Steven Hopwood, a 61-year-old man with a history of pneumonia and scarring on his lungs, was all but set to get out of jail this week. He planned to plead guilty to bail jumping charges at his scheduled court hearing on Thursday in Lavaca County, and his attorneys expected he’d be able to go home and get probation.
But as the new coronavirus continues to spread across Texas, district judges in the rural courthouse have largely closed up shop. Hopwood’s hearing was canceled, leaving him behind bars indefinitely. The county’s chief public defender, Jessica Canter, said the district court judge, who travels between other small counties in the area, appears in Hallettsville only once or twice a month, and dockets were cleared Wednesday until mid-April.
“Now what?” she said.
Her office has filed a motion to lower Hopwood’s bail amount — he’s been in jail since January on two $50,000 bonds for allegedly missing court hearings in an underlying harassment case — and release him from jail due to the “lethal threat of COVID-19,” the disease caused by the new coronavirus. But it’s not clear what will come of the request. Hopwood told a defense investigator in jail on Wednesday that he was scared.
“I fear getting this virus in here, because I will probably die in this jail,” he told the investigator.
The rapidly spreading coronavirus has killed thousands worldwide — including three in Texas — and significantly slowed the churning of Texas courts, which typically dispose of nearly 9 million cases annually. Jury trials are paused indefinitely across most if not all of Texas, and the plea deals or bench trials that could speed individuals’ release from jails are on hold in many places, too.
Last week, courts were authorized to use teleconferencing and directed to prioritize “essential” hearings — like child removal orders and initial hearings for people recently booked into jail. Judges were told more directly Thursday morning they “must not” conduct non-essential proceedings in person if doing so would conflict with local, state or national directives about limiting group size. Multiple Texas cities have prohibited gatherings of more than 10 people — making many proceedings impossible.
That will bring major delays in cases like Hopwood’s, which defense attorneys consider urgent — and it leaves people who have not yet been convicted of a crime stuck in jail, where cramped and often unsanitary conditions increase the risk of contracting the virus.
Public defenders in rural and urban regions are pushing to get more low-level defendants released from jail on no-cost bonds as they come into the jail or to allow hearings in some form for people who are trying to lower their bail amount or want to plead guilty and get out of jail either based on the amount of time they’ve already served or on probation.
Those efforts, depending on where in the state you’re standing, are either being met by willing prosecutors and judges, or pushback, according to the defense lawyers.
“There are some prosecutors who are softening up on [no-cost] bonds, and there are some law enforcement agencies that are indicating that they’re not going to be arresting the nonviolent misdemeanors,” said Abner Burnett, director of Texas RioGrande Legal Aid’s public defender division, on Tuesday. “Then there are some judges who are saying they’re just, by God, they’re not letting people out because they broke the law.”
He said a plea deal isn’t always the best route, either, and mentioned — without naming names — he’s aware of at least one prosecutor who tried to use fear of catching the virus in jail to sway a defendant to take the offer already on the table.
Citing a disaster declaration from the governor, the state’s two high courts sent out an emergency order last week instructing Texas courts that they can “modify or suspend any and all deadlines and procedures.” The order allows courts to use video-conferencing for proceedings and empowers them to extend statutes of limitations in civil cases for up to 30 days after state’s disaster declaration lifts.
But jurisdictions across the state have approached the crisis differently. Most if not all have halted jury trials, according to David Slayton, who leads the Office of Court Administration. Still, as recently as the start of this week, some courts were still open for business, moving through their dockets as they would have before the pandemic swept through the state, according to attorneys.
In Harris County, criminal judges individually began limiting their dockets and appearances or canceling them altogether last week. Combined with a push from local law enforcement to keep jails as empty as possible by limiting arrests, judges and attorneys are working out remote plea deals and courts are lowering bail amounts to release more people behind bars, according to the county’s chief public defender.
“It’s a little bit scattered,” Alex Bunin said on Tuesday. But “there is a lot of movement to kick people out of the jail.”
Even in less progressive regions, a new urgency to reduce jail populations has sometimes led defense attorneys to more aggressively push for their clients’ release before trial, prosecutors offering more lenient plea deals and judges signing off on more no-cost bonds for nonviolent offenses. Multiple defense attorneys wondered if the move may be a silver lining to the fatal virus.
“Everybody’s law and order until they’re risking their lives to make sure we’re tough on crime,” said Burnett. “Then they’re going to be a bit more lenient. … I’m fine with that being a fringe benefit.”
For many judges and officials, the best point of reference for the current disruptions to the court system is Harvey, the catastrophic hurricane that dumped more than 50 inches of rain on Houston in 2017. After the storm flooded the county’s criminal justice center and halted jury trials, courts were out of commission for about three months.
They still haven’t fully recovered from the storm, Slayton said.
“That’s the reason why we’re trying hard to find a solution that would allow courts to continue, to have remote appearances in the midst of this,” Slayton said. “We can’t do that [again]. ... It would be very difficult to uncover from that.”
At other levels of Texas courts, the virus may prove less disruptive. Courts of appeals, for example, can do much of their work remotely, Slayton said.
Both the Texas Supreme Court and the Texas Court of Criminal Appeals have postponed their own oral arguments amid the outbreak, and the Supreme Court announced on Wednesday that its building would close to the public, along with the rest of the Capitol complex.
The Supreme Court has empowered 31 judges in the state to enforce quarantine orders if individuals refuse to comply, but as of March 16, there had been no challenges to quarantine orders, according to court staff.
Slayton said he’s confident that most if not all court proceedings other than jury trials will ultimately be able to proceed remotely. Some judges have already begun using the remote teleconferencing platform Zoom.
District Judge R.K. Sandill, who hears civil cases in Harris County and has already held successful hearings using Zoom video calls, said the platform could remain a helpful tool for judges even after the outbreak subsides.
“I don’t see any major obstacles to it,” he said. “Everything is happening real-time, contemporaneous, there’s no lag.”
Still, some criminal justice reform advocacy groups and defense attorneys expressed concern that remote hearings infringe on the rights of the accused. Defense attorneys could lose out on the ability to privately confer with their clients, review necessary material from the prosecutor or approach the bench, if needed.
In civil and family courts, judges said they’re pushing to resolve matters as quickly as possible.
“We’re trying to get as much done remotely now as we can, because we don’t have spare time later,” said District Judge Emily Miskel, who hears civil and family cases in Collin County. Miskel said she has in the past averaged 1.75 trials per day — and that she’s already had to reschedule trials for days in May that were previously booked.
Catching up will be difficult, she said.
“It’s a snake eating an elephant — I don’t know what we’re going to do, but we’re going to do our best,” Miskel said.