The recent dismissal of all criminal charges against Philadelphia Police Officer Mark Dial in the killing of Eddie Irizarry has created an uproar, and understandably so. After all, there is video of the incident that shows Dial approaching Irizarry’s car and, within five seconds, firing multiple shots through the window, killing him.
It was the latest in a series of missteps that already had aggravated Irizarry’s family and the public, including the Philadelphia Police Department’s first statement, which — falsely — claimed that Irizarry had lunged at officers with a knife. In fact, the video plainly shows that Irizarry never even attempted to get out of his car, and while there is some question about whether he had a knife, Irizarry was certainly not brandishing it in any menacing way toward either Dial or his partner. Then, Officer Dial was allowed to post bail while facing a charge of first degree murder — while other criminal defendants in Philadelphia charged with first degree murder are routinely held without bail.
Dial was eventually remanded back to jail, and the District Attorney’s Office presented what it believed was a strong case at a preliminary hearing before Philadelphia Municipal Court Judge Wendy L. Pew on September 26, 2023. Except then, Dial went free — again.
Judge Pew, in my view, acted outside the bounds of her legal authority. She addressed factual questions as though she were a juror.
So, what happened? The answer lies in what I believe is Judge Pew’s dreadful misapplication of the law.
According to Pennsylvania law, a preliminary hearing is not a full-blown criminal trial. The purpose of a preliminary hearing is for the judge to ascertain whether there is a prima facie (a Latin term meaning “on its face”) case against a criminal defendant — in this case, Officer Dial.
The prima facie legal standard demands that the judge view all of the evidence that the prosecution presents at a preliminary hearing in the light most favorable to the prosecution. That is, the judge must not determine the credibility of the defendant at this stage of a criminal prosecution. Instead, the judge at a preliminary hearing has a very limited role, demanding answers to two very narrow questions: assuming the prosecution’s evidence to be true, (1) Was a crime committed?, and (2) Is it more likely than not that the defendant committed the crime? If the answers to these questions are “yes,” then the case must be sent to the Court of Common Pleas for a trial on the charges presented at the preliminary hearing.
The judge may not make factual determinations of the sort that a jury would consider — whether or not a witness made this or that statement, what people may have heard or not heard, or was there self-defense. Such questions, in our constitutional system of criminal justice, are factual questions for a jury, not for a judge at a preliminary hearing.
Judge Pew, in my view, acted outside the bounds of her legal authority. She addressed factual questions as though she were a juror. For example, much was made about whether officer Dial’s partner yelled “knife” or “gun.” The prosecution presented evidence that Dial’s partner said “knife,” and the defense offered evidence that he said “gun.” What did Dial’s partner actually say? That is a question for the jury at trial, not the judge at a preliminary hearing.
If Judge Pew had followed the law, Dial’s prosecution should have gone forward, since there was some evidence that Dial’s conduct — shooting Irizarry — was a criminal use of force amounting to first degree murder. Instead of adhering to the appropriate legal standard, Judge Pew apparently usurped the role of the jury not only in making factual determinations about what was said, but also in dismissing the charges altogether, which is akin to an acquittal before the trial even begins.
The District Attorney’s Office has appealed to the Court of Common Pleas to refile the charges against officer Dial. Although I cannot and do not know what the District Attorney’s office’s precise argument will be, I conjecture that its argument will, in part at least, reference Judge Pew overstepping the narrow boundaries of her authority at the preliminary hearing.
One way this process did work
If there is a silver lining to the cloud of this terrible tragedy, it is that Judge Pew’s decision has a transparency that grand jury proceedings do not, and that her decision, though legally erroneous in my view, protected officer Dial’s rights, while allowing the community — especially the victim’s family — to witness the prosecution’s vigorous attempt to hold the officer accountable.
Unfortunately, too often in police shooting cases of unarmed citizens of color, the secrecy of grand jury proceedings leaves the victim’s family in the dark about what happened, without any sense of what real efforts the prosecution made to dignify the life of their loved one with legal accountability. The secrecy not only leaves the victim’s family, but also the average citizen, to wonder if their government really works for them.
In a constitutional democracy such as ours, such a state of affairs is unacceptable. At a bare minimum, the community must have faith that the criminal laws are evenhandedly and justly enforced, especially in cases where those charged with enforcing them are the accused lawbreakers. Simply put, the use of grand jury proceedings in police shooting cases fosters distrust, not trust, from the community. Preliminary hearings ought to be the norm in police shooting cases like Eddie Irizarry’s.
What will come of the prosecution’s attempt at refiling the charges against Officer Dial? We do not know. We can, however, say with confidence that the use of preliminary hearings rather than grand juries in police shooting cases gives both victim’s families and the broader public the transparency and accountability that their citizenship deserves and that our democracy requires. May we always remember the insightful words of Judge Damon Keith: “Democracies die behind closed doors.”
Timothy J. Golden, J.D., Ph.D. is Visiting Professor of Philosophy at Whitman College. He was a criminal defense lawyer in Philadelphia for nearly 20 years.
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