DEFENDER ASSOCIATION OF PHILADELPHIA
BY:
ELLEN T. GREENLEE, Defender, and
Marc Bookman and Karl Schwartz, Assistant Defenders
Identification No. 00001
1441 Sansom Street
Philadelphia, PA 19102
(215) 568-3190
Attorneys for Mustafa Ali
COMMONWEALTH OF PENNSYLVANIA
:
COURT OF COMMON PLEAS
CRIMINAL TRIAL DIVISION
VS.
:
CP-51-CR-0000683-2008
MUSTAFA ALI
:
CHARGE: MURDER, ETC.
ORDER
And now, this
day of
2009, Defendant’s Motions in limine
are hereby GRANTED/DENIED.
By The Court:
_________________
J.
DEFENDER ASSOCIATION OF PHILADELPHIA
BY:
ELLEN T. GREENLEE, Defender, and
Marc Bookman and Karl Schwartz, Assistant Defenders
Identification No. 00001
1441 Sansom Street
Philadelphia, PA 19102
(215) 568-3190
Attorneys for Mustafa Ali
COMMONWEALTH OF PENNSYLVANIA
:
COURT OF COMMON PLEAS
CRIMINAL TRIAL DIVISION
VS.
:
CP-51-CR-0000683-2008
MUSTAFA ALI
:
CHARGE: MURDER, ETC.
Motions in Limine
Defendant, by his attorneys, Karl Schwartz and Marc Bookman,
Assistant Defenders, and with them, Ellen T. Greenlee, Defender,
respectfully asks this Court to grant the following relief;
I. THE PRESENCE OF UNIFORMED POLICE OFFICERS, UNCONNECTED TO THE
INSTANT CASE, WILL CREATE A RISK OF JURY INTIMIDATION, AND THUS
FOSTER ACTUAL AND INHERENT PREJUDICE TO DEFENDANT IN VIOLATION OF
HIS RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO BE FREE FROM CRUEL
AND/OR UNUSUAL PUNISHMENT, UNDER THE PENNSYLVANIA AND UNITED
STATES CONSTITUTIONS
1. In the instant case, the two decedents are retired
Philadelphia Police Officers. If past history in this jurisdiction
is a reliable indicator, it is likely that on each trial day,
numerous uniformed Philadelphia Police Officers who have no
connection to the instant case, would otherwise seek entry into
the courtroom gallery.
Allowing uniformed officers, unconnected
to the instant case, to sit in the gallery during the trial is
impermissible both constitutionally and pursuant to Philadelphia
Police Department Directive;
2. In Woods v. Dugger, 923 F.2d 1454 (11th Cir. 1991), the
Court reversed a death sentence, finding that the large number of
uniformed officers – in that case correctional officers - present
in the courtroom gallery during the defendant’s trial was
inherently prejudicial to the defendant. In doing so, the Court
noted that the "[t]he officers in this case were there for one
reason: they hoped to show solidarity with the killed
correctional officer. In part, it appears that they wanted to
communicate a message to the jury.”
Id. at 1459.
3. The parallels between Woods and the instant case are
substantial.
In Woods there was extensive pre-trial publicity;
the instant case dominated Philadelphia news outlets for several
days, and has repeatedly been re-raised in the Philadelphia media
over the past two years.
In Woods many members of the community
(and thus potential jurors) were affiliated with, or knew
individuals connected to the locality’s correctional facility;
the overwhelming likelihood in the instant case is that an even
greater percentage of Philadelphia residents have some connection
to the Philadelphia Police Department.
In Woods the prosecution
argued – as it is expected to argue here - that the evidence of
the defendant’s guilt was so overwhelming that any prejudice
caused by the officers’ presence was harmless;
4. The Woods Court, however, rejected any harmlessness
analysis, citing to Satterwhite v. Texas, 486 US 249 (1988) for
the proposition that the right to a fair trial is so fundamental
to our notion of due process that violation of that right can
never be deemed “harmless.”
