COVID spells chaos in the courts

| Aug 18, 2020 | Firm News |

The coronavirus has wreaked havoc across the nation, leaving local and state governments to take action to slow the spread. From restrictions to essential services to required safety protocols, every aspect of American life has been affected, including the courts. With no clear guidance on how to continue to operate court proceedings, courts across the country have taken several different approaches, ranging from almost total shutdowns of the court functions, to virtually no changes in the day-to-day procedures and operations.

According to the Center for American Progress, the response package passed by Congress has helped to support U.S. courthouses to a point, but since most pertain to the federal level, more needs to be done. With the constitutional rights of those awaiting their trial or currently incarcerated hanging in the balance, the state-level courts need to set protocols.

How have the courts have responded 

While the response of courts across the country has varied, the majority have restricted access to the court building, postponed trials and hearings, and used remote technology when possible. At both the federal and state level, there have been postponements of oral arguments with no specific plan to reschedule, a widespread delay of trials, a delay in arrests, and the issuance of citations for more minor offenses instead of arrests. The result in many cases has been to leave the incarcerated often awaiting trial in limbo, with their right to a speedy trial no longer an option.

A delay of justice

For inmates like Jose Javier Rivera Bernard, the dilemma means delayed justice and a long time waiting in federal prison to be able to defend himself. Bernard was presented with two options for the Fourth Amendment argument regarding his court case. He can have the suppression hearing held virtually, or he can stay locked up and wait for a new date, which could be several months out if the virus numbers continue to rise. For Bernard, the virtual hearing was not an option, as it would not allow his lawyer to challenge the credibility of government witnesses.

The situation was summed up best by a Bloomberg Law quote from attorney Michael Diamonstein. “Courts are overwhelmed, and they don’t know how to react. The tried and true method is ‘keep everyone in jail and we’ll sort it out.’”

Speedy trials no longer guaranteed

With judges issuing blanket orders to suspend the speedy trial requirements, the focus of many defense attorneys has become to get their clients out of jail while they await their trial. The days of attorneys are filled with filing forms for bail, and compassionate release as the conditions in detention facilities get worse and have become hotspots for the virus. While courts have responded by allowing bond in more options and increasing the use of electronic monitoring instead of incarceration, there are still many who cannot afford bail and are languishing in jail. Unfortunately, they wait with no clue as to when they will receive their day in court.

The effect on case preparation and trial

Another major concern for defense attorneys and their clients is the hindrance that restrictions have put on them when it comes to prepping for an upcoming case and presenting a case at trial if they are given one. With communication primarily by phone or video conference, it is difficult for attorneys to review documents and evidence, and even build trust with their clients.

In states where trials have been delayed, if one does get their day in court during the midst of the pandemic, the new protocols can lead to significant problems when trying a case. Attorneys will need to find ways to confer with their clients from a safe distance, even when discussing confidential matters. Jury composition could be affected as courts are having to issue more summons to account for more absences due to illness and other issues that have arisen since the pandemic has started. Those areas and demographics most affected by COVID-19 are expected to be less likely to be able to serve, meaning that jury pools could be skewed until the virus numbers are brought under control.

Even the requirement of wearing masks posses a significant problem when trying a case as it will bring up some of the same issues that hinder remote proceedings. Facial expressions and mannerisms are important for attorneys to convey during court and also important for jurors, attorneys, and judges to see when witnesses testify. The ability to judge credibility and truth can be greatly hindered when facial expressions are removed from the scenario.

From the suspension of the right to a speedy trial, to unsafe conditions in jails when awaiting trial, to trial practices that can hinder a fair judgment and outcome, the chaos of COVID is not only affecting the courts but also the constitutional rights of the accused that are the foundation of the American justice system.