With the goal of keeping people out of courtrooms and jails to slow the spread of the novel coronavirus, a state Supreme Court emergency order issued Wednesday evening postponed hearings for out-of-custody criminal defendants and provided a mechanism to expedite the release of some jail inmates whose health is especially vulnerable.
In an order issued last week, Chief Justice Debra Stephens authorized trial-court presiding judges to modify or suspend court rules to address the public health crisis. Presiding judges in King, Snohomish and Pierce counties suspended all criminal jury trials until at least April 24.
But not all courts followed suit, so Stephens’ Wednesday order also requires all civil and criminal jury trials pending in superior courts across the state to be pushed back until April — and provides a provision for a future emergency order to extend that time frame if necessary.
“[T]he increasingly aggressive spread of COVID-19 across Washington requires a uniform, coordinated response from Washington courts to prevent further outbreak and to maintain consistent and equitable access to justice,” the order says.
It was the lack of consistency across courts that prompted a task force of criminal defense attorneys to request that Stephens issue Wednesday’s emergency order. In a Monday letter addressed to Stephens, the task force, which includes the Washington Association of Criminal Defense Lawyers and the King County Department of Public Defense (DPD), wrote that “members of the public continue to congregate in groups well over 50 persons in our courtrooms.” They said many courtrooms “are too cramped to allow for any social distancing,” thereby contravening public health requirements to slow the virus’ spread.
“Consequently, our criminal courts are directly contributing to the spread of COVID-19 and seriously jeopardizing the safety and health of criminal defendants, all attorneys, all court staff, all jail staff, all judges and all members of the public they interact with, inside and outside the courtroom,” the letter says. “Choosing between safeguarding one’s health and coming to court are untenable choices for all actors in our criminal justice system.”
In King County, the biggest dispute centered on out-of-custody hearings. Though Superior Court Judge Jim Rogers had previously ordered that all out-of-custody matters, including arraignments, could be conducted by phone — something he said many defendants have taken advantage of to avoid in-person appearances — DPD countered that many indigent clients don’t have access to phones, require interpreters, or were afraid not to appear in person and risk having a bench warrant issued for their arrests, DPD Director Anita Khandelwal said Wednesday.
Even before the Supreme Court’s emergency order, Khandelwal said DPD had been asking for all out-of-custody hearings to be postponed until at least April 24.
“The thing we’re struck by is it took the Supreme Court to intervene for the King County Superior Court to do the right thing,” DPD spokeswoman Leslie Brown said of the chief justice’s order to push back out-of-custody hearings until April.
But Rogers expressed frustration with DPD, saying judges’ efforts to reduce the number of people appearing in court and a suggestion to move out-of-custody hearings to a larger courtroom to allow for social distancing were objected to by defense attorneys. He said Thursday he had to order defense attorneys back to work after DPD unilaterally announced the agency wouldn’t assign attorneys to new out-of-custody clients and wouldn’t staff the involuntary treatment court, which threatened to crash hospital emergency rooms with mentally ill patients.
Brown refuted Rogers’ characterization, saying even before the outbreak, DPD had reached its capacity to handle new felony cases that have increased nearly 30% since late summer.
In a letter sent to Rogers and the chief criminal judges in Seattle and Kent on March 10, Khandelwal wrote: “This month and for the six months preceding, felony filings in Seattle have dramatically exceeded predictions – so much so that both DPD and our assigned counsel panel are unable to responsibly continue accepting new assignments.”
As for clients facing involuntary treatment, Khandelwal said 25% of DPD attorneys who handle those hearings are now on quarantine after being exposed to the virus during client meetings in hospitals. She said Rogers issued an emergency order, requiring treatment facilities to provide attorneys with clients’ electronic records and also providing attorneys with protective gear when meeting with clients in hospitals.
In instances when out-of-custody defendants have failed to appear, either by phone or in-person, Rogers said their absences have been noted but for the most part, prosecutors haven’t asked judges to issue bench warrants.
“There have been very few bench warrants issued in the last two weeks,” he said.
Per Stephens’ order, all criminal hearings for defendants who are in custody in county jails awaiting trial are also postponed until April 24 — except for first appearances, when a judge decides whether probable cause exists that someone committed the crime he or she is accused of, usually within 24 hours of arrest; arraignments; plea hearings; criminal motions; and sentencing hearings. The order gives priority for courts to hear motions for pretrial release and bail modifications and plea and sentencing hearings that result in the anticipated release of a defendant from jail within 30 days of the hearing.
According to Stephens’ order, the COVID-19 pandemic amounts to a presumed “material change in circumstance” for in-custody defendants who are vulnerable or at risk of contracting the virus.
Prosecutors and defense attorneys are now reviewing the county jails’ inmate rosters and are filing joint motions for the release of certain inmates booked for nonviolent offenses, Rogers said.
“We’ve let most nonviolent, pretrial defendants out (of jail) already,” Rogers said, adding most people arrested for nonviolent crimes since the outbreak began “were never incarcerated to begin with or were released very quickly.”
He said the court is prioritizing bond hearings for vulnerable in-custody defendants, especially those with underlying health conditions such as diabetes and lung and heart disease, and judges started hearing those motions Thursday afternoon. Rogers anticipated attorneys will file another 100 bond-modification motions in the next couple of days, with judges expected to hear many of them every day next week except Friday, which is set aside for sentencing hearings.
“We still have to consider public safety,” and people awaiting trial on violent offenses such as homicide, rape and armed robbery will not be released, he said.
It is unknown how many people have been released from the King County Jail in downtown Seattle and the Maleng Regional Justice Center (RJC) in Kent since the outbreak began. Phone and email messages left for the Department of Adult & Juvenile Detention on Thursday were not immediately returned.
According to the department’s website, all public visits to the jails have been canceled and inmates who are at higher risk for serious complications should they contract the virus, including those over age 60 and those with underlying health conditions, have been moved to a housing unit at the RJC.
In neighboring Snohomish County, Prosecutor Adam Cornell — citing information provided by the jail — said the inmate population is down 25% and releases now outnumber bookings 2 to 1.