Judicial Council OKs new emergency rules

The Judicial Council on Monday approved new pandemic-driven emergency rules aimed at easing chaos in the trial courts, decreasing jail populations, helping mortgagees and renters and offering more guidance for remote proceedings such as video arraignments.

The Council said courts can mandate remote proceedings but specified criminal defendants must consent, which drew criticism from prosecutors, including Sacramento County District Attorney Anne Marie Schubert, who called for a statewide mandate “to create uniformity and consistency across all courts in California while also protecting the health and safety of all court users.”

“A defendant should not be in control of where or how a preliminary hearing is conducted and expose other participants to an increased danger of infection due to the choice of a defendant,” Schubert wrote in a six-page letter to the Council. “Preliminary hearings are probable cause hearings, not trials that decide whether proof of guilt has been established beyond a reasonable doubt.”

Others agreed, including the San Diego County Deputy District Attorneys Association, the Alameda County Prosecutors’ Association, the California District Attorneys Association, San Diego County District Attorney Summer S. Stephan, San Luis Obispo County District Attorney Daniel L. Dow and Yolo County District Attorney Jeffery W. Reisig.

“Life should prevail over any perceived defects in a defendant’s remote appearance during this emergency,” Reisig wrote.

Judicial Council members addressed the concerns Monday with Marsha G. Slough, a 4th District Court of Appeal justice, saying she believes the defendant’s consent is crucial.

“We are not at a point in a time to throw away the rights of the defendants because it will be more expedient. The crisis should not be used as means to remove civil rights and liberties,” Slough said.

Slough said she’s heard concerns that the specification about defendants consenting to remote proceeding could result in defendants mandating all court staff be present, so she modified the order to clarify that a defendant’s consent applies only to his or her appearance. Courts still may require witnesses to appear “if there is good cause established,” Slough said.

Chief Justice Tani G. Cantil-Sakauye said previous orders suspending jury trials and easing procedural deadlines have given courts “more capacity.”

“I don’t know to what capacity that is exactly, but at least it tells me that we have shrunk services to only urgent services. And I know we have skeletal staff and judges and our court family, but I have not actually seen or heard evidence that it’s physically impossible or nearly impossible or carries such risk that they couldn’t transport [in-custody defendants],” Cantil-Sakauye said.

The chief justice also said she’s seen about 100 emergency order requests, “And that has not been universally the request that I have seen”

“I’m trying to base this on facts and evidence and trying to balance the right of the accused,” Cantil-Sakauye said. “That’s my answer at this point. I’m not saying it couldn’t change next week.”

Marin County Public Defender Jose H. Varela supported the consent requirement, saying it helps “maintain a respectful modicum of due process during this terrible crisis.”

“Allowing for a defendant’s consent prior to proceeding with a remote hearing services to ensure that individual access to the courts is not abridged,” Varela wrote in a letter to the Council.

Alameda County Public Defender Brendon D. Woods told Cantil-Sakauye in a letter that by adopting the rules, “you will not only reduce the number of the people in the courtroom and help to winnow the backlog that will follow the emergency closures, but you will also insure that communication with our clients is done in a safe and responsible manner.”

“The requirement of a ‘knowing and voluntary consent of the defendant’ to a remote hearing strikes a sensible balance between the need for social distancing and the constitutional and statutory rights of those charged with criminal offenses,” according to Woods, who last week sharply criticized Cantil-Sakauye’s previous emergency rules extending pre-trial procedural deadlines.

Woods said the $0 bail order “will help us achieve essential social distancing in the one place in Alameda County where it is not practiced: the jail.”

“This comes not a moment too soon. Yesterday, our Sheriff reported that an inmate in a two-person cell in our county jail tested positive for COVID-19, this was the first reported case in our county jail,” according to Woods’ letter, dated Sunday.

In addition to allowing defendants to appear via counsel or remote technologies for pretrial criminal hearings, the Council on Monday set bail at $0 for most misdemeanor and lower-level felony offenses, suspended judicial foreclosures and default entries in evictions while tolling the statute of limitations, prioritized hearings and orders in juvenile justice proceedings, extended the time frames for specified temporary restraining orders and extended the statutes of limitations governing civil actions, extended the five-year civil filing rule by six months and permitted electronic depositions in civil cases.

“We recognize that these rules don’t even begin to solve all the problems, and we know that we have much, much more work ahead to accomplish,” Slough said.

Cantil-Sakauye emphasized the Council considered all feedbacks and is open to future changes.

“We realize that we are getting information in the same real-time manner as the rest of the country,” Cantil-Sakauye said. “We are at this point, truly, with no guidance in either history, law or precedent. To say that there is no play book is a gross understatement of the situation.”