Courts face avalanche of backlogged cases

Marion County jail visitation area with glass partition. Photo supplied by Marion County Sheriff’s Office.

Marion County jail visitation area with glass partition. Photo supplied by Marion County Sheriff’s Office.

Local court officials worry it could take years to dig out from under the backlog of jury trials postponed due to the COVID-19 pandemic.

Right now, in Marion County and the rest of the five-county 5th Judicial Circuit, trials are on hold because surging cases sent COVID-19 positivity rates soaring. But even before the latest surge, trials have been on hold in Marion since March as officials try to navigate an unfamiliar landscape transformed by safety guidelines that affect even the most mundane aspects of court proceedings.

“The court’s rules weren’t built for these circumstances, heck, our buildings weren’t built for this,” explains Michael Graves, public defender for the 5th Circuit.

Once positivity rates come within safe range for jury trials to occur, stakeholders have other hurdles to overcome in addressing the backlog of cases.

Pursuant to Supreme Court Chief Justice Canady, jury trials must not resume until the community’s spread comes below 10% for at least a week or two period. Since reaching that benchmark does not seem imminent, Chief Judge Daniel Merritt canceled all jury trials in the circuit until further notice.

The under 10% benchmark needs to stay steady long enough to reduce the risk of canceling jury trials last minute. As a trial period nears, the clerk of the court sets in motion summoning hundreds of jurors, and attorneys must employ the sheriff’s office or some private process server to serve summons on witnesses that need to appear. Canceling trials last minute is costly and frustrating.

Judge Edward Scott, administrative judge for Marion County, acknowledged at a recent meeting with attorneys that while they were all doing their best to handle as many matters as possible through remote video, “the hardest work lays ahead” as the pandemic crisis starts to ease and the courts can start addressing the backlog of circuit and county cases in jury trials.

Concerns will continue for the health of those participating in the jury trials. Of particular concern are those working with inmates, such as the court bailiff and defense attorneys.

The Marshall Project, a nonprofit focused on journalism about criminal justice, reported one in every five state and federal prisoners in the United States has tested positive for the coronavirus, a rate more than four times as high as the general population. And in some states, they found that more than half of prisoners had become infected.

“As defense attorneys, we are not only worried for the safety of our clients, but our clients’ rights. It can become a challenge to decide which takes priority over the other,” said Ian M. Pickens, a local attorney and president of the Marion County Association of Criminal Defense Lawyers.

Even something as common as jury selection becomes a challenge.

“From a defense perspective, picking juries is a big concern,” Pickens said. “Our clients want us to pick a jury of their peers that they feel can be fair and impartial. And we already had small jury pools to pick from, but now with COVID-19 those jury pools will be even smaller. When I’m questioning a potential juror I’m trying to read their body language to decide if they are the right fit. Masks and safety gear make it harder to pick up those important facial expressions. Masks also make it harder to read jurors’ reactions to information they are receiving during the trial.”

Graves offered an example of normal trial behavior that’s nearly impossible while social distancing.

“After an attorney questions a witness, it’s customary to ask the client if there were any questions that needed to be asked before releasing the witness,” Graves noted. “That customarily is a whispered conversation between client and attorney while everyone waits. How can an attorney go sit closely with an inmate to have the private conversation, maintain his safety and provide effective counsel? You can’t.”

Although the Marion County Jail has reported relatively low numbers of COVID-19 cases, they recently announced that the jail’s medical provider, Heart of Florida Health Center, will make rapid COVID-19 tests available to inmates due in court once trials resume.

“We can now have rapid COVID-19 test results in as little as 15 minutes,” said Tim McCourt, attorney for the sheriff. “We anticipate rapid testing of any inmates who are scheduled to go to jury trial. This is a big improvement and, together with our other measures, will go a long way to helping ensure the safety and health of the public and courtroom personnel.”

Heart of Florida Medical Director Maria Torres confirmed their commitment.

“I am confident we can provide the court with the needed testing of our inmates,” she said. Torres acknowledged the possibility that rapid tests could become in short supply for reasons outside their control but added that she did not foresee an immediate issue.

This new testing capability and policy is important considering the current limitations of the jail to isolate inmates.

“Presently, we have two sections set up for isolation – one is for the isolation of inmates who have tested positive for COVID-19 and the other is for the isolation of inmates whose test results are pending,” McCourt explained. “With these units being reserved for that purpose and other housing units being closed for repairs, we do not have additional space to isolate other inmates who are pending trial.”

The lawyers who defend inmates have been taking steps to protect their health.

The public defender’s office has its own video conferencing set up at the jail to communicate with clients who are incarcerated. Attorneys can still meet with inmates in the traditional visitation rooms, but the rooms are small and social distancing is difficult. McCourt said the jail has also given lawyers the option of meeting with clients separated by a glass partition. And private lawyers can talk with their clients using the same video conferencing system inmates use to communicate with their families – with one added measure of security.

“During the COVID-19 pandemic, we have worked with Securus Technologies to expand the ability of attorneys and their staff to have video visits with their clients over our existing Securus terminals,” McCourt said. “Unlike an inmate’s other visits which are recorded, the communications between attorneys and inmates is not recorded, which affords some added measure of privacy for all involved.”

Public Defender Michael Graves, who has 275 jury trials under his belt, acknowledged that while safety measures are currently necessary, “there are some things that can only be said face to face.”

He also said video conferencing with those outside the jail can be tricky.

“By the very nature of the clients we represent, many of the witnesses we want to depose do not have the technology to be deposed virtually,” Graves said. “And safely gathering representatives from both sides and a court reporter in the room has not proved easy to do safely. And in those cases where children need to be deposed, that requires including even more people in usually close confines for extended periods of time.”

The public defender’s office and state attorney’s office are currently coordinating to identify and agree on which cases are ready for trial and they can ask Marion County judges to set those cases for trial first.  Judges can choose whether to accept or reject the recommendation.

But it’s going to take a lot more to catch up, including more money from the state.

The historically understaffed public defender’s office is now facing felony caseloads 70% higher than before the pandemic and 100% higher misdemeanor caseloads.

And Florida Gov. Ron DeSantis has told public defenders and state attorneys to expect budget cuts of at least 6% for the next fiscal year that starts in July.

Under normal circumstances, Graves says, “it takes the average felony case handled by the public defender’s office five to six months to get through the system.”

Marion County judges and lawyers agree that additional funding would help.

“The ability to hire more case managers would be ideal to help to work through the backlog of cases,” Judge Scott said.

Attorney Picken added, “If a judge can only handle one jury trial a day, it’ll be hard to move cases without the state legislatures providing additional funding so that each circuit can hire back senior judges to help with the caseload. We can have more trials if we have more judges.”

Multiple lawyers have expressed hope that the judiciary would coordinate their individual procedures and adopt policies being used in larger metropolitan areas to help address the backlog more efficiently. But for now, they adapt to ever-changing circumstances.

“Everyone is doing the best they can,” Pickens said. “No one is to blame for the situation, it’s just the nature of what we’re dealing with.”