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    Right to Counsel in a Philadelphia Civil Forfeiture Case Involving a Home

    Picture this scenario. A grandmother in Philadelphia takes care of several grand kids, one of whom starts selling drugs out of the grandmother’s house. The grandchild is arrested and later convicted of selling drugs. The grandmother receives notice that the police and Philadelphia District Attorney’s office have petitioned the court to seize her home. If she loses her home, she and her remaining grandchildren will be homeless.

    More: Can You Lose Your House if a Relative Sells Drugs? Pennsylvania’s Controlled Substances Forfeitures Act

    When it finally comes time for her hearing, she represents herself because she can’t afford a lawyer. She tries to defend herself, but without legal training, she doesn’t know to present the “innocent home owner” defense. She loses the case, and her house is seized. She is now homeless. This type of scenario is actually quite common in Philadelphia, especially for drug cases, i.e., possession of a controlled substance with intent to deliver.

    Right to a Jury Trial in Forfeiture Cases Involving an Alleged Drug House

    It is well settled in Pennsylvania that citizens have a right to a jury trial in civil forfeiture cases. In addition, a recent Pennsylvania appellate court has held that the home owner in a civil forfeiture case may waive their right to a jury trial only after a knowing, intelligent waiver that is made on the record. See Commonwealth v. The Real Property and Improvements at 2338 N. Beechwood Street Philadelphia PA 19132, 2012 Pennsylvania Commonwealth Court. This is similar to the standard applied to criminal cases, where an accused individual can waive a right to a jury trial only after it is established that the waiver was made with knowledge, voluntarily and on the record.

    Related: Philadelphia PA Drug Cases Thrown Out Due to Corruption in Philadelphia’s Police Department

    Right to a Lawyer in Forfeiture Cases Involving an Alleged Drug House

    Currently, no state or federal court has ruled that a home owner has the right to court-appointed counsel in Pennsylvania (state) civil forfeiture cases. In federal forfeiture cases, on the other hand, home owners do have a right to counsel.

    Various courts have held that other constitutional protections apply to Pennsylvania (state) forfeiture proceedings, such as the right to be free from self-incrimination, the right against the imposition of an excessive fine, and the right to raise certain defenses, i.e., the innocent owner defense.

    In addition, the Commonwealth Court in the Real Property case strongly suggested, but did not go so far as to require that the state provide indigent home owners with court-appointed counsel. In a rather long footnote, the court discussed that forfeiture of a home certainly implicates the right to counsel, and the court even suggested that courts supply home owners with special notices about their rights to a lawyer.

    Philadelphia Criminal Drug Charge Lawyer

    David S. Nenner is criminal lawyer with over 2 decades of experience handling drug/gun cases, murder/homicide cases, appeals/PCRA and civil forfeitures. Please call for a free case review. (215) 564-0644

    Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

    David S. Nenner

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