DA denies deal as hearing nears

An alleged backroom deal has complicated the resentencing of former Neurosurgery professor Tracy McIntosh and has raised questions about the role and propriety of such agreements.

McIntosh, 54, pleaded no contest in 2004 to the sexual assault of his college roommate's 23-year-old niece.

In a hearing in the Philadelphia Court of Common Pleas Friday regarding McIntosh's court-mandated resentencing, Joel Trigiani, one of McIntosh's lawyers, asserted that an off-the-record deal among the case's lawyers stated that McIntosh would not face prison time in exchange for his no-contest plea.

The prosecution has denied that the deal took place, but several Philadelphia criminal defense lawyers unaffiliated with McIntosh's case said informal deals are not uncommon despite the risks involved.

According to attorney Ronald Smith, it would not be unheard of for someone in McIntosh's position to make an agreement with the prosecution and then have one party renege on the deal afterward due to an outcry of public opinion.

But, as evidenced by the McIntosh case, lawyer William Brennan pointed out that tough situations can arise if an informal deal falls through.

"You're somewhat hamstrung to debate it because there's nothing on the record," he said.

Mark Hauser, another criminal attorney, said that he doesn't know why a lawyer would make a backroom deal in place of an on-the-record agreement.

Such deals negate the purpose of public proceedings, he said: "That's what the record's for - to indicate what your intentions are."

Despite other lawyers' characterizations of informal deals as risky, Trigiani asserts that they should involve little uncertainty.

"Whether it's informal or formal, the rule is pretty clear that if a promise is made, it has to be honored," he said yesterday.

During a Sept. 7 hearing in which he recused himself from the case, Rayford Means, the judge involved in the alleged agreement, hinted that a backroom deal had occurred, saying that, "In my heart of hearts, I know what both sides bargained for."

He has not publicly confirmed that a deal took place.

At Friday's hearing, Judge Pamela Pryor Dembe denied a request from Trigiani to hold a hearing to determine if the backroom deal existed. Trigiani said yesterday that he would meet with McIntosh soon to discuss McIntosh's options, which include withdrawing the no-contest plea.

Withdrawing the plea is "always a possibility," Trigiani said.

But withdrawing a plea is difficult, Brennan explained. Before a judge accepts a plea, he will ask a series of questions to establish that the plea is being made intelligently and knowingly, that the defendant was not forced or threatened and that the defendant has competent counsel.

If those criteria are established, Brennan said, "it's difficult to come back with 'I didn't know what I was doing' and try to withdraw the plea."

Dembe said she would not decide whether McIntosh could withdraw his plea unless that is the course the defense chooses at a Sept. 28 hearing.

Assistant District Attorney Richard DeSipio, who has asked for a sentence of at least 5 1/2 years in state prison instead of the house arrest originally given, said after Friday's hearing that prosecutors would "strongly oppose" an attempt to withdraw the plea.

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