Florida Criminal Defense and DUI Defense Blog

24Aug, 21

Once in a while, I like to take my show on the road. In fact, today, I’m going to talk about one of the cases I took on the road, all the way to Pennsylvania.

I’m joined by my good friend Beth Tibbott, who was kind enough to bring me in on a case with her in Pennsylvania a few years ago.

MK: Remind me how I came to be involved as a lawyer in Pennsylvania.

BT: I had a murder case, and there were quite a few interesting issues on this murder case. I believe you and I ended up talking about it, and we were kind of hashing it out; I had called you for some advice. And we ended up with, “Hey, you know what would be really awesome? Why don’t you come up here to Pennsylvania? I know you love Pittsburgh. I will pro hac you in, and you can help me with this murder case.”

MK: Since not everybody reading this is a lawyer, let’s talk about what “pro hac” means.

BT: When you would like some assistance from another attorney who is not barred in your state, you can actually ask the court for permission to let that attorney serve as co-counsel on a particular case.

MK: For one case only.

BT: One case only. And that’s what we did here.

MK: And the legal term we use for that is “pro hac vice” which probably doesn’t mean “for one case only” but that’s what we’re going to say it means because it’s been a long time since Latin class.

BT: Yes, practically speaking, that’s what it means.

MK: And the reason that there is this procedure is because courts’ judges have kind of a supervisory role over what happens in their courtroom, and they don’t want to let just any lawyer from anywhere come into court, especially not on an important case.

MK: I like to reminder people that this is how Vincent LaGuardia Gambini, on My Cousin Vinny, got to represent his cousin, The Karate Kid, on that murder case in Alabama. The procedure on that movie was that the out-of-state lawyer had to actually  sit down with the judge and talk to him and get the judge’s permission. I don’t remember doing that with you on this murder case.

BT: No, it’s a little bit different than that. The attorney that’s requesting permission for the other attorney to practice on that case has to actually write a motion, attach a whole bunch of information, including things like your standing in the Florida Bar (that you were in good standing), all the information about the case that we are requesting your help on, and a bunch of other supporting documentation. And then, in addition to that, I had to verify that I would be there for all the court hearings, that I would sign all the documents, that I would look over all the documents, and basically make sure that you weren’t coming in and causing a riot, and that I would be responsible if you decided to do that.

MK: Exactly. I had to file an affidavit, a sworn statement, that basically said I’m a real live criminal lawyer. I’m admitted to practice in Florida and in Federal court. And I try to wear matching shoes whenever I can and I know how the necktie goes in the front.

MK: And you had to verify for the judge, if I remember right, that you weren’t just sponsoring me and handing over the case and walking away, that I was going to be working on the case with you.

BT: Yes, and I had the ultimate responsibility. If something happened, it would be my fault.

MK: You were to be blamed if I refused to follow Pennsylvania law and procedure.

BT: That’s exactly right.

MK: You’re a very brave woman.

BT: I take risks, you know. It’s what I do.

MK: So, what do you remember about that murder case?

BT: That was an interesting case. By the time you came in on that case, I think our client had been in jail for the better part of nine months before we even got a preliminary hearing, which in Pennsylvania is the first stage of proceedings we have. A preliminary arraignment, which is what sets bond, and, of course, in a murder case there was no bond able to be set for our friend. So, he had been sitting, sitting, sitting.

BT: So, I was hired on the case. He’d already been in for probably seven months. I was hired on the case and then we had a preliminary hearing, which happens in front of a magistrate judge. Here [in Pennsylvania], that judge doesn’t decide if you’re guilty or innocent. They only decide whether or not the Commonwealth, or the State, has enough evidence to move forward in the case, which isn’t a very high burden.

MK: It’s sort of a probable cause standard.

BT: That’s exactly what it is. Was there maybe a crime committed and was your client maybe the person who did it? If the answer is “yes”, that magistrate judge is going to say, “Okay, I’m going to bind this over to the higher court.” And so that’s where we were when you came in.

MK: Now, if I remember right, the Commonwealth of Pennsylvania doesn’t require prosecutors to turn over discovery materials until after the prelim, unless the defense waives the prelim.

BT: Yes, that’s exactly right. And that’s because the standard is so low there, and we’re not determining guilt or innocence, so they think that we don’t need to have any of the discovery information, yet.

MK: If I remember right, the prosecutor, whose name escapes me (but I remember his name was the same as an all-time Steelers great and when he introduced himself to me he said, “No relation.”).

BT: Right, no relation.

MK: When you and I started talking about that case, the Commonwealth kept trying to postpone the prelim so they wouldn’t have to give you discovery.

BT: They did. I think that was the reason I actually called you, and we were talking about it and going back and forth on some strategy with it because waiving a preliminary hearing is always a scary proposition, especially in murder cases, and you don’t ever want to give up your right to do that, to have that first bite at the apple, if you will, and so that’s where you and I were talking about it. We certainly didn’t want to waive it, but we didn’t want to have him spend another few months in jail.

MK: I remember I came up and we were supposed to have this hearing, and we ended up having a great pow-wow in the magistrate’s chambers because he wanted to talk with us but he wanted it off the record.

MK: It was you and me, not our client (he was in the building but he wasn’t in the judge’s chambers with us)

BT: And the D.A.

