Courts, Trials

'When Will I Get My Trial?' Being A Criminal Defense Attorney During COVID

My work right now is more psychology than law because there’s really not much I can do to advance cases without being able to start a trial.

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Most criminal courts around the country have been closed or working virtually since the onset of COVID-19 quarantining in March. But neither arrests nor the incarceration of those arrested have stopped.

In addition, more than half a million people, or six out of ten detainees in jails, are awaiting trial in the U.S., according to studies by the Pretrial Justice Institute. Their cases have been indefinitely postponed.

That’s a tough thing to tell a client calling from jail, panicked, having recently been sprayed with a chemical agent used to quell unrest inside his facility.   His questions: When do I go back to court? How long can I be held here before trial? Aren’t I supposed to be presumed innocent?

Have constitutional rights to due process and a speedy trial been canceled due to the pandemic?

The answer, for the moment, is yes. Speedy trial rights have been stopped either by governors’ decrees or by the fact that because of the pandemic no jurors are being called to court. And there’s no end in sight.

What used to by my typical day — appearing in five court parts, visiting clients in jail, being on trial — has now become fielding desperate calls from incarcerated clients and talking them down from the proverbial ledge.

My answer to their questions is vague and unsatisfactory to both me and them: “No, I don’t know when things will get back to normal again.” I plead with them to stay calm no matter how angry, frustrated, and uncertain they feel. My work right now is more psychology than law because there’s really not much I can do to advance their case without being able to start a trial.

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Many of my clients suffer pre-existing medical conditions like asthma and are now stuck in a confined space with 30 to 50 other inmates. There’s no testing of inmates without symptoms, who may be silent carriers. Prisoners’ movements are restricted to one of two rooms, the “day room” where food is eaten and TV watched, or their cells, if they’re lucky enough to have solos.     Quarantining has meant the elimination of yard time, library, and in-person visits.

Many in jail also suffer mental illness, everything from bipolar disorder and schizophrenia to anxiety and depression. While most still get their meds, many are afraid to take medication if it makes them too drowsy. Right now, they need to be even more aware of what’s happening in the confined space around them. They don’t want to get too close to a guy who’s sneezing or another who’s bugging out. There’s also evidence that mental health issues lead to sleeplessness, which further weakens the immune system, leaving such people more susceptible to COVID-19.

I’ve done many Skype bail applications where the judge, court reporter, court clerk, prosecutor, defendant, and I appear in adjacent boxes. All of us professionals inhabit very different realities than that of the inmate. The backgrounds of our boxes are open living rooms, windowed offices or book-lined studies. The inmate’s interior is the inside of a video booth where the noise of alarms, correction officers having conversations, and the shouts of dealing with the day-to-day in prison are so loud, it’s often necessary that he remain muted.

Adding to the pressure of worrying about catching the virus — eating, sleeping, and showering less than two feet from the next guy — an equal source of anxiety for them is not knowing when their case will get back on track to trial.

In the days before COVID-19 days, the prosecution was charged with the time when they couldn’t start a trial. Eventually after a set amount passed, the case could get dismissed. That’s no longer true. COVID-19 time counts for no one.  Inmates are in limbo. Speedy trial mandates have become a thing of the past.

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There’s still no word on when jurors will be called back to serve or strategies to employ when they do re-enter courtrooms. Some suggestions are that defendants sit six feet from their attorneys and that jurors spread throughout the room to ensure social distancing. Then there’s the matter of deliberations. Juror rooms, often small, windowless spaces reminiscent of 12 Angry Men, will have to be moved to much bigger venues.

Defense attorneys fear that when jury service resumes, those jurors called will be a subset of the population — those with no pre-existing medical conditions and potentially fewer minority jurors since COVID-19 impacts that population at a higher percentage rate.

So, what’s the solution?

Waiting for trial to start is not as painful if the waiting is done outside of jail.  Judges and prosecutors must reconsider their traditional, pre-COVID-19 stances on bail — i.e., asking for the highest they can and assuming defendants won’t come to court if released. Open-mindedness on alternatives is what’s needed now, even regarding defendants charged with violent crimes.

For some, $2,500 paid by a family member is high bail and will guarantee their return because they wouldn’t want to see their family member lose it. For others, ankle bracelets, or daily check-ins with a court-monitoring agency, might be necessary. Many just need a regular address, housing, and medical treatment. Maybe intermediate halfway-type houses could be used for impoverished inmates who don’t need to be in jail but just need a place to live and a metro card to return to court.

Until courts resume normally, which could be months or even longer, it’s time for judges to think outside of the box on bail so that even if due process rights must be suspended, most defendants awaiting trial will not be waiting in jail.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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