“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.
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Monday, April 6, 2020
Demanding a Speedy Jury Trial during SARS CoV-2 and Covid-19 outbreak
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