MK: A couple of prosecutors and a couple of detectives, too. And we did some trading for information in exchange for a court date.

 

BT: Yes, we sure did. And we learned a lot, didn’t we?

MK: I remember that we learned that the Commonwealth had lost a person they claimed was an eyewitness.

BT: A star witness.

MK: And we learned that the detectives had visited that star witness and interviewed him three times but only recorded two of the interviews. We figured it was the first one that they didn’t record because he wasn’t saying what they wanted, yet.

BT: And then all of a sudden we have two interviews that were recorded. And then he was gone.

MK: I remember we got to read the autopsy report, because they kept stalling and saying that the medical examiner wasn’t available for the prelim. And we said, “Give us the autopsy report and maybe we can just stipulate to it.” Which I’ve never done before or since.

BT: I wouldn’t have, for the record, done it then, either, but…

MK: We agreed on certain terms and one of them was that we were going to have a discovery hearing in front of the actual trial judge a week or so later.

BT: And I want to say that we reserved our right to challenge the sufficiency of the evidence, even though we decided to waive the preliminary hearing, which normally means that you cannot go back and say, “Hey, they don’t have enough evidence” if you waive it, and that’s one of the reasons why it’s a scary proposition to waive it, right?

MK: Right.

BT: But we did, I believe, in that case get in writing that we were not waiving our right to do the habeas corpus.

 

MK: That’s how I remember it, too. So, we were given a hearing a week or two later, and I was back in Florida, so I had to call in to the judge’s chambers.

BT: Yes, and I was there, in person, with the judge and two prosecutors. And they wanted a very long period to produce the discovery, to which, we of course politely objected.

MK: Our client got arrested about a year after this shooting and so we were almost two years later, and the Commonwealth, the prosecutors, had to know that they were going to have to turn over the discovery to somebody once they arrested him.

BT: Of course, and you’re right, it had been damn near two years.

MK: I remember saying to the judge, “We just want you to put everybody on a deadline. We’re just trying to do our job, get our case ready. This case either needs to be tried or resolved and we can’t do it without the discovery.”

BT: Exactly.

MK: I remember him asking the prosecutors how much time they said they needed, and he gave them like sixty days more than that.

BT: Yes, we asked for thirty days. The judge said that was a little bit too little, and then we ended up having it somewhere near sixty days. But I do remember the discovery deadline being right before Christmas.

MK: It was right before Christmas. I remember it was a Friday before the Steelers’ last home game of that season.

 

BT: You would remember it in Steelers timeline.

MK: I remember it that way because what ended up happening – I was planning on flying up that Friday, you were going to pick up the discovery and we were going to spend all day Saturday working on the discovery and then we were going to go to the Steelers game on Sunday. And you reached out to me at the beginning of the week because the prosecutor had told you he was not going to comply with the judge’s order.

BT: That’s right. I said, “Hey, do you have that stuff for me, Mr. Prosecutor?” And he said, “Well, you know, we’re working on it, but I don’t think I’m going to be able to have it in time.” And I said, “Well, are we going to get a wonderful Christmas present then and get a withdrawal of the case?” And he said, “Well, I don’t know about that, but I don’t think I’m going to have it on time.”

MK: Now, I remember doing something that the out-of-state lawyer can get away with, but maybe the lawyer that has to deal with these people all the time might not. I remember sending you a draft of a motion, I don’t know that we ever filed it, but it was a motion for contempt for asking the judge to hold the district attorney in contempt for not complying with the discovery order, and I think that I asked that the district attorney be sent to jail because our client was in jail.

MK: Do you remember that or did I dream that up?

BT: No, you didn’t dream that up. And I remember that, after I had a really good laugh, I thought, “This is pretty savage. I like it. Let’s do it.” I may have sent that draft to the district attorney as in, “Hey, heads up. Going to be filing this if you don’t meet our deadline.” That may have happened.

MK: I think that that produced some movement on their side.

BT: Yes, later on that week, I think it was the day of the discovery deadline, I got to call the client in jail and said, “Merry Christmas! You’re going home!”

MK: Because the prosecutors decided to dismiss the case, instead of giving us discovery.

BT: They did, and you know, that was the right thing. So, regardless of the rest of the circumstance, they did the right thing in that instance.

MK: Now I get to report that, unlike some other lawyers (present company excepted), I can make a claim that hardly anybody else can make a claim. I am undefeated in the Commonwealth of Pennsylvania. And it’s funny, this case that I’m pro hac vice in Virginia now, Virginia’s also a Commonwealth, and this is also a murder case, and I think if we manage to win this, I think the only other Commonwealth is Massachusetts. So, I’m going to have to try to get admitted there.

BT: On a murder case. You have to make it like a trifecta of homicide.

MK: I am working on that. And I am still so grateful all these years later that you let me come and play in a Pennsylvania court.

BT: And I’m grateful that you did.

MK: And you’re welcome to bring me in some other time, because they’ve probably forgotten by now.

BT: I kinda doubt it.

MK: The pro hac vice rules don’t say for once in a lifetime. It’s just one case at a time.

BT: One case at a time, yes. You are welcome back any time, my friend.

MK: Pick out a case and I’m ready to come to Pittsburgh or surrounding counties any time you ask.

You can find out more about Beth Tibbott at her law firm’s website http://www.tibbottrichardson.com

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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