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As pandemic lingers, the criminal bar has due process concerns

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Criminal Law Section logoAs the COVID-19 pandemic lingers into a fifth month, members of the Criminal Law Section are expressing concern about the lack of jury trials — and its impact on everything from the rights of the accused to training the next generation of lawyers.

At an August 14 Zoom edition of the “Connect: A Criminal Law Conversation Series,” section members heard Chief Justice Charles Canady’s frank assessment that while the surge in COVID-19 cases appears to be slowing, it’s too soon to predict when the suspension will be lifted.

“I wish I could tell you that this is going to be over by the end of the year, but we don’t know, and anybody that tells you they know is kidding about that,” he said.

The chief justice was added at the last minute to a guests speaker list that included section Chair Warren Lindsey, former Bar President Hank Coxe, Fourth Circuit State Attorney Melissa Nelson, 15th Circuit Public Defender Carey Haughwout, Miami criminal defense attorney Jose Quiñon, and U.S. District Judge Marcia Cooke.

Hank CoxeAfter Justice Canady concluded his remarks, Coxe asked panel members to discuss various concerns about the health crisis and its impact on the criminal justice system. Responses ran the gamut from speedy trial issues and budget cuts to the composition of juries and the potential pitfalls of remote technology.

Judge Cooke told section members that like Justice Canady, judges in the U.S. Southern District are putting safety first — but that doesn’t mean they oppose resuming jury trials.

“Please disabuse yourself of that notion,” she said. “We want people to come to the court to be safe, and we want people to come to the court and feel safe, and we want people to come to court and work safe, but we are simply not there yet.”

A work group is meeting weekly to study the issues for the Southern District, Judge Cooke said. Questionnaires appended to a standard jury summons will help court officials excuse high-risk individuals early in the process and reduce courthouse traffic, she said.

But Carey Haughwout, the 15th Circuit Public Defender, said excluding high-risk individuals from jury pools could raise more concerns. COVID-19 is disproportionately afflicting seniors and minority communities.

“Even when we get trials, we are going to have a serious challenge with jurors who represent all of our communities,” she said. “It’s one thing to have a trial, it’s another to have a fair trial.”

Haughwout said she is also concerned that the suspension of speedy trial is putting more pressure on suspects to plea bargain. Incarcerated suspects are losing access to witnesses and evidence as they await their day in court, she said.

“I think the question about are we coercing pleas is a really good one…that concerns me a great deal,” she said. “The question starts becoming, what about the constitutional rights to speedy trial?”

Meanwhile, Haughwout said, her office, which has about 120 attorneys and 80 support staff to handle an excess of 50,000 cases a year, is dealing with budget cuts. There will be fewer resources to handle a backlog of cases when jury trials resume, she said.

“While arrests are down, and that’s a good thing, cases aren’t moving,” she said.

Haughwout said her office is training new hires with mock trials while jury trials are suspended.

Warren LindseySection Chair Lindsey said the pandemic forced the cancellation of the Gerald Bennett Prosecutor/Public Defender Trial Training Program, a week-long event the section sponsors every year with the University of Florida College of Law.

Since 1979, the program has trained more than 2,000 young prosecutors and assistant public defenders.

“That was a good training ground,” Lindsey said. “And that’s sort of illustrative of the problem that we have — I don’t think you can really duplicate those programs.”

Panel members said remote technology has worked well in some circumstances, such as eliminating travel expenses for out-of-state witnesses. But some said there are limits to the types of proceedings they would be willing to conduct via videoconference.

Lindsey said judges in Florida deserve to be praised for switching rapidly to videoconferencing and “taking lemons and making lemonade.”

“I’ve had good experience with Zoom depositions, when the other person is in another state,” Lindsey said. “One of the problems is…it’s difficult to know if you’re directly enforcing the rule about not having other people in the room when someone is testifying.”

Jose Quiñon, a prominent Miami defense attorney, said his clients have too much at stake to conduct high-stakes proceedings remotely.

“I would have difficulty doing a motion to suppress,” he said. “I’m very leery where you [could have] a witness, and they’re getting answers by text.”

Quiñon said he is already having trouble meeting with clients and building the rapport necessary to gain their trust. He couldn’t imagine trying a case with participants wearing protective gear.

“The client has to feel that you are championing their cause — you can’t have the same type of relationship,” he said. “So, I am at a loss as to how we can have jury trials in the near future.”

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