Public Defense after the Pandemic

Backlogs

The single biggest problem faced by public defenders as the pandemic begins to ease is the massive backlog of cases, particularly jury trials. While some jurisdictions never closed in-person court, most did, bringing criminal trials to a halt. New York City, the most populous jurisdiction in the country, held just nine criminal jury trials from March 2020 to January 2021—less than 1 percent of the number held during the same period the prior year. Nicole Hong & Jan Ransom, Only 9 trials in 9 Months: Virus Wreaks Havoc on N.Y.C. Courts, N.Y. Times, Dec 2, 2020.

Where possible, public defenders and prosecutors worked hard to resolve cases, but in some instances, resolution by agreement simply was not possible. An impasse is most common for higher-level felony cases, in which prosecutors are hindered by or unwilling to depart below lengthy mandatory minimums. These have also been among the hardest cases to try during the pandemic because the trials are often lengthy. While judges have been willing to try some smaller cases, requiring jurors to come to the courthouse for a day or two, they have been far more hesitant to hold trials lasting a week or more. And while in many categories crime rates diminished during the pandemic, in other categories crime rates rose significantly, most notably murder cases.

As a result, a significant number of backlogged cases are murder cases. In Butte County, California, for example, 18 of the 600 backlogged cases in superior court are murder cases. Dani Masten, 600 Cases at Butte County Superior Court Backlogged Due to the Pandemic, Action News Now, June 30, 2021. Butte County District Attorney Michael Ramsey reports that the backlog of 18 represents approximately the number of murder cases they would usually try in two years. Washington has 225 pending murder cases, compared to last year when they had 140. Jim Rogers, Justice Delayed: COVID-19’s Staggering Criminal-Case Backlog, Seattle Times, Apr. 7, 2021. Hunt County, Texas, with a population of right around 100,000, had 10 murder trials pending, according to a March 2021 article in the Herald Banner. Brad Kellar, Multiple Murders Still Pending in Hunt County Courts, Herald Banner, Mar. 20, 2021.

The backlog in murder cases presents unique challenges for public defense providers, which means the backlog for these cases cannot be resolved quickly. There are a limited number of attorneys with the requisite experience to try a murder case, so reassignment to other less-experienced attorneys is not viable.

Moreover, murder cases require extensive time for preparation and trial. According to a recent public defense workload study conducted by ABA SCLAID and consulting firm Crowe in Indiana, public defenders require, on average, 232 hours for a noncapital murder case in which the individual is not facing life without parole and 311 hours in a case in which the individual is facing life without parole. ABA Standing Comm. on Lawyers’ Pro. Liab., The Indiana Project at 24 (2020). Under these standards, qualified public defenders can handle, at most, between six and nine murder cases per year. Even if defenders were able to complete some of this work during the pandemic, e.g., discovery review and other preparatory steps, much of the attorney time in a case comes in preparing for and conducting the trial. These numbers demonstrate why justice systems will likely require years to catch up from the pandemic’s prolonged closure.

Prior experience with court closures bears this out. Chief Public Defender for Harris County, Texas, Alex Bunin noted that they had not yet caught up from the backlog resultingfrom court closures following Hurricane Harvey (2017) when the pandemic began in March 2020. The pandemic closures have only worsened their backlog. Harris County had more than 600 pending murder cases in July 2019. As of May 2021, that number has increased to over 950.

Backlogs create enormous problems for both prosecutors and defense attorneys. Investigations, if not conducted promptly, are difficult to conduct thoroughly. Video evidence, if not collected, is often taped over. Witnesses become more difficult to relocate and bring to testify. Memories deteriorate. In short, the ability to adequately build or defend a case decreases as time goes past, meaning backlogs impact not only the timing of justice, but the quality of justice.

Prolonged Detention

At the same time, individuals facing the most serious charges are the most likely to be detained pretrial—meaning they are awaiting their trial in jail. The backlogs created by the pandemic have extended those wait times dramatically. In many jurisdictions, speedy trial rights have been suspended, meaning there is no deadline by which an individual must be brought to trial or released. In Illinois, for example, the state supreme court suspended speedy trial rights in April 2020. Asked about reinstatement in June 2021 by Injustice Watch, a spokesperson for the court could not provide a timeline. In the meantime, Injustice Watch noted that “[a]s of June 15, there were about 5,300 people in the Cook County Jail detained pretrial—up from about 4,350 last year. More than 2,000 people have been incarcerated at the jail for a year or longer.” With the backlogs created by the pandemic, these individuals might well spend multiple years in jail before a trial date is available.

