Justice Delayed is Justice Denied: Criminal Courts During the Pandemic

Throughout the pandemic, many employment sectors were – rather surprisingly – easily able to adjust to remote work, with the practice of law being no exception: depositions, mediations, and civil evidentiary hearings, etc. appear to have readily adapted to a virtual platform, and able to proceed “business as usual.” Many attorneys have not stepped foot in a courtroom since March of 2020. However, COVID-19 has not affected all practice areas equally.

Enter the criminal court system, and the constitutional rights of criminal defendants.

A defendant in a criminal case’s speedy trial rights are guaranteed by the Sixth Amendment of the United States Constitution, and the California Constitution. California Constitution article I, § 15 provides, in relevant part, “[t]he defendant in a criminal cause has the right to a speedy public trial . . .
to compel attendance of witnesses in the defendant’s behalf, to have the assistance of counsel for the defendant’s defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. . .” These rights have also been codified in California Penal Code § 1382 – a.k.a., a criminal defendant’s “statutory speedy trial rights.” Penal Code § 1382 states: “The court, unless good cause to the contrary is shown, shall order the action dismissed in the following cases . . . in a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment . . . [or] when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later . . .” Aside from a criminal defendant agreeing to “waive time,” there is one other exception which allows prosecution to proceed in violation of these time requirements – good cause. For purposes of this article, that would be COVID-19.

Approximately every 30 days since March 2020, the Presiding Judge of the Superior Court of Contra Costa County has requested – and received – from the Chair of the Judicial Council, an additional 30-day extension of the time periods provided by Penal Code § 1382.

With the complete suspension of jury trials from mid-March 2020 through May 2020, and again from December 2020 through February 2021, it is understandable that some emergency relief was necessary, and a backlog of criminal trials was unavoidable. But here we are, more than 18 months past the first request for relief from trial deadlines, and criminal defendant’s constitutionally (and statutorily) protected speedy trial rights continue to be put on the back-burner. In addition, criminal defendants awaiting trial – and, therefore, presumed innocent – have been quarantined in jail, despite testing negative, and thereby missing their court dates. In August 2021, nine out of 10 modules at the West County Detention Facility were placed on a 10-day lockdown due to a massive COVID outbreak caused by jailhouse staff. The result? Mistrials, missed court appearances, and continuances beyond the statutory deadlines. Meanwhile, the world watches countless “Karens” spout nonsense about having a constitutional right to shop mask-less at Trader Joe’s. PRACTICE TIP FOR “KARENS:” To prevent an actual violation of your rights, this criminal defense attorney advises avoiding arrest/charges for assaulting greeters at grocery stores for enforcing the mask mandate.

Beyond the obvious court closures/suspension of jury trials and the effects on the continued backlog of criminal trials, this author wishes to be clear that the criminal courts have done everything in their power to safely conduct criminal trials during the pandemic. As of the writing of this article, and according to the most recent Request for Judicial Emergency Order, dated September 7, 2021, between March 1, 2021, and August 27, 2021, the court empaneled jurors in 124 criminal trials. In addition, there has been progress in reducing the backlog – according to the September 7, 2021 request, which sought (and obtained) additional relief for the period covering September 10 – October 7, 2021, 53 cases had their first (i.e., non-extended) last-day trial deadline, and 73 cases had previously extended trial dates. In the previous month’s request, those numbers were 80 and 95, respectively. However, citing significant resource constraints, on September 9, 2021, it was announced that, effective immediately, there would no longer be misdemeanor pretrial conference calendars; absent specially set (at the request of defense counsel) hearings for resolution, all misdemeanors will be set for trial at the outset, with a readiness conference (via email) two weeks prior. While it is unclear how this will play out exactly, it is all but guaranteed that more cases will go to trial, thereby increasing – rather than reducing – the already existing backlog and putting further stress on the criminal court system. Absent mechanisms to easily facilitate negotiation/resolution, whether through judicial intervention, or promoting meaningful conferences between the district attorney’s office and defense counsel, it is likely that the incentive to resolve, rather than go to trial, will be reduced.

So, who is to blame for the continued backlog? Defense attorneys, for setting cases for trial which technically “should” resolve through reasonable negotiations? Or, the district attorney’s office for failing to make reasonable offers? Or, the courts for continuing to seek extensions of trial deadlines? Perhaps a combination?

The stress on the criminal court system, and those who practice within it, cannot be understated. As a private practice criminal defense attorney, this author currently has approximately 130 court-appointed cases through the Conflict Program, in addition to privately retained cases. The backlog, coupled with continuing criminal offenses/charges being filed by the district attorney’s office, has caused the public defender’s office to “overload” massive amounts of cases, where defendants have a constitutionally protected right to counsel and would ordinarily qualify for their services, to the Conflict Program for appointment.

Where does the criminal court system go from here? While efforts have been made – with some success – to reduce the backlog of criminal jury trials, if continued relief from Penal Code § 1382 deadlines is sought/granted, coupled with the new misdemeanor trial setting policy, the backlog will not only persist, but likely grow in light of these changes. Unless faced with true Penal Code §1382 deadlines/dismissals, the tension continues with the district attorney’s office having little motivation to make more reasonable offers to resolve, and defense attorneys digging in their heels and pushing for trial.