As chief justice issues most forceful order yet, prosecutors call for swift action amid growing chaos

Chief Justice Tani G. Cantil-Sakauye took her most forceful action yet in the coronavirus pandemic late Monday, halting jury trials across the state for 60 days and issuing guidelines she said are aimed at ensuring courts follow health directives, such as distancing people six feet from each other.

But some attorneys believe the order, which also waives the 45-day public comment period for court rule changes related to COVID-19, isn't enough, and they're calling for swift action to address the pre-trial proceedings, such as arraignments and preliminary hearings they say are overwhelming the criminal courts.

"We're living under this pressure valve, and this thing's blowing up. It's her job as the chief justice to provide us some ability to get some relief from this pressure valve," Orange County District Attorney Todd A. Spitzer said Tuesday. "It's urgent she gets an emergency order from the governor."

Cantil-Sakauye's latest move follows reports of chaos and health dangers in trial courts across the state, as well as pleas for statewide uniformity from various legal groups and law enforcement unions. The California District Attorneys Association requested new guidelines in a letter Saturday, citing a recent mistrial in Merced County Superior Court that occurred after a police officer witness test positive for COVID-19. Two deputy prosecutors and other office staff are now in quarantine, and their colleagues "are frightened for their safety and that of their families," according to the letter by the prosecutors association president and Alameda County District Attorney Nancy E. O'Malley.

"We believe that all district attorney's offices across this state will soon be in similar circumstances," O'Malley wrote.

O'Malley said in an interview Tuesday Cantil-Sakauye's order "gives guidance to all presiding judges who have the responsibility of figuring out how to keep their courts moving, ensure individual constitutional rights and not violate the rules. I know she's cautious, and I know she's very thoughtful about what she's doing and how she's leading the courts through this."

But Michele A. Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, said the new order "lacks clarity" and doesn't address how postponed trials will commence after 60 days. It still leaves major safety decisions regarding pre-trial proceedings to presiding judges, and she said judges "are running their own programs and doing whatever they want."

Prosecutors are being denied telephone appearances for routine items, she said, and inmates are closely interacting with attorneys with no barriers. Dozens of witnesses for preliminary hearings are waiting in rooms together, and one in-custody defendant said Monday he'd been taken to court from a locked down area of the jail with four sick inmates, said Hanisee, who was in court.

The Sylmar Juvenile Courthouse also recently closed because an attorney there tested positive, and Hanisee said she knows of other attorneys who've recently been sickened.

"Social distancing is not being maintained," said Hanisee. "They say they've done stuff, and if you go to court, it's not being done. It's not being implemented."

Vice President Eric W. Siddall wrote an article for the association Tuesday titled "Judicial Inaction" that said Cantil-Sakauye's order and Los Angeles County Superior Court Judge Kevin C. Brazile's recent barring of non-essential people from the courthouses "disregard the science behind slowing down and defeating this pandemic."

"Meanwhile, they are giving the public the misconception that the judicial branch is on top of it -- far from it," wrote Siddall, a deputy Los Angeles County district attorney.

Cantil-Sakauye could not be reached for comment Tuesday. "I'm sorry, at this time the chief is not taking any interviews," a Judicial Council spokeswoman said in an email.

Spitzer said the LA prosecutor association's observation is "spot on." Preliminary hearings and arraignments are burying his office, and prosecutors need statutory relief to ease timing requirements and make it easier to address crowded courtrooms and implement necessary distancing, he said. A 1990 voter initiative allows prosecutors to use hearsay testimony from sworn peace officers to avoid bringing people into court, but Spitzer said other in-person witnesses still are presenting huge management challenges.

"We're going to have an avalanche of preliminary hearings where the court will not have enough judges and courtrooms to accommodate our need to get these hearings done," Spitzer said. "It's beyond problematic."

"This week we're kind of muddling through, but next week we're going to be in big trouble," Spitzer continued. "The chief justice has a responsibility for all of us in the criminal justice system to get relief from the governor."

The Consumer Attorneys of California and the Defense Counsel also called for gubernatorial action on Tuesday, saying the suspension of jury trials underscores the need for Gov. Gavin Newsom "to extend legal deadlines and take other emergency steps to protect the civil justice system," according to a news release.

Meanwhile, O'Malley said she was "anxiously awaiting" news about Ventura County's first day of all-video arraignments. Her office restarted courtroom arraignments last Friday, and the judge opened a second courtroom to ease crowding.

"We're just trying to avoid having to have a court event if we can," O'Malley said, noting, like Spitzer, arraignments and preliminary hearings currently can't be avoided. Video conferencing could help, she said, and the court already has some technology as a member of a pretrial pilot program. She said she's also arranged with defense attorneys for the early release of about 300 people.

"We're in very uncharted waters, but I feel like if we can get the courts to be consistent, then each county will know what the game plan is, and then we can all plan accordingly," O'Malley said.