The principle foundation of our constitutional republic is the rule of law. During a time of declared national emergency or otherwise the rule of law must remain immuted. Whether one believes that a viral contagion constitutes an emergency, the individuals’ rights to freedom of speech and free association amongst others shall not be curtailed absent a compelling governmental interest. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In the wake of the SARS CoV-2 / Covid-19 panic various governments have instituted ad hoc quarantine orders or curfews purportedly to curtail person-to-person contact or potential passing of the virus. Additionally, some public places have been closed or restricted.
Some public spaces, such as streets and parks, are known as “traditional public forums,” which means that they generally are open to all people to express themselves by speech-making, demonstrating, or leafleting, and the like. The public fora expression is the essence of the right to free speech. Access to the public arena may be restricted “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.”[fn1]
Broad, sweeping prohibitions of public gatherings or the closing of public spaces may run afoul of constitutional protections. The U.S. Department of Justice [DOJ] was aware of this potential which it expressed during a symposium held in 2006 to address the issue of maintaining rule of law during a forthcoming SARS pandemic.[fn2]
The DOJ was cognisant of the likelihood that politicians would overreact and violate the rights of business owners or individuals. The DOJ recommended that states develop plans to ensure that courts remain functional during a viral pandemic panic so that lawsuits by business owners or individuals could be heard.
In defending against these suits the various governments will claim that they were acting “in good faith” under the auspices of a “rational belief” that a health emergency existed. Thus, during bona fide health emergencies of finite duration governments may invoke emergency orders which suspend constitutional rights.[fn3]
The SARS CoV-2 pandemic is not of a finite duration like the aftermath of a hurricane in which there is a limited time in which the public may be endangered by untreated effluent or decaying bodies.
In filing suit against a state, its governor, law enforcement agencies and any others involved in a deprivation of rights the movant would claim that there was not a rational basis for the restrictions nor were they made in good faith.
The “good faith” claim can be shot down easily by the exceptions made to the quarantine rules. Many governors have made exceptions for “essential” business services such as sale of liquor or the daily warehousing of children at those centers.
The pivotal question becomes, “Do you have a good faith belief that child daycare centers are less likely to be a conveyance for a virus than a golf course?” Anyone who has observed groups of children in action know that they are masters at spreading contagions. At least much more so than old guys wearing plaid trousers while strolling across a vast manicured lawn.
The next attack is on the restrictions being necessary. That would be that the government had a “compelling interest” for suspending constitutional rights.
If the SARS CoV-2 pandemic would endanger or harm a vast portion of the population, despite individual protective actions, if left unconstrained then the government could meet its burden. Keep in mind that the well-regulated roadways, accessible to a particular qualified and licensed population, during normal operation, result in an annual death toll exceeding 30,000 people per year. That rate occurs during times of intense regulation. But could the SARS CoV-2 have killed many more if not for the panic response and constitutional suspensions?
Comparative circumstances
One of the difficulties in comparing action to innaction sequent to the outcome in a real world setting is that the events cannot be replicated. This makes scientific analysis difficult at best. However, when a corollary event is present in the contrary state then an objective comparison is more likely to produce an apt result.
So, while we cannot return to a time when the SARS CoV-2 virus was incipient and take no inhibitory action, we can look to a similar virus which propagated concurrently, and previously, to study the impact of the action taken. That is to say, we can observe the historical progress of a similar virus in a previous season and that same virus as it progressed during the current season while the inhibitory measures for SARS CoV-2 were in place which have the same inhibitory effect. For this the prime candidate is the Influenza virus.
The question for analysis then becomes; What effect did the quarantine measures for SARS CoV-2 have on the proliferation of the Influenza virus during the 2019-2020 season as compared to previous seasons when the same inhibitory measures were not in place?
The answer to that question will provide a basis for an approximation to the directly unanswerable question; What would have been the infection rate for SARS CoV-2 if inhibitory measures such as quarantines had not been enacted? That is a question which may not be resolved easily as the people holding the keys to the answer are those who will be defending themselves in these forthcoming lawsuits.
Falsified numbers
Back in March I was discussing the irrationality and panic responses to this novel SARS virus with a statistician. On point we discussed the legal and compensatory liabilities of the states enacting provisions depriving businesses the opportunity to lawfully operate as well as constitutional deprivations of citizens.
