Frozen-in-Place Courts Worry Defense Lawyers

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The Sixth Amendment, with its speedy and public jury trial provisions, didn’t foresee anything like this pandemic.

People presumed innocent sit locked up in disease-prone jails with no idea when their trials will take place, not when court houses are closed and juries can’t be seated for fear of spreading the coronavirus.

Only war and civil unrest have curtailed constitutionally guaranteed rights of criminal defendants to this extent—most significantly 157 years ago.

Defense lawyers say the contagion has pushed an already-bent criminal justice system to the breaking point, from where it may not fully return.

Eighty-six of the nation’s 94 federal district courts have halted jury trials as of the end of March, including those in New York—which at the time registered the most confirmed cases in the nation—California and Washington, the first state hit hard by the outbreak.

“We might soon be sailing into uncharted waters in terms of speedy trial rights,” said defense lawyer James Felman, a partner in Tampa, Florida’s Kynes, Markman & Felman.

“How you can reconcile the individual’s right to a fair trial, especially if detained, with the need to protect society by not having trials?”

Compounding civil libertarians’ concerns are recent reports that U.S. Attorney General William Barr is seeking more authority to keep defendants locked up longer and with less access to judicial review during emergencies.

The U.S. Department of Justice considers such fears overblown, saying that it was merely responding to Congress’ request for proposals to best keep the courts running during the pandemic.

Pressed about detention concerns in the coronavirus era, in a statement given to Bloomberg Law on March 26, the Justice Department said it is “handling each case on its merits while considering the circumstances created by COVID-19.”

The DOJ continued: “The Attorney General has directed each US Attorney to engage with the chief judge in each judicial district to ensure the critical function of America’s justice system while simultaneously protecting Constitutional rights.”

Still, the outbreak has compelled criminal defense attorneys around the country to adjust daily to a justice system that’s nearly ground to a halt. That has created new concerns, such as the possibility that innocent clients may look to cut plea deals if it helps them avoid plague-ridden prison terms.

Even attorneys’ ability to meet with the clients in custody to prepare for upcoming court appearances is threatened by steps taken by courts across the country to contain the contagion.

Though civil matters are being disrupted, too, Joseph Moreno, a partner in Cadwalader, Wickersham & Taft’s white collar defense and investigations group, predicts that “the impact on the criminal justice system will be even more pronounced and long-lasting.”

**We’re in “completely new territory,” said defense attorney Nina Ginsberg, who serves as president of the National Association of Criminal Defense Lawyers. “We’re in real danger of a total breakdown of the system.”

According to guidance from the Administrative Office of the U.S. Courts, jury proceedings should be conducted only in “exceptional circumstances,” to comply with social distancing and restrictions on gatherings of more than 10 people.

*“Social distancing is incompatible with jury trials, and you can’t exclude people who are ‘high risk’ from jury service,” said white collar defense lawyer and former New York federal prosecutor Harry Sandick.

“It is hard to see jury trials happening under current circumstances.”

That means trials—or, perhaps more importantly, in a system where so few cases go to trial, the possibility of trials—are all but guaranteed to stall for the foreseeable future.

“For those charged with violent crimes or who otherwise cannot be released, delays in hearings and trial proceedings will lead to significant backup that will likely take months to get through,” said Cadwalader’s Moreno, a former federal prosecutor.

Defendants held pretrial are “in the worst position,” said Ginsberg, a founding partner at DiMuro Ginsberg in Alexandria, Va., who has practiced criminal law for more than 35 years.

She said she’s not seen anything like this in her career.

Not having trials “is a big deal,” she said, “because people are going to be pushed into pleas so that they can just get through the court system.” That’s happened before, she said, but now “it’s going to be worse.”

Ginsberg doesn’t think speedy trial rights “are going to be a remedy for people who are in custody who are facing criminal charges, because courts will almost certainly find, in this kind of a national emergency, that the ends of justice are served by suspending the running of the speedy trial clock.”

That’s been true so far. Courts around the country have been issuing virus-related speedy trial orders, like one earlier this month from the chief judge in the federal district that covers Philadelphia, pushing off any criminal jury trials until at least April 13.

“The Court is cognizant of the right of criminal defendants to a speedy and public trial under the Sixth Amendment and the particular application of that right in cases involving defendants who are detained pending trial,” Chief Judge Juan R. Sánchez explained in his order excluding that time period under the speedy trial act.

But in light of the health crisis and the inability to get jurors, Sánchez’s order said, “the Court finds the ends of justice served by granting a continuance outweigh the best interest of the public and each defendant in a speedy trial.”

The contagion has even slowed the U.S. District Court for the Eastern District of Virginia’s so-called “rocket docket”—so called because it was the fastest indictment-to-trial federal court.  That court has suspended virtually all civil and criminal hearings through May 1.


The question becomes what happens not just in the coming weeks but in the coming months and seasons.

Some measure of delay is baked into the system, of course. But if this drags on, “if we can’t have trials for six or 12 months,” Patterson Belknap Webb & Tyler’s Sandick said, “we will need to find some way to address these cases.”

It may be up to judges to reconcile Felman’s quandary about the individual right to a speedy trial with the need to protect the public from the virus by not having trials.

It’s a perfect example of “the deadly dilemmas of governing,” said Northwestern Law School Professor Ronald J. Allen. “Every choice you make has both costs and benefits.”

Even pretrial criminal defense rights are affected, the NACDL’s Ginsberg said.

“Things are changing literally from day-to-day in terms of what capacity the courts have and what kinds of proceedings are going to continue to be held,” said Ginsberg. While it’s theoretically possible to conduct some of the court’s business via video conference, it won’t work well if a lawyer is in the courtroom while his client is appearing remotely from jail and the two can’t privately confer, she said.

“But if the judge has to stay home and the lawyers have to stay home and the clerks have to stay home, those hearings are not going to happen,” Ginsberg added.

“They’re going to have to figure out how to allow certain people to come to the courthouse or come to some location to permit those things to happen. And right now, nobody knows how to do that.

“The judges I talk to are figuring this out on a day-to-day basis.”

Jordan S. Rubin, a Washington, DC-based reporter for Bloomberg Law, is a 2020 John Jay/H.F. Guggenheim Justice Reporting Fellow. This is a condensed and slightly edited version of the original, which can be accessed here.

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