Pandemic presents constitutional challenges in criminal cases

During the Spanish Flu pandemic of 1918, a judge in San Francisco devised a creative way to keep criminal trials moving forward.

Because indoor gatherings were discouraged by health officials, trials moved outdoors. A contemporaneous photo from a newspaper clipping shows dozens of unmasked people gathered in Portsmouth Square while a judge appears to preside over a case.

In San Francisco's first criminal trial after the court shutdowns, Deputy Public Defender Sierra Villaran objected to pandemic procedures that separated prospective jurors into two groups during voir dire. (Courtesy of Sierra Villaran)

Sierra Villaran, a deputy public defender in San Francisco, saw the photo as she was preparing for the county's first criminal trial that resumed in July after the California Judicial Council temporarily suspended them.

Her client was charged with residential burglary and being in possession of stolen property. Prosecutors said he had broken into someone's apartment complex because police found him with a bag of items that had been reported stolen.

Villaran was preparing to argue her client, who was homeless at the time of the arrest, found the bag while looking for a pair of shoes. But she and her boss, Manohar Raju, the state's only elected public defender, were also preparing to navigate uncertain challenges in providing effective assistance during the pandemic. The obstacles and options were similar to those possibly faced by defense attorneys who moved to an open air court more than a century ago, she wrote in a recent column in the Daily Journal.

The first challenge this year was immediately apparent. San Francisco Judge Vedica S. Puri modified her courtroom to accommodate a maximum of 20 people, including court staff, attorneys, the defendant, witnesses and jurors, as opposed to 100.

That caused jury selection to be conducted in separate courtrooms, which led to concerns for Villaran and Raju.

"When you're doing voir dire, that's something that every juror should be seeing," Raju said.

Instead, one group appeared in the same courtroom as the judge and the attorneys. A second group appeared in an adjacent courtroom, watching the first group as they were questioned on a live feed. The next day, as prospective jurors were dismissed from the main courtroom, new prospects were moved into their places.

Raju said prospective jurors who replaced dismissed ones could have missed a question in the initial phase that might have raised concerns about their fairness.

"That's definitely something that's impeded our clients' right to a fair trial," Raju said. "We need the trials to keep happening. But having said that, we want the trials to happen in a more fair and complete way. And we know there's some efforts, but there's more that can be done."

Shelby Alberts, a Sacramento sole practitioner, is among several defense attorneys filing writs and appeals over denial of their clients' constitutional rights by COVID-19 rules in criminal courts. (Courtesy of Shelby Alberts)

Still, he said he appreciates that jurors were willing to risk their health to come to court to fulfill their constitutional duty.

In April, after the Judicial Council issued a slate of orders and rules aimed at balancing public health with due process rights, Shelby Alberts, a defense attorney and sole practitioner in Sacramento, predicted there would soon be a flood of writs and appeals filed across the state, arguing those orders and rules violated their clients' constitutional rights.

Since then, several appeals have been filed, she said. She's working on one herself.

In one of the first preliminary hearings streamed remotely from Sacramento County Superior Court in April, Alberts argued the proceeding itself violated due process by limiting her clients' ability to confront witnesses and have counsel by his side.

Judge Stephen Acquisto denied her objection on the grounds that the courts had to find a balance between public health orders and due process. Because courts restricted access to allow for social distancing, remote conferencing was the best it could do, he said.

The 1st District Court of Appeal took a similar position in one of the first published decisions in a case involving constitutional challenges related to pandemic orders.

The trial of a defendant charged with serious sex crimes against a child 10 years or younger ended in a mistrial in Contra Costa County in August 2019. The defendant then waived time until his new trial date in April 2020.

But with the Judicial Council having temporarily suspended jury trials in March, the defendant challenged the continuance of his trial beyond his speedy trial statutory deadline, arguing the statewide orders were unauthorized by statute and violated separation of power principles.

A three-judge panel of the 1st District held, "The severity of the COVID-19 pandemic and the impact it has had within this state independently support the trial court's finding of good cause to continue" the trial. Stanley v. Superior Court of Contra Costa County, 2020 DJDAR 5528 (Cal. App. 1st June 9, 2020).

In another Contra Costa County criminal matter, however, the 1st District court held that wasn't the case for preliminary hearings that aren't held within the statutory timeline because of some of the adaptations courts have made to safely conduct hearings. Attorneys would need to cite reasons other than the pandemic to justify an extension, the court held. Bullock v. Superior Court of Contra Costa County, 2020 DJDAR 6396 (Cal. App. 1st Dist. June, 24 2020).

The temporary solutions courts have implemented thus far to protect health and uphold due process rights, from delaying statutory timelines in criminal trials to implementing technology to conduct remote proceedings, have presented defense attorneys some of the greatest challenges of their careers.

"We have very good tools, and certainly they're good enough for the average remote appearance to be made," said Eric Schweitzer, president of California Attorneys for Criminal Justice, a statewide group of private and public criminal defense attorneys. "But things happen in evidentiary hearings that are going to be extremely challenging for the average practitioner. I'm sure there are practitioners out there who could do it seamlessly. I'm not one of them."