Id. at 1460. For this reason, if
there is error due to a gallery filled with uniformed police
officers, then it is error mandating reversal;
5. The Court also cited to Holbrook v. Flynn, 475 US 560
(1986), when the United States Supreme Court foreshadowed the
Woods result stating "we do not minimize the threat that a
roomful of uniformed and armed policemen might pose to a
defendant's chances of receiving a fair trial." Id. at 570.
Although the defendant did not prevail in Holbrook, as that case
dealt with the issue of officers present in the Courtroom for
security purposes, the Court’s language clearly envisioned a
different result when the officers’ presence serves no court
purpose;
6. When apprised by defense counsel of likely prejudice to
the defendant as a result of the apparel, signs, or activities of
members of the courtroom gallery, trial courts avoid prejudicial
error by taking pre-emptive action.
See e.g., United States v.
Brodkins, 2005 Dist. LEXIS 8747 (W.D.V.A. 2007).
7. Defendant requests that this Court take such pre-emptive
action and bar all unformed police officers from the gallery
during the trial in the instant case;
8.
"[D]ue process requires a trial court to safeguard
against intrusion of factors into the trial process that would
tend to subvert its purpose." Estes v. Texas, 381 US 532, 560
(Warren, C. J., concurring).
In Estes the intrusion was from the
media in the courtroom, but the analysis applies to the instant
case.
Moreover, like the courts in Woods and Satterwhite, the
Supreme Court in Estes did not require a finding of actual
prejudice; the inherent prejudice of potential influence on the
jury, beyond the actual evidence, warranted reversal;
9. All doubt in this regard, especially in a capital case,
must be resolved in favor of the defendant. “The Sixth Amendment
imposes upon trial courts an affirmative obligation to minimize
any risk of unacceptable factors affecting the accused’s right to
have a fair trial.” Shootes v. State, (Fla. Court of Appeal, 1st
District) 34 Fla. L. Weekly D 2157, at 8.
10.
Shootes, a case decided just last month, involved a
trial in a police shooting in which a number of officers were
present in the gallery in uniform.
In reversing the conviction,
the Court held that “[t]he appearance of the considerable number
of JSO [(Jacksonville Sheriff’s Office)] officers in various
modes of official Sheriff's Office attire presented an
unacceptable risk of impermissible factors coming into play.”
Id. at 10.
This Court, like the others cited supra, did not
require a showing of actual prejudice; the mere specter of undue
influence was sufficient;
11.
Thus pursuant to Defendant’s right to a fair trial, to
due process and to be free from cruel and unusual punishment
under the United States and Pennsylvania Constitutions, this
Court should bar uniformed police officers from the courtroom
gallery during his trial.
If the Court denies this requests,
then defense counsel respectfully requests that the Court
periodically throughout the trial, document by photograph, the
courtroom gallery.
In Woods although the trial court erred in
allowing officers in uniform in the gallery, it had the foresight
to photograph the gallery to insure a reviewable record on
appeal;
12. Such a ruling would be supported by the Police
Department’s own Directive Number 37. Section X of the Directive
states: “Police Officers will not appear at any non-duty related
court appearance in uniform.
Uniforms are restricted to duty
related court appearances only;”
13. Pursuant to Section X, just as a Police Officer would be
prohibited from appearing in the gallery in uniform alongside the
family of a defendant (to show solidarity with the defendant), so
would he be prohibited from appearing in the gallery in uniform
to show solidarity with a victim;
14. In view of the Directive, a Departmental decision to
allow its members to appear in the courtroom in uniform, in
violation of the Directive, would constitute state action. Such
state action could only be undertaken in bad faith, and in an
attempt to deny Defendant a fair trial; thus, pursuant to the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution and the corollary provisions of the
Pennsylvania Constitution, as well as 42 Pa.C.S. 9711, Defendant
requests that this Court bar the presence of uniformed police
officers in the gallery during the trial of the instant case.
Respectfully Submitted:
Karl Schwartz
Marc Bookman
Assistant Defenders