As I have noted, the measure for the efficacy of quarantine and other purported inhibitory actions imposed would be the proliferation of Influenza during the same period. So, how does the government substantiate itself and relieve itself of billions of dollars in liabilities?
Although we are not conspiracy theorists the answer was clear to us. The number of deaths attributed to the SARS CoV-2 virus would need to be inflated while concurrently the number attributed to Influenza would have to be suppressed. That would be a sure way to show, at least statistically in a court of law, that the inhibitory efforts were effective at reducing the spread of Influenza and thus the potential cases of Covid-19 were proportionally reduced. Thus the defendants would meet the “compelling governmental interest standard” for curtailing constitutional liberties.
Expect to see a corporation with deep pockets making public records request for death certificates by the thousands and then spending weeks deposing coroners and pathologist with questions like, “Exactly what tests or procedures did you perform to determine that this individual died as a proximal result of infection by the SARS CoV-2 virus and not any other cause?”
A final note for thought. The World Health Organization [WHO] in 2018 published a paper detailing the likelihood of a future SARS pandemic and its recommendations on how to curtail its spread.[fn4] Additionally, WHO made recommendations on how governments could avoid fomenting panic. Various state governments and the federal government in the United States acted in a manner contrary to those recommendations.
Footnotes
[1] Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 800 (1985)
[2] Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts, March 2007 - Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice.
[3] Smith v. Avino, 91 F. 3d 105 - 1996
[4] World Health Organization; 2018 [Cited 2020 March 24] Managing epidemics: key facts about major deadly diseases ISBN 978-92-4-156553-0. Available at: https://www.who.int/emergencies/diseases/managing-epidemics-interactive.pdf
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Sunday, April 19, 2020
SARS CoV-2 / Covid-19 Quarantine Efficacy and Civil Rights
Monday, April 6, 2020
Demanding a Speedy Jury Trial during SARS CoV-2 and Covid-19 outbreak
“Courts are not like ordinary businesses, as they must continue operating to maintain the rule of law and ensure an orderly society under any circumstances. Criminal laws must continue to be enforced, personal rights and liberties must continue to be protected, cases must be adjudicated, and controversies resulting from pandemic conditions must be addressed.” [fn1] * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In this time when there is a slight increase in the likelihood of being infected by a contagion and there is a disproportional high rate of paranoia and social avoidance, is the right to a speedy jury trial absolute?
In criminal cases the right to a speedy trial is found under the Sixth Amendment to the U.S. Constitution.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The federal Speedy Trial Act provides that; “In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.”[fn2]
States generally have a similar speedy trial act which delineate the particulars for the right to a speedy trial within their respective state courts. Indiana has Rule 4 of the Indiana Rules of Criminal Procedure which provides, in relevant part, that;
“No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate embracing more than six months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later) . . . [A] trial court may take note of . . . an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a[n] . . . emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so detained shall be released on his own recognizance at the conclusion of the six-month period aforesaid and may be held to answer a criminal charge against him within the limitations provided for in subsection (C) of this rule.”
The right to a jury trial is found in Article III, Section 2 of The United States Constitution -- “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury” -- and the Sixth Amendment -- ”“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”
During a time of pandemic courts will need to balance a dual obligation of maintaining the rule of law while concurrently protecting the welfare of the public and court personnel.
The American Bar Association proclaims that “It is the duty of all legal organizations-the courts, the organized bar, prosecutors, public defenders, providers of legal services to the poor, individual lawyers, police, and prison and jail officials-to undertake adequate planning and preparation to insure that the legal systems, both civil and criminal, can continue to dispense justice in times of major disaster.”[fn3]
But, a court may find that continuing to have jury trials would put members of the public, jurors, witnesses, law enforcement personnel, lawyers, judges, and court employees at an unacceptable level of risk to their health and for some at an unacceptable level of risk for the loss of their lives. In doing so, operation of the courts could cease temporarily. Such a delay could trip a speedy trial deadline rendering dismissal of a criminal charge.
