Published May 22, 2020 on Salish Current.org
From local courts to federal ones, stay-at-home orders and social distancing guidelines have had a significant effect on the wheels of justice across the United States.
In Washington, a State Supreme Court order has delayed all jury trials until after July 6. In addition, all non-emergency civil court matters have been delayed until after June 1, unless courts can properly conduct hearings telephonically or by video.
For many courts, this means an indefinite stoppage of most hearings, creating backlogs of cases and the possible headaches for plaintiffs, defendants and those who represent them.
For the accused, it may mean an indefinite stay in jail before a bail hearing, loss of a job or opportunity to work, or a weakened case once their day in court finally arrives.
Living in limbo
Bellingham lawyer Adrian Martinez Madrone is used to going to court. The private criminal defense attorney normally finds himself in a courtroom every day, mostly for scheduling and administrative hearings. But since the COVID-19 pandemic struck in March, he hasn’t set foot inside one.
“It’s essentially come to a complete standstill,” he said of normal proceedings. “The only court hearings that are really happening now for criminal cases are when someone gets arrested. And even that is not happening as frequently as it used to.”
While courts are all technically still open and accepting filings, they are essentially closed to the public, Madrone said.
Under normal circumstances, Madrone explained, an arrested person’s case is quickly reviewed by a judge, and bail is set. A person either posts bail and awaits arraignment while out of jail, or fails to make bail and remains incarcerated. Arraignments must happen within a specified window of time, but under the current ruling, the State Supreme Court has suspended that window. This means that, for anyone lacking bail, the amount of time sitting in jail may be undefined.
Although none of Madrone’s arrested clients have been unable to afford bail since the pandemic began, he said there are likely public defenders being confronted by such a situation right now. In many cases, Madrone said, attorneys may ask a judge to have a client’s bail reduced or to have them released, either due to a risk of getting COVID-19 in jail or because it’s simply unfair he or she be held indefinitely under the circumstances.
In some cases, he added, local law enforcement officers are being given instructions to reduce the number of people being booked into the Whatcom County Jail for certain crimes, such as DUI.
“In the past, if you were processed through for a DUI, you definitely were going to get booked into jail in Whatcom County,” he said. “Now, they’re not booking people on DUIs. Instead, the law enforcement officer will process them — do the field sobriety and breath testing, get their address and information — and then they’ll just release the person.”
Once released, a person will likely either get a ride home by an acquaintance, taxi or even a police officer, or simply walk home.
For some clients, delaying restitution for breaking the law may be a relief. For others, having unresolved legal matters may hang above their heads like a black cloud. This is especially true for those who might have court-ordered monitoring, such as an ankle bracelet or an ignition-interlock device on their vehicle. While these devices might normally be used for only a month or two, Madrone said it’s now possible some might be stuck with them for significantly longer if courts don’t pick up their cases soon — leading to possible issues with travel or employment.
The stress of unresolved legal problems is especially difficult for clients who are awaiting court dates and eager to assert their innocence and contest charges, as opposed to settling or pleading down, Madrone said.
“They may have lost their job, they may have lost their housing, and they can’t really get those things back until their criminal case is settled,” he said. “And if we can’t go to trial to challenge the case, then that person is stuck.”
From weeks to years
Federal immigration courts, which have already been notoriously backlogged with cases, are seeing further delays — not just for weeks or months, but for years.
Leta Sanchez, a Skagit County-based immigration attorney, says she has multiple clients whose long-awaited days in court have been pushed from this year until 2022 or 2023. Part of Sanchez’s practice hasn’t been affected by COVID-19, but the other half — handling partial immigration removal defense cases at a federal immigration court in Seattle — is creating immense uncertainty among her clients, many of whom want to gain residency and continue their lives in the United States.
Although clients cannot be deported while their case is delayed, that often does little to ease the emotional burden of things.
“They’re in this limbo that can be very difficult and stressful,” she said.
These delays can also have negative effects on a case itself. Evidence and circumstances, Sanchez said, can often change. In one case, Sanchez represented a mother of four children whose case was delayed two years. Part of her case hinged on why her children, then minors, would suffer if she couldn’t remain with them. Two years later, one of the children will no longer be a minor, meaning some evidence will no longer be valid. It all means Sanchez must often re-prepare for trials and re-organize collected evidence.
“It leads to a tremendous amount of double work,” she says. “It’s not like you get to walk into court in two years and rely on what’s been filed.”
Pressure to settle — for less
Benjamin (“Ben”) Pepper, a Bellingham personal injury attorney, has seen all his clients’ civil trials suspended indefinitely. Although Pepper can still file cases at the Whatcom Superior Court clerk’s office each day between 9 and 11 a.m., being able to get clients the settlements they need for things like medical expenses is now on hold.
Many clients, worried about income loss the pandemic has wrought, are calling him and asking to settle prematurely for less money than their settlements would bring, either out of fear or necessity. One client, Pepper said, was a business owner who said he had to choose between bankruptcy or case settlement.
“It’s not ideal for them, it’s not ideal for me,” he said. “It’s hard to get fair value for a case, regardless of the time factor, if we don’t have the leverage of telling an insurance company, ‘Hey, if you don’t treat us fairly, we’ll wait you out and we’ll go to court.’”
In addition to losing time re-preparing for trials, Pepper said it can be discouraging to have to settle cases prematurely for those who may end up needing more money down the road for medical issues.
“I never, ever want to run into a situation where I settle a case for someone, and six months later they come to me and say, ‘Hey, I found out I really do need back surgery,’” he said. “Patience is a virtue in this business, and unfortunately, the financial hardship is definitely causing some clients to feel pressure to settle sooner.”
A waiting game
When and how various courts will handle their case backlogs is anyone’s guess, but Madrone posits it may happen slowly — at 10 or 20 cases per week.
He estimates Bellingham Municipal Court already has more than 100 backlogged criminal cases, and the felony division of Whatcom County Superior Court about 60 to 80. The longer things are disrupted, the more pressure will be on courts to adopt telephonic and video hearing methods to catch up, something Madrone said many courts have been resistant or slow to embrace.
To catch up, said Bellingham Municipal Court Administrator Darlene Peterson, “we plan to begin turning to regular calendars in June but this will be telephonically and through video appearance. We anticipate running double calendars and adding more to be able to address the backlog that has accumulated during March, April and May.”
And although the State Supreme Court has provided overview guidance on a changed legal landscape due to COVID-19, Madrone said that individual courts are all handling things differently. Much like our nation’s piecemeal, state-by-state handling of virus restrictions, altered court procedures are continuing to alter the way justice is dispensed.
“There’s definitely not uniformity,” Madrone said. “Some courts are doing a better job than others, and that is definitely a real challenge.”