THE CRIMINAL case against an ex-Philadelphia cop who allegedly ordered a woman to strip naked and watch him masturbate during a Kensington drug raid was thrown out Tuesday thanks to a screw-up at the District Attorney's Office.
To make a prolonged criminal-court case short: It took a city prosecutor too long to try Joseph Harvey, 37, violating his constitutional right to a speedy trial on charges filed in April 2010.
Assistant District Attorney Jack O'Neill — who recently took over the case from another prosecutor — said his office plans to appeal the ruling that dismissed charges of indecent exposure, false imprisonment and official oppression.
Defense attorney James Funt praised the ruling as an affirmation of Harvey's rights as guaranteed in the 6th Amendment to the U.S. Constitution.
"The commonwealth acknowledged that much of this [delay] was based on their own vacation time, either police vacation time or district attorney vacation time," Funt said. "The considerations for Mr. Harvey's constitutional rights were not even considered, frankly.
"They were more concerned about their witnesses, their schedules," Funt said. "They can do that, but there are consequences to that."
Because of the pending appeal, Harvey declined to comment after leaving court. The husband and father was a seven-year Police Department veteran last assigned to the 24th District when he allegedly exposed himself while taking part in a drug raid of an abandoned Kensington house on Oct. 9, 2009.
The 21-year-old victim, whom the Daily News is not identifying, contacted police the day of the incident, and again the following day. Police Internal Affairs investigated, and Harvey was arrested April 21, 2010.
Because he was charged with misdemeanors and his case was in Municipal Court, city prosecutors had 180 days plus an additional 30 days to bring his case to trial, according to state law. The time restriction exempts delays caused by the defense or due to the court's calendar.
In dismissing the case, Common Pleas Judge Barbara A. McDermott issued a 10-page ruling in which she stated that the case was 550 days past the date when it should have gone to trial under state law.
She blasted the prosecution for failing to bring the case to trial on time despite having "the benefit of an extensive investigation resulting in solid physical evidence" gathered during the Internal Affairs probe.
"There is simply no excuse for the Commonwealth's failure to resolve this matter before now," McDermott wrote in her ruling.
The victim, despite admitting that she has a severe drug habit and had used drugs in the abandoned D Street house the day of the raid, stuck to her story and testified in vivid and graphic detail during two motion hearings last year.
She testified that she and a male friend had been in a second-floor bedroom, where they got high on heroin and cocaine and were about to have sex on a mattress on the floor when the cops burst in.
She got dressed, some of the officers took her friend away and Harvey remained alone with her. He told her to take off her clothes, the woman testified.
"I figured if I didn't get undressed, I was going to jail," she said.
She said Harvey told her to spread her legs before he pulled down his pants and masturbated. Investigators recovered a drop of semen from the woman's clothing that they said came from Harvey. His former defense attorney, Joseph Kelly, waged a battle in last year's motion hearings to have the DNA evidence suppressed, arguing that the warrant that police used to collect the evidence was faulty.
That motion eventually was denied. In September another judge granted a prosecution motion to move the case to Common Pleas Court for a jury trial. But by then, McDermott noted in her ruling, the case was already 340 days past the trial-deadline date.
O'Neill blamed part of the delay on another judge who improperly declared a mistrial but later reversed himself. That will be part of the appeal, O'Neill said Tuesday night.
Funt, who took over the case from Kelly in March, filed a motion last month to have the charges dismissed on speedy-trial grounds.
Funt said he didn't know if Harvey planned to try to get his job back. Messages left with officials from the Fraternal Order of Police were not returned.
"I can tell you this: Mr. Harvey has always asserted his innocence in the case. He has always asserted that at no time did he ever force anyone to do anything against their will," Funt said. "If the case comes back down and if there's a trial, Mr. Harvey will be exonerated." n