree of protection broader–than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.Id. at 558-59. Based upon this settled principle, the United States Supreme Court had reversed the conviction of Rev. Fred L. Shuttlesworth, who was arrested and convicted for leading a march through the City of Birmingham, Alabama, which the City had deemed to pose a threat to "the public welfare, peace, safety, health, decency, good order, morals or convenience." Shuttlesworth v. Birmingham, 394 U.S. 147, 149, 89 S.Ct. 935 (1969). Although Rev. Shuttlesworth might have been lawfully prosecuted if he had been left to commit an act of disorderly conduct or obstruction, he could not be arrested and subject to a prior restraint on activity that fell within the shadow of the First Amendment. 10. The actions of the City in cooperating with the infiltration of the Haverford puppet workshop and other acts of infiltration, and in seizing the puppet workshop, arresting all of its occupants, and destroying the media prepared for their expressive activity was an impermissible act of prior restraint. 11. It is no defense to the charge of prior restraint that some persons present had prepared and taken steps to engage in acts of civil disobedience. Citing United States Supreme Court caselaw, the Third Circuit Court of Appeals has declared that: When the group activity out of which the alleged offense develops can be described as a bifarious [or mixed] undertaking, involving both legal and illegal purposes and conduct, and is within the shadow of the first amendment, the factual issue must be judged Strictissimi juris [by the strictest of standards]. This is necessary to avoid punishing one who participates in such an undertaking and is in sympathy with its legitimate aims, but does not intend to accomplish them by unlawful means. Specially meticulous inquiry ... is justified and required because of the real possibility in considering group activity, characteristic of political or social movements, of an unfair imputation of the intent or acts of some participants to all others. United States v. Cerilli, 603 F.2d 415, 422 (3rd Cir. 1979)(bracketed material added). Here the police swept up all of those present at the Haverford facility in an act of prior restraint, without attempting to make any distinction between persons who might have some future intent to engage in civil disobedience, and those who were merely present to support and engage in lawful First Amendment activity. The sweep was similarly overbroad in other arrests. Where, as here, the prior restraint even of persons who intend to engage in expressive acts of civil disobedience is impermissible under the First Amendment and Article I, section 7, the prior restraint of puppeteers who are "in sympathy with [the] legitimate aims [of protesters and do] not intend to accomplish them by unlawful means" is even more repugnant to free speech. Id. at 422. The charges should be dismissed against all those arrested at the Haverford facility and others who were similarly swept up in overbroad arrests. C. SELECTIVE PROSECUTION 12. The courts have recognized that the Fourteenth Amendment, and Article 26 of the Pennsylvania Constitution, provide a remedy of dismissal for defendants who have been subject to prosecution as a result of the violation of their rights to equal protection of the law. See, e.g. United States v. Oaks, 508 F.2d 1403, (9th Cir., 1974); United States v. Berrios, 501 F.2d 1207 (2nd Cir., 1974); United States v. Berrigan, 482 F.2d 171 (3rd Cir., 1973); United States v. Falk, 479 F.2d 616 (7th Cir., 1973); United States v. Steele, 461 F.2d 1148 (9th Cir., 1972); United States v. Crowthers, 456 F.2d 1074 (4th Cir., 1972); Commonwealth v. Butler, 529 Pa. 7, 601 A.2d 268 (1991); Commonwealth v. Lewis, 443 Pa. 305, 310-311 (1971). In the seminal case the Supreme Court stated: [T]hough the law itself be fair on its face, and impartial in appliance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.Yick Wo v. Hopkins, 118 U.S. 355, 374 (1886). 13. The Pennsylvania Supreme Court has held that where a defendant has properly raised a claim of selective prosecution, "[d]efense counsel should [be] permitted to create a record to support this claim in the nature of a motion to dismiss." Commonwealth v. Butler, supra at 14. The Court has described the legal standard for establishing selective prosecution as follows: [F]irst, other similarly situated were not prosecuted for similar conduct, and second, the Commonwealth's discriminatory selection of them for prosecution was based on impermissible grounds such as race, religion, the exercise of some constitutional right, or any other such arbitrary classification.Commonwealth v. Mulholland, 549 Pa. 634, 649, 702 A.2d 1027, 1034 (1997). 14. The defense of selective prosecution need not involve a claim that the prosecutor has impermissibly exercised her discretion. Thus, the Pennsylvania Supreme Court has stated: The Equal Protection Clause in the United States Constitution is directed at every form of state action: legislative, executive and judicial. It not only proscribes the enactment of discriminatory laws, but also the discriminatory enforcement of laws which are fair on their face. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064 (1886). While some courts have ruled that the Equal Protection Clause does not apply to the enforcement of state criminal laws, we are compelled to a different conclusion. In our view, discriminatory enforcement of the criminal laws is constitutionally prohibited if the discrimination is purposeful or intentional.Commonwealth v. Lewis, 443 Pa. at 310-311 (citations, footnotes omitted). 