By Marlene DiGiacomo, mdigiacomo@delcotimes.com

MEDIA COURTHOUSE — A “policy” of the Delaware County District Attorney’s office involving defendants facing mandatory minimum sentences in drug cases — who must waive a preliminary hearing as well as other rights for a plea to reduced time — has drawn the ire of defense attorneys.

Close to a dozen county lawyers were on hand Thursday as Media attorney Michael Malloy argued before a three-judge panel that the “policy” is illegal.

Malloy maintained the procedure amounts to “shooting in the dark,” since lawyers, without the benefit of testimony at that initial preliminary hearing, are being asked to advise their clients about an offered plea deal. And he said the defendant must also agree not to litigate pretrial motions, including seeking bail.

“A preliminary hearing is critical,” said attorney Edward Weiss, outside the courtroom. “If you don’t have it, you can’t evaluate your case.”

“It’s like ‘Deal or No Deal,’” added fellow lawyer Al Jacobs, likening it to the TV show in which contestants deal for money without knowing what’s in a particular briefcase. He said lawyers are being asked to deal for their clients without a complete knowledge of the evidence.

Malloy argued before Judges Frank T. Hazel, Patricia Jenkins and Ann Osborne that the “policy” is unconstitutional. He brought the challenge on behalf of three clients facing drug charges for crimes the state Legislature has specified are deserving of mandatory minimum sentences.

Assistant District Attorney Michelle Hutton termed Malloy’s argument as “meritless.” She said such negotiations are within the discretion of the district attorney’s office and are “mutually beneficial to both sides.”

“This is all part of the give and take of negotiations,” she said

Hutton stated in her memorandum that “a defendant’s difficult choice to waive constitutional and statutory rights in favor of a more lenient sentence is an inevitable and permissible attribute of any legitimate system that tolerates and encourages the negotiation of pleas.”

Malloy is seeking to have his clients exercise their right to a preliminary hearing, review all discovery relating to their cases and “review the appropriate case law before deciding whether to file any omnibus pretrial motions, enter a plea of guilty or proceed to trial.”

Hazel questioned Malloy as to how he can be opposed to a “policy” that allows his clients to receive a sentence that is less than the state-mandated minimum.

Malloy said that’s fine for a guilty defendant. But he asked what about a client who is innocent and the evidence isn’t there — which he would have found out had there been a preliminary hearing.

“It’s a break for the guilty guy,” said Malloy outside the courtroom. “But it’s hell for the innocent guy.”

The judges took the matter under advisement and will rule later.