Criminal trial delays won’t end with pandemic

Hundreds of criminal defendants detained in jail in Contra Costa County have been waiting for more than a year to be brought to trial. Thousands of others charged in counties where trial deadlines are still being extended because of the pandemic face similar delays.

Although legal experts say trial courts are typically given deference during emergencies, some defense attorneys argue that presiding judges are setting aside due process protections for their clients when their courts are capable of resuming trial at a pre-pandemic pace.

"We're now beyond the need for addressing safety in the courtrooms, at least in our county, and I think in many other counties," said Contra Costa County Public Defender Robin Lipetzky in an interview. "And we're in a situation where the concern from the court has turned to, 'Oh no, we have this huge backlog of cases, and we can't possibly just open the floodgates, because then what are we going to do?'"

Though many courts in rural parts of the state have not asked for a trial extension since last year, presiding judges across California are still requesting approval from California Supreme Court Chief Justice Tani G. Cantil-Sakauye to extend deadlines under Penal Code section 1382. If approved, the orders allow prosecutors to avoid a dismissal if they aren't prepared to go to trial within 30 days of arraignment for misdemeanor cases and 60 days for felony cases.

"When you don't have trials, and when one half of the adversarial process can say, 'I don't want to go to trial,' and the normal remedies and protections from that are set aside, then the system isn't functioning," said Los Angeles County Public Defender Ricardo Garcia.

The Judicial Council's guidelines state that felony cases should be completely resolved within a year of arraignment and misdemeanor cases within four months. It's unclear how many cases filed since the pandemic's onset will be closed within that time frame. But a peek at the council's annual report from 2020 shows that only about three-quarters of felony cases were closed within the recommended time frame in pre-pandemic times.

"The system never works very quickly," said El Dorado County District Attorney Vern Pierson, who also serves as the California District Attorneys Association president. "I'm certainly not criticizing the chief justice in terms of the requests that she's made, because I think those have been very reasonable and appropriate, but at some point we need to be moving cases along."

In Contra Costa County, sheriff's department data obtained through a public record's request shows that at least 430 defendants who have been charged and booked into county jail since April 6, 2020 have not been brought to trial. Though some may have waived time, many of those cases have likely languished because the superior court is one of dozens that continues to extend statutory trial deadlines.

Somil Trivedi, a senior staff attorney with the American Civil Liberties Union's Criminal Law Reform Project, said while most states have their own version of a speedy trial right that protects defendants from being under the threat of prosecution indefinitely, it's not absolute, especially in a pandemic.

"In this context, the government can justify why the speedy trial rights shouldn't apply in a certain circumstance, and the law tends to give the government some deference if there's a legitimate reason why the prosecution needed to take longer than it should," Trivedi said.

Lipetzky was one of the first to challenge the legality of the orders last year. Over the course of two weeks last May, just weeks after the California Judicial Council's first emergency orders were issued, Lipetzky's office filed nearly a half dozen challenges in appellate court arguing the trial extensions violated due process. All but one were rejected.

In the case that was granted, a three-judge panel of the 1st District Court of Appeal 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." Stanley v. Superior Court of Contra Costa County, 2020 DJDAR 5528 (Cal. App. 1st June 9, 2020).

In a March letter to the chief justice, Contra Costa County Presiding Judge Rebecca C. Hardie acknowledged that the court has fully reopened to the public and is prioritizing cases involving in-custody defendants as trials resume. But without extending trials, she said health concerns will continue to limit the court's ability to sift through the backlog.

"Judges and staff are working diligently to clear the backlog created by the COVID-19 pandemic, but the court must have additional leeway on last-day trial dates to manage the workload," Hardie wrote.

But in a written objection, Lipetzky said each additional additional extension "reduces, rather than improves, the potential for working through the backlog of cases."

"The sad reality is that cases don't resolve until there is a trial date and district attorneys are forced to really look at their case and assess a realistic offer if they want to avoid trial," Lipetzky said in an interview. "So these extensions are really putting off way down the road the ability of cases to move forward."

Like Lipetzky, Garcia said his office has filed several writs challenging due process violations, though he said each time they file, "the offer gets better or there's a constructive result."

But he said for clients who have been detained for more than a year awaiting trial, the extensions are causing many of them to give up and take unattractive offers from prosecutors.

"It's just not fair to put that additional pressure on people who are presumed innocent," Garcia said. "We can advise our clients that we don't want them to plead, but at the end of the day, the human being has to be able to control what happens in their case."

In December, the chief justice started making retired judges available to conduct readiness conferences and help courts work through criminal backlogs. She also tightened the requirements for approving requests for extensions.

"Going forward, any court that requests an emergency order that includes an extension of time for holding criminal trials will be required to state if they have established a program and include a description of it," Cantil-Sakauye wrote in a court memo to all 58 superior court executive officers.

It's unclear how many requests, if any, Cantil-Sakuaye has denied. A Judicial Council spokeswoman said she has approved more than 500 of them.

Garcia said the backlog is not only causing constitutional concerns, but he said it has increased his attorneys' pressure as they prepare cases.

"It's a question of which cases to prioritize," Garcia said. "My lawyers are dedicated, hard-working, and I will gladly say the best of the best, but under the current circumstances, the amount of preparation grows as more and more cases accumulate."

He added, "This is not going to end when the emergency order concludes."

Prosecutors also have due process concerns stemming from trial extensions, Pierson said.

"The victims of crime and the people have a due process right to see cases managed effectively and adjudicated as well," Pierson said. "And so I think both sides from that standpoint share those concerns."

Though Lipetzky and Garcia are not alone in their critiques of trial extensions, not all public defense attorneys find them unwarranted.

"Our county of a half-million people has a courthouse which was built in 1950, and the realities of that facility's construction makes it extremely difficult -- if not impossible -- to conduct jury selection for more than one trial at a time while still complying with CDC guidelines and protecting the potential jurors," said Stanislaus County Public Defender Laura Arnold in an email.

Still, with pandemic restrictions being lifted across the state, and as businesses, schools and restaurants begin to reopen, others say courts should follow.

"The longer this goes on the higher the concern is," Lipetzky said. "We're going to continue to litigate these issues because at this point in time, I think the courts are being given this kind of deference to handle the backlog as opposed to because they cannot safely conduct jury trials. And I think that raises significant constitutional issues."