However, if you’re locked up awaiting a criminal case, you cannot go to court to defend yourself. There have been few opportunities for the accused to do so since March, leaving people sitting in jail awaiting what appear to be aspirational court dates. In delineating what activities are permitted during the pandemic, we’ve exposed race and class inequities that long pre-dated the coronavirus.
The Sixth Amendment guarantees a speedy trial, a public trial, the right to a jury trial, the right to confront witnesses and the effective assistance of counsel when charged with a crime. I am a veteran public defender in Baltimore City. My clients, who are indigent and mainly Black, have been denied these rights since the pandemic began.
We’ve lost the important bargaining chip of “going to trial.” My clients are being held for ransom by prosecutors and judges.
In normal times, it was at least possible to negotiate plea bargains, which, though often hard to swallow, still got folks out of jail. Now, the default position for nearly every case is a postponement. Kicking the can down the road is permitted because judges see the current situation as an unprecedented emergency. But imagine sitting in jail knowing nothing can be accomplished for your case. Some clients have endured well beyond a year of pretrial incarceration without a whiff of a courtroom. Meanwhile, the state is dragging its feet on turning over evidence because filing deadlines are tolled and most cases aren’t being pushed to a resolution to get folks home to a safer environment.
The Maryland Court of Appeals, our high court, suspended jury trials statewide from March until October, then put them on hold again in November. But even when jury trials resumed in October, only a handful got underway. We normally have several trials in progress each day. In Maryland, Circuit Courts handle jury trials, which usually involve felony cases but can also encompass any misdemeanor carrying more than 90 days of jail. Together, that’s a large percentage of the dockets. Unfortunately, the unprecedented challenges of the pandemic have completely hamstrung Baltimore City’s Circuit Court, which, on a good day, features no integrated technology for attorneys’ use, outdated spaces for jurors, filthy “bullpens” holding incarcerated defendants waiting to appear in courtrooms and a building that has no stairwell option to the elevators for the public.
Trying to retrofit the city’s obsolete structures and come up with social distancing plans are no doubt huge challenges. Court administrators and city officials instituted coronavirus-related security check-in procedures, installed plastic barriers, established capacities for different-size rooms, supposedly improved the air filtration system and reserved several larger courtrooms for jury trials, but years of neglect made the tasks much more difficult.
The new safety measures allowed for some in-person hearings from August into November. These hearings included pretrial motions and judge trials, but without the option of juries, defendants lose leverage. The projected start date for jury trials is April 26.
Putting the current state of our court system in perspective, the pre-pandemic mode featured injustices such as corrupt policing, excessive pretrial incarceration, overcharged cases and disproportionate arrests and sentencing skewing more severely against Black people. Now, my clients are just stuck in a holding pattern on most cases that prosecutors or judges deem “serious” or “violent.” This is a new injustice. Ironically, Maryland District Courts, which mainly handle less serious matters and only have judge trials, are still requiring non-incarcerated individuals to appear in person for minor, sometimes absolutely petty offenses such as littering.
To offer some relief, judges should step up and get involved in plea negotiations. Pretrial detention needs a closer look because of the extreme risk of infection in jails. We also must be careful in forcing remote hearings on platforms such as Zoom as replacements for live court, because they aren’t equivalent. Video proceedings should be options for defendants in dire need of hearings and nothing more. Zoom cannot become a crutch that sneaks its way into normal operations in the future.
As my clients sit behind bars with their hopes slowly fading away, we have to consider how to speed up the next reopening and how to do it more effectively. We’ve got a lot of business to get done and too many wrongs to right. So let’s get started.
By Todd Oppenheim
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