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Health & Habeas: A Constitutional Crisis Is Quietly Brewing Amid Coronavirus Chaos

Lawrence J. Zimmerman
By R. Robin McDonald and Angela Morris, Daily Report Online

One day before alarms over COVID-19’s spread prompted the chief judge of Georgia’s largest judicial circuit to curtail court operations, Atlanta attorney Georgia Lord sent him an urgent message.

Lord was worried. Fulton County’s superior and state courts were continuing to pack hundreds of lawyers, their clients, witnesses and potential jurors into crowded calendar calls and jury assembly rooms, often for hours at a time. Lord urged Superior Court Judge Christopher Brasher to take “immediate significant steps” to prevent court operations from becoming “a launching pad” for the coronavirus’ potential spread.

And she’s not alone in her concern.

Lawyers who are used to spending hours in packed courtrooms and on courthouse security lines across the country are now sounding the alarm. In jurisdictions where judges haven’t curtailed operations, attorneys worry about making in-person appearances amid the growing health threat.

But in other parts—where judges have shuttered state and federal courts—a different concern: constitutional issues arising from the delays.

On one hand, attorneys are relieved. They say court closures minimize their own exposure to the coronavirus. But on the other, a gnawing worry tempers that relief. Attorneys say the suspension of jury trials, legal deadlines and statutes of limitations will harm—perhaps fatally—clients incarcerated in often overcrowded, less than sanitary jails and prisons.

‘Serious and Urgent’

Atlanta criminal defense lawyer Drew Findling called the question of what to do about people in custody “a staggering issue” and “a ticking time bomb.”

And in the Northern District of California, the issue appeared foremost in the mind of at least one federal magistrate judge, who invited criminal defendants to ask him to reconsider his pretrial-detention determinations.

U.S. Magistrate Judge Nathanael Cousins issued a new standing order as six Bay Area counties were set to implement “shelter in place” policies to slow the spread of coronavirus.

“This standing order sets forth the procedure for any request to reopen a detention hearing on the basis of the physical and mental condition of the accused,” wrote Cousins, noting that the order only applied to his own cases. ”This public health crisis is serious and urgent. Counsel should not delay in evaluating whether any defendant should have his or her detention hearing reopened,” he wrote.

In Texas, Supreme Court Chief Justice Nathan Hecht, who is also president of The Conference of Chief Justices, said he is “completely sympathetic” with lawyers’ concerns about overcrowded hearings.

“Courts have to try to make sure that people that are participating in hearings—lawyers, court staff, parties, the judge himself—are protected,” Hecht said.

‘Just Want to Get Out of Jail’

On Tuesday, Atlanta lawyer Findling called on prosecutors and public defenders to begin jointly consulting with judges to release misdemeanor and non-violent felony offenders unable to post bond on signature or partial-payment bonds.

And Lawrence Zimmerman, president of the Georgia Association of Criminal Defense Lawyers, said he has been on the phone since March 13 with judges, prosecutors and lawyers across the state “to get people out of jail as quickly as possible in the most reasonable and orderly fashion.”

At the same time, Zimmerman said, some defense lawyers are worried their clients are taking plea deals “because they are under arrest and just want to get out of jail and be with their loved ones.”

But jurists, too, appear to be overwhelmed.

A March survey of 316 judges by The National Judicial College—a 12,000-member, national educational institution for judges—found that nearly 60% of respondents said they do not feel adequately prepared to make decisions related to the coronavirus. Survey respondents said their concerns revolve around weighing personal rights against public safety, ensuring that courts continue operations, deciding whether to loosen evidence rules, and more.

One respondent said judges aren’t getting enough information or guidance from the leaders of their state judiciary. Other judges are worried that they don’t know how to address questions involving convictions, bond release and other custody issues, if jail populations become infected. The judges surveyed were also keenly aware that their courts frequently come into contact with vulnerable populations without good access to health care, and that the virus may easily spread to court staff and juries.

Civil Courts, Too

The questions over process during a pandemic extend beyond criminal to civil matters as well.

For instance, a Gwinnett County state court judge in Georgia on Tuesday suspended an ongoing civil jury trial. The judge had initially refused to do so, even after jurists in half the state’s 49 judicial circuits suspended operations, or closed their courthouses.

Defense lawyers in that ongoing products liability case had first sought to suspend the trial Sunday night, after Georgia Supreme Court Chief Justice Harold Melton declared a statewide judicial emergency March 14.

But Judge Emily Brantley denied their request. When defense lawyers filed an emergency mandamus petition with the state Supreme Court on Monday, and the plaintiffs rested their case, the judge reconsidered her stance.

Brantley staff attorney David Abercrombie said Tuesday that despite Melton’s emergency declaration, “It appeared the court [Brantley] still had discretion to continue the jury trial to conclusion.”

“We brought the jurors in Monday, and they all unanimously agreed to continue. And we brought in a cleaning crew to disinfect the entire courtroom, jury room and deliberation areas,” he said. Brantley also did her own legal research Monday night about the growing viral threat “and notified us early this morning [Tuesday] that she would be staying the case,” Abercrombie said.

Meanwhile, judges acknowledge uncertainty in the virus’ wake.

In Tulsa, Oklahoma, U.S. District Judge Claire Eagan, the chairwoman of the executive committee of the Judicial Conference of the United States, on Tuesday called the situation “very fluid.”

“We have a unique role because we have to uphold the rule of law and keep the courthouses open,” she said. “But we have to protect the public and our employees.”

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