A defense lawyer uncovered the practice when he accused prosecutors of illegally searching the cell of his client, who is charged along with her husband with running a deadly abortion clinic.
Prosecutors issued only a subpoena to prison officials to search for letters, photographs and other personal items in Pearl Gosnell's cell at a city women's prison, lawyer Michael Medway said in court.
"It's a fiction to use a subpoena to get around the use of a search warrant," Medway said.
Assistant District Attorney Joanne Pescatore did not deny the accusation.
"We do this pretty regularly now to search cells," Pescatore told Common Pleas Judge Benjamin Lerner. "Everybody in our (homicide) unit does it. It's always been upheld."
Lerner questioned the practice, saying it had been banned in a prominent city case a quarter-century ago.
Lerner ordered prosecutors to surrender originals and copies of any items they seized from Pearl Gosnell, and said he would hold a hearing on the issue if Medway files a motion to quash the evidence. Medway plans to do so.
"I don't understand how the commonwealth can think that it's OK to serve a subpoena to search the cell of a represented defendant ... without notifying counsel and giving him a chance to go to court (to fight it)," Lerner said.
Assistant District Attorney Ed McCann, chief of the city's homicide unit, did not immediately return a call for comment about the practice. According to Pescatore, prosecutors work with a chief counsel for the prison in executing the subpoenas.
Prosecutors can issue subpoenas to have witnesses appear in court, or to have someone produce documents or materials for a court hearing, Lerner said. In the memorable case from about 25 years ago, prosecutors improperly used subpoenas to lure witnesses not to court, but to the district attorney's office for interviews, he said.
Dr. Kermit Gosnell, 70, is being held without bail on charges he killed a patient and seven viable babies and allowed employees to practice without a medical license or proper training.
Pearl Gosnell, 50, remains in prison while awaiting release to house arrest. Neither Gosnell was in court for Wednesday's hearing, which was mostly designed to set future hearing dates. Eight former employees are also charged in the case, a few of whom have made bail and attended the hearing.
Several defendants have filed motions to have their cases severed from that of Kermit Gosnell, or to quash evidence. Lerner set a June 21 pretrial hearing on those motions.
Prosecutors told Medway the personal items they seized - delivered to him in a manila envelope with his client's name and the phrase "Cell Search 4/6/11" - were not incriminating. He nonetheless wants the evidence thrown out.
Lerner also issued a gag order in the high-profile case, which stems from a year-long grand jury investigation that spawned a nearly 300-page investigative report.
Prosecutors have indicated they may seek the death penalty against Gosnell.
