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PACKEL v. MIRARCHI (10/16/74)

decided: October 16, 1974.

PACKEL, PETITIONER,
v.
MIRARCHI



Original jurisdiction, in case of Israel Packel, Attorney General of the Commonwealth of Pennsylvania v. The Honorable Charles P. Mirarchi, Jr., Judge of the Court of Common Pleas of Philadelphia County.

COUNSEL

Israel Packel, Attorney General, for petitioner.

Stuart Glovin, for respondent.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Nix dissents. Mr. Justice Manderino dissents.

Author: Eagen

[ 458 Pa. Page 603]

The Attorney General of the Commonwealth of Pennsylvania has filed a petition in this Court "For Supersedeas and Writ of Prohibition" naming as respondent, the Honorable Charles P. Mirarchi, Jr., a Judge of the Court of Common Pleas of Philadelphia.*fn1 The facts giving rise to the filing of this petition may be summarized thusly.

Beginning in July 1972, the Pennsylvania Crime Commission [Commission], an administrative commission within the Department of Justice of the Commonwealth, began an extensive investigation into police corruption and the quality of law enforcement in the City of Philadelphia. Following the completion of its investigation, the Commission filed a report on March 11, 1974, stating, inter alia, it has found "that police corruption in Philadelphia is ongoing, widespread, systematic and occurring at all levels of the police department." The Commission's report also suggested that "a local district attorney cannot properly investigate the very police on whom he must rely for the day-to-day conduct of his job," and for this reason the Attorney General should "appoint a Special Deputy Attorney General as an independent prosecutor with jurisdiction over police corruption investigations and prosecutions in Philadelphia."

On March 18, 1974, the Honorable F. Emmett Fitzpatrick, Jr., the District Attorney of Philadelphia, filed a petition with Judge Mirarchi, the respondent, requesting that the Grand Jury for the March Session of the Court of Common Pleas, Criminal Division of Philadelphia, be specifically charged "to investigate alleged criminal conduct on the part of individuals within the Philadelphia Police Department and to make presentments

[ 458 Pa. Page 604]

    to the Court as the ends of justice may require." A hearing on this petition was held before Judge Mirarchi on March 27th, at which time the Attorney General objected to empanelling the March Session Grand Jury for the purpose of investigating the matter requested by the District Attorney. At the same time, the Attorney General notified Judge Mirarchi in writing that he was superseding Mr. Fitzpatrick, the District Attorney, in this matter and was appointing a Deputy Attorney General in lieu of the District Attorney to investigate and prosecute police corruption cases in Philadelphia. At the same time, the Attorney General also notified Judge Mirarchi that he was then withdrawing the District Attorney's petition requesting that the March Session Grand Jury be empaneled and directed to investigate police corruption in Philadelphia. Judge Mirarchi refused to give effect to the Attorney General's notice of supersession of the District Attorney and of the Attorney General's withdrawal of the District Attorney's petition to empanel the Grand Jury for the purpose requested. Judge Mirarchi then proceeded to empanel and charge the Grand Jury in accordance with the District Attorney's petition. The Attorney General then filed the instant petition requesting a supersedeas and the issuance of a writ prohibiting the March Session Grand Jury from proceeding with an investigation into corruption in the Police Department of Philadelphia and prohibiting Judge Mirarchi from continuing to exercise jurisdiction in such an investigation. Judge Mirarchi and Mr. Fitzpatrick, the District Attorney, filed answers to the petition objecting to the issuance of the writ.*fn2 We heard oral argument on April 29, 1974.

In opposing the petition before us, both Judge Mirarchi and Mr. Fitzpatrick contend the action of the Attorney

[ 458 Pa. Page 605]

General in superseding the District Attorney was, under the circumstances, an abuse of power and should not be ...


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