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June 23, 2020

An NYC window into COVID's disruption of the administration of criminal justice

The New York Times has this lengthy new front-page article under the headline "Pandemic Pushes New Yorkers Into Legal Limbo."  The piece merits a full read as just one version of so many stories about how COVID is echoing through criminal justice systems.  Here are some excerpts:

The coronavirus outbreak is putting extraordinary stress on New York City’s judicial system, forcing lengthy delays in criminal proceedings and raising growing concerns about the rights of defendants.

Since February, the backlog of pending cases in the city’s criminal courts has risen by nearly a third — to 39,200.  Hundreds of jury trials in the city have been put on hold indefinitely.  Arraignments, pleas and evidentiary hearings are being held by video, with little public scrutiny.  Prosecutions have dropped off, too, as the authorities have tried to reduce the jail population.

Three months into the crisis, the city’s once bustling courthouses are barely recognizable.  Their spacious lobbies and halls, formerly filled with people, are nearly empty, and in the courtrooms clerks in surgical masks tend to virtual hearings on giant video screens.  Two centuries of face-to-face judicial traditions have either been cast aside or moved online....

Two weeks ago, the state courts in New York City took a first small step toward physically reopening: Judges started returning to their chambers, though they are still holding court virtually.  No one has quite figured out yet how to bring the public back safely to New York City courthouses, nor how to resume trials and state grand jury hearings. Officials said the challenge of balancing public health and the requirements of the law is likely to persist for some time.  “It’s a situation we’ve just never seen before,” said Melinda Katz, the Queens district attorney....

The halt on jury trials, while highly unusual and difficult for defendants, has not yet reached a crisis point.  Even under the best conditions, it can take years for cases to move from arrest to trial, and only about 5 percent ever get that far; most end with a plea bargain.  Still, jury trials are the heart of the justice system, and state court officials face significant hurdles as they resume.  “I can’t tell you we have a precise plan,” said Judge Lawrence Marks, the state’s chief administrative judge. “It will be one of the last phases.”

Unlike other court proceedings, jury trials require people to hear evidence together and then deliberate in close quarters.  “The whole idea of ‘12 Angry Men’ screaming at each other over a telephone, over a Zoom network, would be ridiculous,” said one defense lawyer, Joel Cohen.

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.  Certain precautions that are being considered may raise legal issues.  “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.  “Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.  “If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books....

People who are arrested no longer set foot inside a physical courtroom to hear the charges against them in an arraignment. They now sit in a windowless booth in a courthouse cell, looking into a camera and speaking into a microphone on the wall.  Felony arraignments have fallen by 50 percent this spring compared to last, largely because far fewer people were arrested in the first weeks of the pandemic.  That has made the transition to video somewhat easier, though not any faster.  In the months after the courts moved to a virtual system, the average arrest-to-arraignment time has increased by as much as three hours.

Before the pandemic, lawyers generally did most of the talking in court. In the video hearings, defendants, no longer in the same room as their lawyers, have been more prone to sudden and sometimes incriminating outbursts....  Tina Luongo, chief criminal defender for the Legal Aid Society, mentioned another challenge: The inability to see a witness's body language and quietly confer with the defendant seriously hampers defense lawyers. “We’ve got to figure that out,” she said. “When we’re all on one Skype link, how do I talk to my client in a confidential way?”  Before hearings begin, lawyers can meet virtually with clients in private Skype conference rooms, but the system is not foolproof....

Perhaps the biggest headache for the state courts has been the inability to convene grand juries, which given their size — they are usually composed of 16 to 23 people — have been unable to gather safely. Grand juries have traditionally acted as a citizen’s check on overzealous prosecutions by scrutinizing evidence and approving formal charges. They are also used by state and federal prosecutors to conduct long-term investigations.  Without them, the rights of both defendants and crime victims are less assured....

Unable to convene grand juries, the city’s five district attorneys are turning instead to preliminary hearings, which have not been conducted in New York in decades.  At the hearings, judges hear witnesses, consider evidence and decide if prosecutors’ charges are warranted. Like everything else these days, these hearings are being held by video....

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis.  Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip.  And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.  But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Disappointingly, this piece does not address sentencing issues and challenges in state or federal courts.  As always, I welcome comment from readers about their recent COVID-shaped experiences in that arena.

June 23, 2020 at 11:20 AM | Permalink


Seems like you could indict a ham sandwich over Zoom. Trial jury, absolutely not except in civil cases with the parties' consent.

Posted by: Jason | Jun 23, 2020 8:10:28 PM

I'm a trial public defender in New York City. This piece, while interesting, misses the real story. For misdemeanors and un-indicted felonies in Manhattan, the "emergency" part that is handling cases is extremely unresponsive and it's virtually impossible to get anything done (so most have given up on trying). The chief judge has repeatedly claimed the DA's office is going to be more reasonable, but there's no buy in from the line prosecutors or their supervisors so everything continues to back up with no end in sight. Since you can't call a DA's bluff and they have no incentive to investigate their cases (speedy trial is suspended!), nothing moves.

For indicted felonies where bail is set and the family cannot pay, the powers that be in the courts are effectively giving prosecutors carte blanche to ask for indefinite extensions so that they do not have to hold a "virtual" preliminary hearing. Normally you have to get an indictment within 6 days to hold someone in. Is it really so unreasonable to ask the government to establish there's reasonable cause that a felony was committed before incarcerating people during a pandemic? Values that our society claims to hold dear are being undermined, and no one is really paying attention.

With that said, NYC has done a better job than most of releasing low level and non-violent offenders to reduce jail crowding.

Posted by: Public Defender | Jun 24, 2020 9:41:55 AM

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