My boyfriend has a case in Philly, but he is in custody in North Hampton County and he never gets brought down for his preliminary hearing. His lawyer is a fighter, the case is marked must be tried, but the judge just won't throw out the case. Why hasn't the case been tossed?
At a preliminary hearing in Philadelphia, when the defendant is not in local custody, the district attorney is required to file a writ to have the defendant brought down to Philadelphia for the preliminary hearing. The city then reviews the writ and determines how many beds they have and how many writs have been prepared. The city then turns down a certain amount of writs so the defendant is never brought down to Philadelphia.
The DA in the courtroom for the preliminary hearing argues that they prepared a writ but the city turned down the writ, so it isn't their fault so the case should not be discharged. Often times judges will give a Philly DA five or more attempts to get the defendant brought down.
The term must be tried is a legal fiction. As far as I know, must be tried does not really exist anywhere other than Philadelphia. Must be tried is simply a signal to both sides that they better both be ready at the next listing; it has no legal teeth. Accordingly, if the defendant is not brought down, and both the DA and the defense lawyer are ready, the judge will not throw out the case.
Eventually, the judge will get tired of this and will throw it out. My experience is that it takes about six months of not brought downs for a judge to toss it on those grounds. Good Luck.
Labels: must be tried, not brought down, philadelphia, preliminary hearing