Mimesis Law
18 February 2019

Frank Fina Got Sanctioned: Who Cares?

May 26, 2016 (Mimesis Law) — Earlier this week, a Philadelphia judge sanctioned the District Attorney’s Office for failing to abide by his order to surrender cellphones in a civil suit. Though Judge Bernstein has yet to set the amount of his penalty, the prosecutors are not concerned:

“It doesn’t matter, we are going to appeal anyway,” said Assistant District Attorney Frank Fina.

Most attorneys are at least bothered by sanctions. Even when they don’t agree, they are concerned about having to surrender their hard-earned money, if not their reputation, to the court. If you work for the government, at least if you’re Assistant District Attorney Frank Fina, you don’t care so much.

Following a catastrophic building collapse, the District Attorney acquired three cellphones from police who executed search warrants. Civil lawyers now want access to those phones in an effort to address, or perhaps mitigate, civil liability for the deaths, injuries, and damages.

At issue are three cellphones that lawyers for real estate investor Richard Basciano and for the Salvation Army say could hold evidence absolving their clients of liability in the June 5 collapse, which killed six people and injured 13 in a Salvation Army thrift store at 22nd and Market Streets.

The District Attorney’s Office maintains that grand jury secrecy prevents them from surrendering the phones.

In the wake of the collapse, an investigative grand jury was impaneled.* Following the investigation, only two people were criminally charged and convicted in the collapse:

Campbell, [the demolition contractor] of Hunting Park, was convicted of six counts of involuntary manslaughter and related crimes, and sentenced in January to 15 to 30 years in prison.

Benschop, of North Philadelphia, pleaded guilty to six counts of involuntary manslaughter and testified for prosecutors at Campbell’s trial. He is serving 71/2 to 15 years.

In reaching his decision to impose sanctions, Judge Bernstein agreed the law protected testimony given before the grand jury and any evidence subpoenaed and received by the grand jury. Yet, the civil lawyers have argued the prosecutor obtained the phones from police immediately after the collapse and before the grand jury was impaneled.

Matters occurring before the grand jury are secret.** It’s clear that participants in the grand jury investigative process are bound by secrecy and cannot disclose information relating to the grand jury investigation. It’s also clear that the prosecutor is a participant in the investigation and would be bound.

Grand jury secrecy can be important, even necessary. Historically, the purposes behind secrecy are:

(1) To prevent the escape of those whose indictment may be contemplated;

(2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors;

(3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it;

(4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes;

(5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

Without secrecy, targets of investigations could flee, they could attempt to influence grand jurors, tamper with witnesses, or otherwise derail investigations. And, that makes sense.

However, where those purposes are no longer at issue, what necessitates the continued secrecy? Here, two targets of the investigation have already been prosecuted, convicted, and sentenced. Presumably, any innocent target would not be revealed via information from the phones. There is no known continuing investigation that could be impeded. And, more importantly, these phones didn’t even come from or through the grand jury investigation.

It’s certainly not clear why the prosecutor believes evidence obtained outside the grand jury process would be protected:

Bernstein called the prosecution’s interpretation of the law “an extreme position.” Moreover, he said, the cellphones were obtained by prosecutors right after the collapse through judicially approved search warrants, not a grand jury subpoena.

An extreme position and a nonchalant attitude: why? Is it prosecutorial arrogance? Is it disdain for this judge and his order? Prosecutors simply had no answer for the judge.

Bernstein pressed Fina to say if the cellphones were used in the grand jury.

“I don’t know how I can answer that,” Fina replied.

“Then the motion is granted,” Bernstein said.

It’s unclear why Bernstein was even concerned about whether or not the cellphones were used in the grand jury, since they were not obtained by the grand jury. Nothing gleamed from their contents would have been derived by the grand jury. Surely the grand jurors didn’t create the contents or even analyze the phones for content. That would have taken place outside the grand jury and pursuant to the search warrants. Any discussion that would have ensued within the grand jury about the phones and evidence is not being requested or ordered revealed. Thus, matters occurring before the grand jury are still secret.

It’s only the physical phones, which have nothing to do with grand jury secrecy, that are being requested and ordered surrendered.

Yet, none of this matters in the prosecutor’s eyes as they will appeal anyway. Must be nice to be able to flaunt court orders and their sanctions.

 

*42 Pa.C.S.A. §§ 4541 – 4553

**42 Pa.C.S.A. §4549(b)

2 Comments on this post.

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  • Jay
    26 May 2016 at 10:18 am - Reply

    Actually if you pay the sanction you can’t appeal. You’ll render the issue moot. They’ll get a stay.

    • JoAnne Musick
      26 May 2016 at 12:16 pm - Reply

      While true, I still find it odd that the ADA has little concern over it. After all, it’s more likely that taxpayers will have to foot the bill for the appeal and possibly even the sanction if sustained. There were better ways to handle the situation. The prosecutor could have sought permission from the impaneling court to release information under a protective order. But again, that assumes the phones are being properly withheld in the first place. Having been received outside the grand jury process, there is no way grand jury secrecy covers this – which, of course, makes the appeal less likely to prevail