15. The United States Supreme Court has held that Petitioners raising a selective prosecution claim have a right to obtain relevant discovery from the government if they meet the threshold requirement of making "a credible showing of different treatment of similarly situated persons." United States v. Armstrong, 517 U.S. 456, 470, 116 S.Ct. 1480 (1996). 16. Here it is the executive branches of our City and State governments that have taken every conceivable step to welcome and accommodate the expressive activity of the Republican National Committee and its invitees, while photographing, infiltrating, intimidating, subjecting to prior restraint, and refusing permits to those persons who decided to take this very public opportunity to speak on various controversial issues, criticize "the official conduct of officers or men in public capacity," and "petition the government for redress of grievances." PA Const. art. I, § 7; U.S. Const. amend I. The disruptive, spontaneous revelries of Mummers have been tolerated -- even encouraged -- while the equivalent activities of political protesters have been suppressed. Police who have engaged in unlawful acts of obstruction during their own protests, and have made death threats against persons expressing conflicting political views, have not been subject to arrest or prosecution. The Petitioners should be granted discovery on their claim of selective prosecution, an evidentiary hearing should be held, and the arrest and prosecution of Petitioners (which constitutes an act of prior restraint) should be dismissed under the doctrine of selective prosecution. D. DESTRUCTION OF EXCULPATORY EVIDENCE 17. In Commonwealth v. Deans, 530 Pa. 514, 610 S.2d 32 (1992) the Court reversed a conviction for forgery where a lottery ticket examined by the police was subsequently lost, before the defense was able to examine the writing. In the instant case the police examined the contents of the puppet workshop at 41st and Haverford, and then (in an act of prior restraint) destroyed the puppets and props which the Petitioners claim is exculpatory, while preserving only that evidence which the police claim is inculpatory. 18. The Court in Deans described two bases upon which a defendant may obtain a dismissal for the destruction or loss of exculpatory evidence – both are applicable to the instant case. First, the Court cites Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337 (1988), for the proposition that a defendant is entitled to a dismissal based upon violation of due process if he can prove that the state acted in bad faith when it "failed to preserve potentially useful evidence 'of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.'" Id., 530 Pa. at 518. Here the destroyed evidence is clearly exculpatory. It is the media with which numerous Petitioners intended to engage in lawful protest, and the production of that media constituted the purpose for their being present at the Haverford facility. Had it been preserved, they could have pointed to the media and testified to the judge or jury that "this is what I was building at the workshop, and this is what I intended to use in lawful protests." Because the puppets and props were clearly exculpatory, because they embodied expressive content inimical to the biases of the police, and because there was no reason to destroy this private property, it is evident that the police acted in "bad faith" when they "trashed" this evidence. 19. Second, the Court in Deans explained bad faith need not be shown in a case such as this, where the state intends to testify about the contents of the Haverford facility with the support of inculpatory objects it has intentionally preserved, but has destroyed the potentially exculpatory contents before they could be used by the defense. Thus, the Court explained: It is one thing to conduct a trial in which neither side has evidence because the prosecution failed to take affirmative steps to preserve it, and it is quite another to conduct a trial in which the prosecution has evidence but the defense does not because the prosecution lost it. In the former, Youngblood, situation, due process is not violated unless there was bad faith by the prosecution; in the latter, Deans, situation, to permit the prosecution to use the evidence would deprive appellant of due process irrespective of good faith or bad faith on the part of the prosecution. 530 Pa. at 518. In Deans the evidence was "lost." In the instant case the evidence was destroyed. WHEREFORE, for all of these reasons set forth above, Petitioners, by their counsel, respectfully request that the relief requested in this Omnibus Motion be granted and that, in the alternative, they be given an opportunity to present evidence to substantiate the above factual allegations in Motion 8, supra and support their claims, and that based upon said proof, and the rights to which they are entitled under the First and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 2, 20, 25 and 26 of the Pennsylvania Constitution, all charges be dismissed. Respectfully submitted, ________________________ SHAWN NOLAN Assistant Defender MARGARET FLORES, Assistant Defender, BRADLEY S. BRIDGE, Assistant Defender, KARL BAKER Deputy Chief Appeals, and ELLEN T. GREENLEE, Defender Defender Attorneys for Petitioner [1] "The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty...." Art. I, § 7. |
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