There is often a moment in court when law meets reality.
For defense attorney D. Scott Perrine and his client, shooting suspect Pete Hopkins, the moment was yesterday in the courtroom of Common Pleas Court Judge Frank Palumbo.
He argued his client should be freed because judicial scheduling deprived him of a timely preliminary hearing.
Of that, Palumbo conceded: "It's creative and clever, but it's just that I've never heard it before."
And Palumbo concluded: "Your motion here has got to fail . . . If I followed this rule, 70 percent of all cases would have to be thrown out. Maybe more. You know that for practical purposes this just will not work."
Perrine had asked for a writ of habeas corpus, a provision that lets a judge free a detained criminal defendant improperly denied their liberty.
Perrine's logic was simple: Pennsylvania courts say an arrested person must get a preliminary hearing in 10 days. Hopkins' May 16 hearing was aborted when the judge recused herself without explanation. The Municipal Court president judge refused Perrine's request to dispatch an emergency judge to complete the hearing. Hopkins now must spend 74 days in prison until July 17, the date of his rescheduled hearing.
Ergo: Hopkins must be set free immediately and the charges dismissed.
Ergo no, ruled Palumbo, noting that on Philadelphia's crowded criminal docket, a delayed preliminary hearing is the rule, not the exception.
"That's just not going to happen here in Philadelphia County," Palumbo said of the probability of a preliminary hearing being set and done within 10 days.
Assistant District Attorney Christopher Diviny said Perrine was "pandering to the press." He said Philadelphia emergency judges are never used as Perrine suggested.
Diviny also argued that Hopkins was not a candidate for freedom or a reduction in his $1 million bail: "This individual is now on his eighth arrest, and an increasing course of violence marks [his] lifestyle."
Hopkins, 19, of Nicetown, is one of three men accused of attempted murder and related charges in a May 5 confrontation in North Philadelphia's Feltonville neighborhood that left three people wounded.
He is perhaps better known as one of the three men whose arrest and beating by a group of police officers was caught on video by a news helicopter. The incident attracted unwanted international attention to the city and thus far has resulted in four officers' being fired and four more being disciplined.
Perrine yesterday stressed that his ability to defend Hopkins has been compromised because of the video, the actions against the officers, and the fact that police officers' written accounts of the May 5 encounter have changed several times.
Police initially said they pursued the 2000 Mercury Grand Marquis after an officer saw it leave the scene of the shooting, Fourth and Annsbury Streets, at 10 p.m. May 5.
Police say they were monitoring the area that night because they had been warned of a shooting in retaliation for the killing the night before of 20-year-old Andrew Coach.
Initially, police said that they watched the Mercury park at the scene and that four men got out. Shots were fired into the group of people, the gunman ran away, and the three others drove off in the car.
Police pursued the car for two miles until it was forced onto the shoulder in the 3700 block of North Second Street. A Fox29 news helicopter hovering overhead then captured the scene as police rushed the car with guns drawn, pulled the three from the car, and kicked and hit them while they were prone on the ground.
By the May 16 hearing, the fourth man was still unidentified and at large, and police had alleged that Hopkins was the shooter.
Diviny said yesterday police recently found the gun used in the May 5 shooting in a wooded area along the Mercury's escape route.
Diviny said ballistics tests proved that the 9mm semiautomatic Glock pistol was the gun that wounded the three victims and that 15 cartridge casings came from it.
On May 30, an area on Second Street just south of Rising Sun Avenue was cleared and searched and the Glock was found, Vanore said.
Diviny said he did not know whether investigators had yet determined who owned the gun.