BOSTON – Courthouses shuttered. Thousands of trials on hold. Legal deadlines pushed.
The coronavirus pandemic has crippled the U.S. legal system, creating constitutional dilemmas as the accused miss their days in court. The public health crisis could build a legal backlog that overwhelms courts across the country, leaving some defendants behind bars longer, and forcing prosecutors to decide which cases to pursue and which to let slide.
“Everybody is scrambling. Nobody really knows how to handle this,” said Claudia Lagos, a criminal defense attorney in Boston.
Judges from California to Maine have postponed trials and nearly all in-person hearings to keep crowds from packing courthouses. Trials that were underway — like the high-profile case against multimillionaire real estate heir Robert Durst — have been halted. Some chief judges have suspended grand juries, rendering new indictments impossible. Other have allowed them to sit, though six feet apart.
Prosecutors may have to abandon some low-level cases to keep people from flooding into the legal system.
Many judges are holding hearings by phone or video chat to keep all cases from grinding to a halt. Other courts are stymied by outdated technology. The clerk for the the 9th U.S. Circuit Court of Appeals, Molly Dwyer, likened the logistical challenges to “building the bike as we ride it.”
Judges have asked for emergency powers to delay trials longer than the law generally allows and extend key deadlines, like when a defendant must initially appear in court.
That could keep people locked up longer, exposing them to unsafe jail conditions, and violate their constitutional right to a speedy trial, defense lawyers say.
“We shouldn’t be creating mechanisms in the current crisis to keep people in jail longer. The jails are just tinderboxes waiting for the virus to take off,” said Jeff Chorney, deputy public defender in Alameda County, California. Courts there now have seven days instead of 48 hours to hold arraignments, during which a defendant is often appointed a lawyer and can enter a plea.
The pandemic has shuttered nearly every aspect of everyday life as the death toll mounts and more states impose strict stay-at-home orders. There are nearly 400,000 cases and more than 12,000 deaths in the U.S., according to a tally kept by Johns Hopkins University.
Still, coast-to-coast disruptions of the courts system are unprecedented.
In 2005, Hurricane Katrina forced courts in New Orleans to temporarily close. The suspension of legal deadlines after the natural disaster left thousands languishing behind bars for months without formal charges, attorneys say. Lawyers there fear a repeat.
“On a regular day, without a crisis like Katrina and COVID, you can imagine people getting lost in a system like this,” said Alanah Odoms Hebert, executive director of the ACLU of Louisiana. “There will be a lot folks who fall through the cracks.”
No civil litigation is getting done. U.S. District Judge Steven Seeger in Chicago chafed at a recent request for an emergency order barring the alleged misuse of elf and unicorn drawings. “The world," he said, "is facing a real emergency. (The) plaintiff is not.”
The COVID-19 disruptions are causing widespread confusion with prosecutors and defense attorneys as they struggle to file documents, get matters heard in courthouses operating on skeleton crews and share information with jailed clients while maintaining social distancing.
Lawyers for Elizabeth Holmes, head of the blood-testing startup Theranos scheduled to be tried this summer for allegedly defrauding investors, asked a California federal judge to also exempt them from the orders. They said the restrictions made witness preparation and serving subpoenas difficult. The judge refused.
Attorneys are wary of visiting their clients in jails for fear of contracting the virus or spreading it behind bars. They rely on phone calls, which in some places are recorded, limiting what they can say.
"You have to sort of chose between your safety and your client's safety ... or their constitutional rights. It’s a really impossible situation," said William Isenberg, a Boston defense attorney.
The haphazard operations could lead defendants to later challenge convictions, even if their lawyers did the best they could during the virus-related tumult.
Courthouse chaos may worsen when the shutdowns end, as judges try to return to old cases while fielding a burst in new cases. A flood of lawsuits linked to COVID-19 will add to the logjam.
“The courts are looking down the barrel of a real serious bottleneck,” said Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “I don’t think anybody has figured out what they’re going to do.”
Crime victims are also forced to wait. In Minnesota, the virus has postponed the federal trial of an Illinois militia leader accused of being the ringleader in the 2017 pipe bombing of a Minnesota mosque. Michael Hari’s trial was already postponed once. Now it’s scheduled for late July.
Mohamed Omar, executive director of the mosque, said community members want to see quick justice, but that he understands the need for a delay.
“The safety of our community and those that are vulnerable are more important to us now more than any other thing,” he said. “This is bigger than all of us.”
For most people, the new coronavirus causes mild or moderate symptoms, such as fever and cough that clear up in a few weeks. For some, especially older adults and people with existing health problems, it can cause more severe illness or death.
Tarm reported from Chicago. Associated Press reporters Curt Anderson in Miami, Mike Balsamo in Washington and Amy Forliti in St. Paul, Minnesota contributed to this report.
This story has been corrected to reflect that Hurricane Katrina struck in 2005, not 2004.