The coronavirus pandemic has disrupted America’s adversarial system of justice like nothing before it, chipping away at the bedrock guarantee of American jurisprudence — the right to a trial by jury.
There has not been a jury trial in Western Washington — perhaps in the entire state — since early March. While the wheels of justice still turn — some hearings are still held, arraignments and pleas are taken — for the most part they are spinning in place. The federal courthouses in Seattle and Tacoma have been shuttered by judicial order: Pretrial proceedings are done either by video, telephone or postponed. In the busier state courts, where locking the doors hasn’t been an option, the daily docket call looks very different than it did just four months ago.
In a downtown Seattle courtroom on a recent Wednesday, the criminal defendants wore masks with their jail garb and the judge presided from behind a plexiglass partition. But while some attorneys participated via phone, those in the room sat shoulder-to-shoulder. Paperwork passed between defense attorneys, clients and clerks. In the courtroom’s small gallery, maintaining social distance was all but impossible.
The scene on the 12th floor of the King County Superior Court underscores the challenge courthouses nationwide face as they attempt to find a way forward in a post-coronavirus world, where a packed courtroom simply isn’t feasible.
Some worry that, as the weeks and cases pile up, the pandemic-caused delays threaten to turn one of our most revered legal maxims into something more like an accusation: Justice delayed is justice denied. In many cases — despite efforts to ease jail populations — there are citizens accused of crimes, innocent until proven guilty, who wait in custody, unsure when their case will ever be heard.
“You have to wonder how far we can stretch the system before it becomes unrecognizable, and we violate the Constitution,” said Chief U.S. District Judge Ricardo Martinez, who chairs a national committee assigned by the U.S. Judicial Conference to “reconstitute” the federal judicial system in the wake of the coronavirus shutdowns. “How far can we bend it before it breaks?”
Beginning in early March, Martinez was the first judge in the country to shutter federal courthouses when he closed those in Seattle and Tacoma, postponing criminal and civil trials and grand jury hearings. The district’s 13 federal judges and nine U.S. magistrate judges continue to hold some hearings, take pleas and preside over other peripheral proceedings — both criminal and civil — providing they can be done by telephone or teleconference.
The judge believes that, like the rest of society, it will take months or years to bring the courts back to pre-coronavirus operations, if that’s possible at all.
“It wasn’t hard to do what we’ve done,” Martinez said. “We had to act swiftly. I did not want to be the first in terms of federal districts to get slammed with the coronavirus.”
“I am not sure how we come back,” he said. “We are treading in areas where we have never been before.”
In King County Superior Court, the state’s busiest, many judges, lawyers and in-custody defendants still must show up in person. While criminal jury trials have been suspended until at least July 6, state courts are still required to hold arraignments, plea hearings, criminal motions and sentencing hearings for all in-custody defendants per emergency orders issued by state Supreme Court Chief Justice Debra Stephens.
“Superior court is very unique in that we are the workhorse of the court system. We provide so many essential services,” King County Superior Court Chief Criminal Judge Patrick Oishi said in a phone interview. “Other jurisdictions shut things down more quickly. We don’t have that luxury.”
Bringing back juries
As court leaders at both the state and federal level begin work on plans to ramp up their operations, a key question will be the future of jury trials. The law relies on precedent, and Martinez said there is no precedent in our lifetime for what has happened since the first-known coronavirus case in the U.S. was diagnosed in a Snohomish County man on Jan. 21.
But all of a sudden, Martinez said, that civic duty has the potential to be deadly, and those very efforts to protect and enforce the rights of some “are putting other people’s safety at risk.” Without a vaccine, the idea of putting 12 or more people in close proximity for days, weeks or, in some cases months would be dangerous, the judge said.
“We will never go back to holding trials like we have for the past 230 years until we can convince jurors that it is safe to come back to the courthouse,” he said.
Martinez’s current order on the federal court’s website states that jury trials will not resume before July 31. However, a letter dated May 26 from senior U.S. District Judge John Coughenour to some civil litigants states that it is the “considered opinion” of most of the judges that trials won’t resume before the end of the year, and that criminal trials will be given priority due to speedy-trial considerations.
In King County Superior Court, Presiding Judge Jim Rogers last month convened a 30-person work group of judges and attorneys to create guidelines to safely convene jurors when jury trials eventually begin again. Hearing criminal cases, where someone’s freedom is at stake, will be the court’s top priority, Rogers said, and judges assigned to the juvenile, civil and family-law departments will be enlisted to help clear the backlog. The court is also considering staggering start times for hearings and trials to reduce the potential for large gatherings.
“If we don’t get it right, our courthouse could be a hotbed for COVID and none of us want that,” Oishi said.