However, the right to a speedy trial is not absolute. There are numerous factors which may toll the clock on the time limit. These include affirmative acts by the defendant to delay the trial such as discovery motions or interlocutory appeal. Tactics by the defendant, such as evading arrest following indictment, which may delay a trial also toll the clock. Additionally, if the defendant is subject to a previous ongoing trial that may toll the clock on new charges.
Particular to the question at bar is the granting of a continuance upon the judge’s own motion. For this I look to the federal act[fn2] and case law for guidance. The clock will not toll if the court sets forth in the record its reasons for finding that by granting a continuance the ends of justice are served which outweigh the best interests of the public and the defendant in a speedy trial.
The federal or any state supreme court, as they have jurisdiction over their respective courts, may temporarily continue all criminal or jury trials because of a health emergency. However, there may be statutory guidelines or requirements which the court must follow. Again, such a delay may not toll the clock, particularly if a defendant is incarcerated.
In November of 2005 President George Bush released a report addressing the topic of court operations during the time of a viral pandemic, particularly a SARS outbreak. In May of 2006 the U.S. Department of Justice’s Bureau of Justice Assistance held a symposium titled, “Justice and Public Health Systems Planning: Confronting a Pandemic Outbreak. Director Domingo S Herraiz said, “Of critical importance . . . is that local and state justice systems be prepared to respond to and uphold the rule of law throughout any crisis, whether natural or man-made.”[fn1]
Each state should have a statutory framework detailing a Continuity of Operations [COOP] plan for the courts as well as when an emergency may be declared and courts may be closed. A COOP plan should prioritize necessary operations of the courts relevant to a pandemic. These may include novel matters such as issuing orders against a person, medical testing, mandatory treatment as well as challenges to the closures of businesses. For example, during a pandemic if I was ordered to confine myself to my home or only depart for “essential” business then I would file a court challenge [habeas corpus] arguing that such an arbitrary order violated my constitutional rights to freedom of association and freedom of speech.
Germane to the question at hand are the ongoing cases and “potential impact on constitutional rights, including the right to have a speedy trial, and confront witnesses” which should be delineated well in advance.[fn1]
As the U.S. Department of Justice [DOJ] stated in 2006, local and state courts should have plans in place to deal with a viral pandemic such as those which occured in the United States during 1918, 1957, and 1968. The report particularly noted, courts should be prepared for a SARS pandemic. The DOJ recommended that planners ensure continuing court operation by seeking “alternative sites outside the threatened area, including other government buildings or public facilities such as theaters, warehouses, or office buildings” in which trials could be conducted to avoid constitutional violations.
On its face a pandemic and any subsequently declared public emergency does not suspend the operations of the courts or toll the time for a speedy trial. Courts may restrict certain operations consistent with the statutory framework enacted by the various state legislatures. A defendant claiming a speedy trial or jury violation should base an appeal on the constitutional mandate and, if the statutory procedures were not followed by the court or the COOP plan was not followed or non-existent (particularly in light of the 2007 DOJ recommendations concerning SARS), that the state was negligent in its requirement to maintain the rule of law.
Finally, an argument can be made that the current closing of some courts and the tolling of a speedy trial clock is based upon an irrational response and panic. Annual, on average, influenza outbreaks in the United States afflict approximately 30,000,000 people which result in the deaths of 40,000.
It is precisely the irrational response and panic to instant situations from which the framers of the United States Constitution sought to protect. Hence, the specific legislative framework that seeks to encumber immediate changes in the law. They sought to achieve somewhat of a cooling-off period.
However real or imagined the threat of contagion it cannot come at the expense of the rights of the citizenry. Most notably, those innocent individuals who are incarcerated while awaiting trial which should be delivered expeditiously. In simple terms, the government cannot now plead emergency and lack of resources in an effort to toll the right to a speedy jury trial when it was the prosecutorial arm of the United States Government which said 13 years ago that courts must have a contingency plan to stay open during a SARS pandemic.
Footnotes
[1] Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts, March 2007 - Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice.
[2] 18 U.S. Code § 3161(c)(1)
https://www.law.cornell.edu/uscode/text/18/3161
[3] American Bar Association, Rule of Law in Times of Major Disaster (2007), http://www.aba net.org/litigation/ruleoflaw/rol-disaster.pdf.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
