California Chief Justice Tani G. Cantil-Sakauye on Monday issued a statewide order suspending all jury trials in California's superior courts for 60 days.
The unprecedented order followed more than a week of increasingly urgent calls from criminal defense attorneys, prosecutors and others who work in the courts for immediate emergency measures to prevent spread of the coronavirus in the state’s superior courts—including the release of many nonviolent jail inmates—and the temporary closure of court operations.
Alameda County Superior Court last week closed the doors to its 10 courthouses to the public, postponed trials and stopped processing all but the most pressing emergency filings and criminal arraignments.
In addition to closing the courts, Superior Court Presiding Judge for Alameda County Tara M. Desautels also ordered the release of 247 inmates serving sentences at Santa Rita Jail in Dublin, and another 67 inmates awaiting trial were released on their own recognizance.
Still, until this week’s order, other courts in the state continued to hold trials and operate with minimal safeguards.
“In other words, some courts are implementing variations of emergency procedures, while other courts are ‘business as usual,’” Alameda County District Attorney Nancy O'Malley, president of the California District Attorneys Association, wrote in a letter to the state’s 58 presiding judges on Saturday, prior to Cantil-Sakauye’s order.
O’Malley described the letter in which one prosecutor observed that on March 20 a courtroom held multiple defendants shoulder to shoulder. The defense attorneys were required to be inches apart from the accused to maintain confidential communications. Then, they came in close contact with the prosecutor and court clerk, and during the exchange of paperwork prepared in court.
In another case in Merced County last week, a judge declared a mistrial in a homicide trial with three defendants after an expected witness, a police officer involved with the investigation, tested positive for COVID-19.
The judge previously denied a motion for a mistrial due to the emergency, O’Malley wrote. Prosecutors required 43 witnesses in the trial, including an elderly man who used an oxygen tank, another traveling from the East Coast, and four others traveling from counties in California with high infection rates.
An arrest warrant was issued for the elderly man after he failed to appear on his subpoena out of fear for his health. Two additional witnesses from Los Angeles who were afraid to fly also failed to appear.
“This lack of equity and continuity in the treatment of criminal defendants and those who dedicate their lives to the administration of criminal justice raises concerns regarding equal protection under the law and now, most urgently, violates every health professional’s warning about the spread of the coronavirus,” O’Malley wrote.
The Merced County homicide trial was allowed to proceed under that county’s emergency declaration and the court’s emergency order because it permitted trials for in-custody defendants who did not waive their right to a speedy trial.
A week earlier, California Attorneys for Criminal Justice, the statewide association of criminal defense attorneys in private practice and public defenders, urged Cantil-Sakauye to take immediate action to help implement emergency procedures to protect jail and prison inmates from a potential outbreak behind bars.
Eric Schweitzer, president of the California criminal defense group, offered Cantil-Sakauye suggestions in a Friday, March 13 letter on ways the judiciary could help avert spread of the contagion to inmates trapped in close quarters.
Those included allowing arraignments via video conference, telephonic attorney appearances by attorneys, the release of pre-trial defendants held on non-violent charges on their own recognizance. The letter also called for the release of inmates awaiting hearings on no-bail probation violations, if the violation and underlying probation were based on non-violent and non-serious offenses.
Schweitzer wrote that it was crucial for the courts to put emergency procedures in place before court operations were reduced or required to “grind to a halt.”
“If this occurs with little or no notice, our clients awaiting their upcoming pre-trial dates will not have access to court hearings to expedite their due process rights, or to have their bail amounts reconsidered and released from custody,” he wrote. “As a result, they will languish in county jails without access to our judicial system and face a high potential for COVID-19 outbreak.”
In addition to her role as Chief Justice of the California Supreme Court, Cantil-Sakauye’s constitutional duties include serving as chair of the Judicial Council, the policymaking body of the state court system.
State law allows the chair of the Judicial Council to adjust or suspend court operations for individual courts at the request of presiding judges during judicial emergencies.
The following court day, March 16, Cantil-Sakauye issued the first of two advisories to the state’s presiding judges, providing guidance on seeking emergency orders in response to the coronavirus threat.
That prompted the presiding judges of several courts, including Alameda County Superior Court, to send emergency orders for Cantil-Sakauye’s approval.
Cantil-Sakauye issued a second advisory March 20, offering additional guidance to mitigate health risks inside the courts.
Monday’s emergency order is aimed at ensuring California courts—which remain open as "essential services" under Gov. Gavin Newsom's March 19 stay-home executive order—can meet stringent health directives, such as maintaining a six-foot distance from others, to curb the spread of COVID-19.
Said the Chief Justice: "Courts cannot comply with these health restrictions and continue to operate as they have in the past. Court proceedings require gatherings of court staff, litigants, attorneys, witnesses, and juries, well in excess of the numbers allowed for gathering under current executive and health orders. Many court facilities in California are ill-equipped to effectively allow the social distancing and other public health requirements required to protect people involved in court proceedings and prevent the further spread of COVID-19."
As for defendants’ due process rights, civil rights attorney DeWitt M. Lacy with the Offices of John L. Burris said he sympathizes with both sides on the issue, since he also is an attorney who doesn't want his health put in jeopardy unnecessarily.
"Courts across the country are struggling with ways to uphold individual rights to a speedy trial amid the coronavirus epidemic," said Lacy. "Violent persons who pose a significant danger to the public should be detained and prosecuted. But non-violent detainees may need to be released on their own recognizance on their promise to appear, with no cash bail."
A lot of people accused of non-violent offenses or less violent offenses might be willing “ forgo their right to a speedy trial if it means being around the courthouse and in lockup during this pandemic, even if they're confident they will be exonerated, Lacy said.
“They may not be so worried about a short jail sentence, as they are worried about a death sentence if they get coronavirus,” Lacy said. “In that case, they'd probably rather have justice delayed for a couple of months.”
County Lawyers’ Group Helping Members and Community Navigate New Legal Landscape Tiela Chalmers is getting used to a new way of doing things in this time of social distancing, or as she prefers to call it, physical distancing.
As Chief Executive Officer and General Counsel of the Alameda County Bar Association, Chalmers and her staff have injected some fun into the association’s offerings, hosting a virtual happy hour this week, and lining up plans for a remote game night and Netflix watching party. “We’re trying to be as creative as we can,” she said.
Of course, with all but essential businesses closed under the statewide lock-down, there’s also serious business at hand.
Its offices are closed, but the organization’s staff are working remotely, keeping in contact with the courts, pushing out new announcements to members, and talking with the governor’s office, clarifying what legal services are considered “essential.”
“Obviously, the first thing we’re doing is trying to keep folks as informed as we can,” Chalmers said.
The state and county shelter at home orders accelerated the organization’s development of online continuing education courses, which it now offers for free to its members and members of affinity bars.
It is also working on ways to offer remote pro bono legal services to the vulnerable during and after the coronavirus emergency, identifying issues that will likely come up for people, and assembling volunteer attorneys to answer a hotline.
“We’re building the airplane while we’re flying it,” Chalmers said.