But when it comes to jurors, Rogers said, people facing health issues or financial hardships during the crisis will be less likely to serve, shrinking the already small pool of prospective jurors who respond to summonses.
Voir dire, when attorneys question prospective jurors before selecting a panel, could be moved to larger rooms outside the courthouse, and during trial, jurors could be scattered around a courtroom instead of being packed into a jury box, Rogers said. The question of where juries might deliberate, outside the close confines of jury rooms without endangering evidentiary chain of custody, remains open.
The vast majority of court activity, of course, is not a jury trial: There’s a continuous flow of arraignments, status hearings, motions and sentencings. Most cases are resolved by plea rather than a verdict — nearly 97% of federal cases and 85 to 95% at the state level.
To keep those broader court operations moving, it seems inevitable that technology will play a large role. Phone and video hearings aren’t new — the Western District of Washington has been at the forefront of a federal court experiment into cameras in the courtroom — and video appearances have been routine in some Washington counties for years. Last month, the pandemic forced the U.S. Supreme Court to livestream arguments for the first time in its history.
Rogers said King County Superior Court is now in the process of installing big-screen TVs in every courtroom. But while video and telephonic hearings may become more common in civil and family-law matters, he said it’s unlikely the King County defense bar will agree to replace most in-person criminal appearances with virtual ones.
And with good reason: Academic studies have shown video appearances tend to dehumanize already-vulnerable people and lead to significantly higher bail amounts being imposed, compared to criminal defendants who physically stand before a judge on similar charges.
Anita Khandelwal, the director of the King County Department of Public Defense (DPD), worries about the court pushing a system that prioritizes efficiency and expediency over the rights of people accused of committing crimes. She said she attended a recent video hearing and about a third of the time, the judge was inaudible.
DPD has attempted to collaborate with other court stakeholders on video hearings for non-substantive matters, like case-setting hearings, but the department opposes wider use of video in criminal cases.
“People should not be forced to accept virtual attorneys and virtual trials when they’re going to real prison or having their real children taken away,” Khandelwal said.
For years, the Federal Detention Center has tried to keep contraband cellphones out of the prison. Now, it is relying on cellphones for clients to communicate with their attorneys and relatives, often from their detention cells. There aren’t enough of them, said Seattle Federal Public Defender Mike Filipovic, and they aren’t private.
“Our single most difficult issue is being able to communicate with our clients,” he said. It can take up to two weeks for a client to gain access to a private telephone to talk to their lawyer.
‘Languishing in jail’
Meanwhile, many jails throughout the country have reduced their populations by booking fewer people for lower-level crimes, and in some cases releasing defendants who have only a few weeks or months left on their sentences.
Between the King County Jail in Seattle and the Maleng Regional Justice Center in Kent, the daily population now stands around 1,300 people, compared to 1,900 people in mid-March. Just over 90% of inmates in King County’s two jails are being held pre-trial, according to the King County Department of Adult and Juvenile Detention.
Dan Clark, chief criminal deputy for the King County Prosecuting Attorney’s Office (PAO), said prosecutors have held off on filing roughly 600 felony cases so as not to add to the jail population or overwhelm the court during the pandemic.
Federal public defenders have pushed for the “compassionate release” of inmates who might be more vulnerable to the virus as well as the release of inmates toward the end of their terms. So far, the court has granted several such releases in Western Washington and is looking at less-restrictive confinement for others, according to U.S. Attorney Brian Moran’s office.
Still, many people remain in federal and local jails, and more cases are being added to the docket every day: Between March 14 and May 1, King County prosecutors filed 631 priority criminal cases, a category that includes murder, assault, sexual assault, robbery, unlawful possession of firearms, burglary and vehicle theft.
Khandelwal remains concerned about pre-trial defendants who remain locked up.
“Our clients are simply languishing in jail and it’s still not a safe place,” Khandelwal said. “There’s no end in sight and no way to know when their rights will be adjudicated.”
The American Civil Liberties Union nationally had filed more than 75 COVID-19 detention-related lawsuits across the country as of mid-May, said Jeffrey Robinson, the deputy legal director for the national ACLU in New York and director of the Trone Center for Justice and Equality, which works on criminal-justice reform and racial justice.
“What we’ve done is horrific,” said Robinson, a Seattle attorney who says the pandemic has exposed the inhumanity of the country’s jails and prison systems, which have now trapped tens of thousands of people in what Robinson said amounts to a Petri dish of potential coronavirus exposure.
Robinson said thousands of inmates have already been released — more than 1,300 nationally from federal custody alone.
“Have you seen an uptick in crime?” he asked. “If all these people have come out of jail and crime is coming down, then ask yourself, ‘Why where they there in the first place?'”