But whether or not they’ve committed a crime — and whether the property seized from them was a proceed of any crime — is another question.
While Grossman points out that her assistant district attorneys will generally re-list a forfeiture case (that is, let the respondent return at a later court date) if the respondent’s criminal case is still active, the DA still files these civil cases long in advance of criminal outcomes, re-listing them without regard to the criminal case’s timeline and doing so only for those respondents who appear at each and every court date in the meantime.
As a result, the vast majority of forfeiture cases are completed long before the associated criminal cases have been resolved. Of 300 completed forfeiture cases filed in 2011 and 2012 and randomly selected by City Paper for review, CP was able to tie 180 to closed criminal cases. Of those, 81 percent resulted in findings of guilt; the rest were found not guilty, or had charges withdrawn or nolle prossed.
Those numbers, if borne out over the thousands of cases the DA pursues every year, suggest that the Philadelphia District Attorney is successfully pursuing forfeiture cases worth hundreds of thousands of dollars, against as many as a thousand or more citizens who aren’t convicted of a crime.
What’s more, this analysis confirms what CP had learned anecdotally in interviews: A much smaller — but persistent — number of forfeiture cases accompany no criminal charge at all.
These findings raise questions about whether Philadelphia’s civil forfeiture practices are being used fairly, says Vanita Gupta, an attorney for the American Civil Liberties Union who helped secure a settlement in a class-action lawsuit over forfeitures in Tenaha, Texas, where police officers were routinely stopping (mostly minority) motorists and seizing currency from them without filing any charges.
“The whole purpose of civil asset forfeiture is to make sure people are not permitted to profit from criminal activity,” says Gupta, who says the small amounts in play in many currency seizures in Philadelphia presents its own problem: “It’s one thing when you have hundreds of thousands of dollars being seized from the trunks of cars. But when police are taking such small amounts from so many people who are never charged with a crime, it raises grave questions about whether these commonplace amounts were really obtained through criminal activity.”
THROUGH THE LOOKING-GLASS
Despite long odds and often-meager amounts at stake, some respondents do fight to reclaim their property. Those who do make their case must show up, 9 o’clock sharp, at City Hall Courtroom 478, where anywhere from 40 to 80 cases — all forfeiture actions — are listed on most days.
Each has his or her own story, but this reporter observed patterns over weeks of visits to the courtroom. Of the dozen or two dozen people who show up on a given day, a few will likely be young men (usually black or Hispanic), often there to reclaim money seized from them on the street by police — usually, but not always, in connection with drug charges. Others are security guards, there to reclaim their (legal, they say) firearms, seized in a stop or arrest. It’s a surprisingly common scenario, says Narberth attorney Jonathan Goldstein, who represents people in many such cases. Others are individuals (or entire families) there to fight the threatened forfeiture of a home.
Many arrive clutching a form letter from the District Attorney’s Office that offers three salient pieces of what might be called advice. First: “Your property will not be returned at the first listing.” Second: “The forfeiture proceeding is a separate and distinct court action from any related criminal case. The outcome of one does not depend on the of the other.” And last: “You must appear for court at every listing for the forfeiture matter. Failure to do so may result in the forfeiture of your property.”
Dozens of individuals with whom this reporter spoke outside of Courtroom 478 — the legal rabbit hole through which most forfeiture actions pass — were quickly learning that this was an understatement.
In the world of civil forfeiture, the usual protections don’t apply. Indeed, respondents who arrive at Courtroom 478 for the first time not only won’t get their property back, but won’t see a judge and won’t have a chance to make their case to anyone other than one of the three or four assistant district attorneys who staff the room and, to a degree that might surprise anyone who’s spent time in a standard criminal or civil courtroom, appear to run it themselves.
As respondents wait, it is the assistant district attorneys — not court staff — who call their names and address their cases. When the room is asked to stand for the arrival of the “judge” (in fact, an administrative judge with whom respondents will have no interaction at all), the action is purely symbolic: Business is already well underway. Aside from occasional private attorneys hired by individual respondents, there is no one else in the room representing their interest.
The setup gives the DA’s Office a great deal of power, including the ability to win a case in a single listing and to re-list a case indefinitely. Those who show up to fight for the return of their property, on the other hand, face only one near-certainty: More court dates.
Those fighting a forfeiture action may be required to appear as many as a dozen times in court, over the course of months or even years, before a case reaches its conclusion. An analysis of more than 8,000 asset forfeiture cases filed in 2010 showed that the 17 percent of cases (or roughly 1,400) in which respondents appeared at least once took more than eight times as long, an average of 260 days, as first-listing judgments. Further, respondents who did fight their cases were required to come to court an average of five times before their cases were completed. More than 100 respondents were required to come to court 10 times or more — risking a default judgment against them if they failed to appear just once. By September 2012, roughly 9 percent of the cases were still listed as “active” — an average 695 days after they were filed.
To win a case often means proving that the money in question was not ill gotten — not always a simple proposition, as Andre Rogers found. After waiting about two hours to speak with an assistant district attorney at his case’s first listing, Rogers left the courtroom, shaking his head slowly.
“They said I have to come back, at the next date, or else I forfeit my money,” he reported. “They want me to bring in a pay stub and show I was working at the time.” The time in question, as previously noted, was some five years earlier. Rogers wasn’t sure whether he’d return. “I don’t know if I have to work or not that day — if so, it’s a win/lose situation. I may make $300 in a day, but if I come down here I’m losing $300 — and, honestly, I may lose.”
For all the time and effort it takes to fight their cases, most of these respondents still lose: Of the cases filed in 2010 that didn’t end on the first day by default, 68 percent ended in an order granting the DA’s motion for forfeiture. Of the more than 8,000 cases, only 48 — 0.6 percent — ended in a judge’s denying the DA’s forfeiture motion.
More often, a respondent and the DA may reach a “settlement agreement” (the terms of which are not contained in physical court records). This reporter has seen some settlements in which all of a respondent’s money is returned, but often the DA agrees to return only a portion of the property. About 20 percent of the cases in which respondents showed up at least once in 2010 ended in such agreements.
It was to such a settlement that Dwayne Marks agreed, after hiring an attorney to get back the $6,000 seized from him without so much as a criminal charge.
“My lawyer said, ‘Listen: I can get your money back, probably, but it’s going to take a year, a year and a half, two years maybe, to keep going to court.’” Meanwhile, his lawyer explained, “The DA says, ‘We’re going to offer you a deal: You take half your money and keep going.’”
“And by the time I pay the lawyer, it was like, I was going to get back $3,000 anyway,” Marks says. “So I just signed off, took the $3,000, and left it alone.”
In a tiny fraction of these cases, respondents who fight long and hard enough may finally make it in front of a judge. Since January, that judge would be in most cases Common Pleas Court Judge Paula A. Patrick. But having one’s day in court is no guarantee of success, either: The burden of “preponderance of evidence,” unlike that of proof beyond a reasonable doubt, means that the DA doesn’t have to present an airtight case — just one that strikes a judge (or, in rare cases, a jury) as even slightly more believable than that of the respondent.