Indefinite pretrial detention can have devastating consequences. It can unfairly push an individual with legitimate defenses to take a plea deal, particularly when the detention may continue past the length of incarceration proposed in a plea agreement. As Jay Buckley, a public defender in Sullivan County New Hampshire, told the Valley News, “if you’re charged with something, you’re held indefinitely, so of course you want to take a deal. . . . You’re not going to stick around in jail.” Anna Merriman, NH and Vermont Courts Try to Catch up on Backlog Cases from the Pandemic, Valley News, June 4, 2021. It can also cause severe depression. Suicide is the leading cause of death for people in jails. According to the Prison Policy Initiative, even before the pandemic extended jail stays, “[s]omeone in jail is more than three times as likely to die of suicide as someone in the general U.S. population.” Leah Wang, Rise in Jail Deaths Is Especially Troubling as Jail Populations Become More Rural and More Female, Prison Pol’y Initiative, June 23, 2021.

A New Hampshire man detained pretrial on a domestic violence charge who has spent 18 months in jail pretrial and still has no trial date voiced his frustration in the same Valley News article. “It’s infuriating to be told you’re accused of a crime and thrown in jail, and then told to shut up and sit down.” He called the ongoing delay “a continuous stab by the justice system. . . .There are days when I want to scream, but it’s not going to do me any good.”

Online Courts and Other Services

In some jurisdictions, courts are seeking to address their backlog by continuing and even expanding the use of online procedures introduced during the pandemic. Online processes can help public defense attorneys in certain circumstances. For example, being able to conduct virtual visits with incarcerated clients has helped public defenders increase client communication and reduce travel time.

Online court hearings, however, raise serious concerns regarding the due process rights of the accused when used to address detention, evidentiary hearings, or criminal trials. See, e.g., Jason Tashea, The Legal and Technical Danger in Moving Criminal Courts Online, TechStream, Aug. 6, 2020. For this reason, the ABA House of Delegates passed a resolution in 2020 calling for “a considered and measured approach in adopting and utilizing virtual or remote court proceedings established as a result of the COVID-19 pandemic, prioritizing use of such procedures for essential proceedings and those cases in which litigants consent to the use of virtual or remote processes.” Resolution 117A2020 (Aug. 3–4, 2020). The ABA resolution further urges that “mandatory use of virtual and remote court proceedings during the COVID-19 pandemic continue for as short a time as possible and in no event longer than the duration of the declaration of emergency issued in the jurisdiction.” Id.

Despite these concerns, public defenders are facing a big push to continue and even expand the use of online court. Throughout the pandemic, public defenders have raised concerns about the quality of representation that they can provide remotely. When clients do not have two devices, the attorney cannot communicate privately with the client during a hearing, and judges are often hesitant to stop the proceedings to allow clients and defense lawyers to confer. Eva Herscowitz, Are Virtual Courtrooms Here to Stay?, Crime Rep., June 28, 2021. Further, while the impact of remote proceedings on decision-making in criminal cases has not been sufficiently studied, many defenders believe that appearing virtually has negative consequences for their clients. As one defense attorney told the Crime Report, “I like in-person sentencings because I think it humanizes the person a lot more than seeing some disembodied head on the screen.”

The continued use of online court proceedings after courts reopen may also complicate, rather than simplify, attorneys’ schedules. Public defense attorneys and prosecutors often darted between courtrooms to address issues in multiple cases and before different judges on the same day. Having some court proceedings online and others in person might require attorneys to have access to a private space with wireless access to permit them to attend the online hearing from the courthouse. One defender reported that she went out to her car to attend online proceedings when she has in-person court the same day.

Conclusion

The pandemic’s impact on public defense will take years to fully understand. The objective fact is that the pandemic has created an extraordinary backlog of cases and that the resulting delays harm the individuals accused of crimes, particularly those who remain in pretrial detention. The solutions to this backlog, however, are not clear. The benefits and harms of proposed solutions, like the continued or expanded use of online hearings, must be evaluated carefully and must prioritize the interests and due process rights of the accused individuals.