Defense bar ‘outraged’ over Judicial Council changes

California's chief justice on Monday was set to formally order drastic changes to state trial court proceedings, bucking sharp criticism from criminal defense attorneys concerned about constitutional due process rights and the safety of jailing people longer during a global pandemic.

Under recommendations from the Judicial Council, trial courts dealing with chaos caused by COVID-19 now have 30 court days to hold preliminary hearings instead of seven days and seven days instead of 48 hours to bring criminal defendants before a judge. They also can continue to delay trials, and the changes are to stay in place for 90 days after Gov. Gavin Newsom lifts his emergency order.

"I want to emphasize: the key word here for all of us is 'temporary,'" California Chief Justice Tani G. Cantil-Sakauye said Saturday during a special telephone meeting of the Judicial Council, which she chairs. Newsom on Friday delegated authority regarding the superior courts to Cantil-Sakauye in an unprecedented emergency order she said she'd accept "with utmost care and judiciousness."

But defense attorneys and civil rights groups decried her work as detrimental to defendants' constitutional rights and warned it will exasperate an already dire public health emergency. Cantil-Sakauye told the Council on Saturday she has no confidence the states' jails are "practicing social distancing" inside the jails or in the courtrooms and accompanying holding cells, but critics of her change said she's worsening the problems by allowing people to stay in custody longer.

"We're outraged, to say the least," said Oscar J. Bobrow, president of the California Public Defenders Association and a chief deputy public defender in Solano County.

Others believe the changes, which a Judicial Council spokesman said were to be finalized in an order as soon as late Monday, are too vague regarding the use of technology. It's recommended but not required, leaving courts to decide when and how to use tools such as video and teleconferencing. The California Court Reporters Association criticized it as "extremely broad" and said it "will allow for inconsistent application through the State of California."

"We have experienced firsthand an ad-hoc, county-by-county approach over the past two weeks, often putting the health of the public and court employees at risk; however, a wholesale upheaval of court proceedings is not the appropriate response," according to a letter to the Council from association President Sandy M. Walden, a Contra Costa County Superior Court reporter.

Walden said the association would consider the limited use of video technology so long as the court reporter "is in the same location as the judge, and sufficient social distancing and other public health precautions are implemented." It also should be limited to urgent proceedings such as arraignments and bail hearings "or other non-evidentiary proceedings."

"Any use of technology beyond these parameters undermines the integrity of the judicial process that is unnecessary even as we deal with an ongoing public health emergency," Walden wrote.

Martin Hoshino, Judicial Council administrative director, told the Council they may "need to make some adjustments" given the small window for public input.

"Let's be candid: They were rushed in the information they were getting, and they were rushed in terms of commentary," Hoshino said Saturday.

Bobrow said he was notified of the Judicial Council's Saturday meeting about 3 p.m. on Friday and told he had until 10 p.m. that day to submit comment. His group's letter was among approximately 58 received by the Council, but "they didn't even get lip service on that call," Bobrow said in an interview Monday.

Judicial Council member Marsha G. Slough, a 4th District Court of Appeal justice, said Saturday the changes "are in no way shape or form meant to be a opportunity to sit and wait."

"Rather they are meant to be an opportunity to provide court the ability to address arraignments and preliminary hearings as they are able to do so," Slough said. She then pointed to Cantil-Sakauye's previous advisory order recommending significantly lowering bail amounts, sometimes to zero, to alleviate jail populations.

But Alameda County Public Defender Brendon D. Woods said after the meeting the changes will have the opposite effect by restricting speedy trial rights. He said the "bizarre move" of keeping them in place for 90 days after the emergency means defendants "still will have their statutory rights restricted even after the government lifts shelter-in-place restrictions and courts resume normal operations."

Losing the right to a speedy trial, "especially after the emergency has passed, is something that should alarm every single person in California," Woods said in a news release. "If you're going to take such extraordinary measures of denying people due process rights you also have to take the extraordinary measure of releasing them as well."

Woods, who is the only black top public defender currently in California and the first in Alameda County, said he was concerned when listening to Saturday's meeting that the talk of protecting rights "was not true for the people we represent - the poorest people, black and brown people, locked in cages."

Erik R. Stallman, a professor at UC Berkeley School of Law, called the changes "ill advised" in a letter to the Council that said administrative delays threaten in-custody defendants with "unjustifiable, life-threatening risks."

"We are nowhere close to as bad as things are going to get. Any delay in proceedings should not extend to those defendants who are in custody," Stallman wrote.

Orange County District Attorney Todd A. Spitzer said the courts need more direction regarding use of technology to resolve disagreements between prosecutors and defense attorneys, many of whom don't want to waive their clients' right to attend proceedings in person.

"I got into a big screaming match with my public defender this morning about video prelims," Spitzer said Monday. "Their biggest issue is they need to be present with their client during a preliminary hearing. Well, guess what? You can't have it both ways. If you want distancing from your inmate, you have to do it by video."

Orange County Public Defender Sharon L. Petrosino said she isn't willing to wave her clients constitutional rights, and she's focused on trying to secure the release of 544 jail inmates identified as vulnerable by health officials.

"We're holding people in custody that have never been before a judge. If you told us that two months ago, we'd be saying, 'It's China or some other country. That's what they do in other countries; not our country,'" Petrosino said.

Petrosino also said she doesn't have the technological capabilities necessary, which is why Slough said the changes regarding technology specified "when possible."

Chair of the Council's technology committee, Slough said Saturday she and her colleagues "are keenly aware that the different trial courts' capacity to resolve and find solutions via technology differs greatly up and down and across the state."

She also referenced the meeting's tech problems, which included an errant echo effect and a crashed phone line.

"I think our experience shows all of us that technology is an aide," Slough said. "It is not always the clean, simple answer that we would like it to be."