Alberts said some of her most pressing constitutional concerns brought on by the pandemic have occurred in evidentiary hearings as well.

"Witnesses are not required to appear in person, and I believe cross examination has been affected," Alberts said. "The amount of times I've said I can see the witness reading from their reports is astounding."

Schweitzer described remote cross examination as "basically just putting a document up in front of a camera."

He added, "You can't even do that when you're in the courtroom, because the camera is somewhere else, and the judge is often in chambers."

The Judicial Council had a playbook for pandemics before this one began. Written in 2006, "Epidemics in the California Courts" was designed to be a guide for courts to prepare and respond to such crises.

"One of our greatest emerging threats to California's courts in 2006 is the possibility of an epidemic," the guide said. "Epidemics and pandemics have the potential to significantly affect court operations and the health and safety of court personnel, jurors and the public."

The guide anticipated that "during large epidemics, courts may experience an increase in caseload if affected individuals or communities seek judicial relief from restrictions imposed by health authorities."

Nine months into this pandemic, district attorneys and public defenders are struggling to keep up with backlogged caseloads as continuances have become routine.

The playbook also warned that during a pandemic, courts "could themselves become a spreading center for disease." Capacity would likely be restricted while face-to-face interaction and services would be limited.

These are all considerations the playbook raised that are presenting challenges to the court system today.

Also included in the guide was a blueprint for California Chief Justice Tani G. Cantil-Sakauye for issuing emergency orders and rules -- which she did after Gov. Gavin Newsom declared a state of emergency in March.

While comprehensive, there were some gaps in the guide that this pandemic has exposed. It didn't account for how social distancing might affect criminal proceedings, nor did it account for how social distancing would impact attorney-client communication once stalled proceedings resumed.

During San Francisco's first jury trial in July, Judge Puri ordered Villaran, the defense attorney, and her client to sit six feet apart during one hearing, despite having allowed them to sit next to each other previously. Puri first stipulated that they would have to communicate through a shared notepad, which Villaran objected to, saying it wasn't a good argument that she could not be physically close to her client but could share a pen and paper. Puri then came up with the compromise of giving each a laptop to communicate through a messaging application.

In Fresno County Superior Court, Schweitzer said he's experienced similar communication challenges that concern him in terms of providing effective assistance of counsel.

"You can't whisper through the glass," he said of barriers that were installed to prevent particulates from spreading. "And you can't hand papers back and forth or notes back and forth. There are obstacles at every level."

Merrill Balassone, a Judicial Council spokesperson, said it's too soon to say what the policymaking arm of the state's judicial system has learned from this pandemic and how that might influence changes to its playbook.

"We're still in the middle of the pandemic, with the number of cases growing, so it's premature to reflect back on the actions taken," Balassone said. "Of course, when the pandemic is over, we'll analyze what might be done differently to inform future actions."

Limits on public access to court proceedings has raised constitutional concerns for some attorneys as well.

"The court response has been very, very spotty," said David Snyder, executive director of the First Amendment Coalition. "Some courts have taken the obligation under the First Amendment to provide access to the public seriously. But many simply have not focused on it at all."

But Snyder said he can understand why.

"The courts have a tremendous number of crises that they're trying to manage all at once, and they can't do everything," Snyder said. "However, it's our experience communicating with courts on a court-by-court basis all up and down the state that far too many courts are simply not giving enough mental space to figuring out how to provide the public access."

Most courts have adopted some form of remote technology to allow proceedings to be viewed from home, via an audio or video stream. But Snyder said remote access should only be used as a supplement and not a replacement to physical court proceedings whenever physical attendance is not possible.

"There's an upside to providing consistent and publicly available audio and video access," he said. "It will reduce the number of people who feel compelled to go to the courthouse."

It's hard to say what the criminal legal system would look like today if the Judicial Council never implemented statewide orders and rules and instead left local courts to decide how to adapt to the pandemic.

But one thing attorneys say is this pandemic has taught them that there are certainly some ways shortcuts can be taken and others where it's important they aren't.

"Simple continuances where people have been sitting in court all day just to continue a case, that's something that can now be streamlined," Alberts said. "People are a lot more conscious about not setting pointless court dates. But at the same time, you need to be able to talk to your clients in person, you need to be able to sit next to them in court, and you need to be able to whisper to them during a hearing."

Schweitzer said he's learned to communicate better with his clients, and judges he's appeared before have become more flexible and patient. As far as due process and the Judicial Council's emergency orders go, Schweitzer said they struck a good balance.

"I think that the chief justice did the best that anyone could expect of her having to promulgate rules at warp speed like she did," Schweitzer said. "Yes there were flaws, ... but in times of pandemics, one has to err on the side of caution. And I think that the chief justice was very careful and very cautious, and yet as decisive as one could have hoped for."