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Courts pivot to deal with the COVID resurgence

Senior Editor Top Stories

VirusFrom the death of a Daytona Beach circuit judge and the suspension of jury trials in Sarasota, to a public demand for more remote proceedings in Jacksonville, the latest COVID-19 surge is taking a toll on Florida’s courts.

Florida’s daily death toll reached 227 on August 24, and according to a New York Times database, average daily cases reached 23,314 over the weekend, 30% higher than a peak in January.

The fatalities include Seventh Circuit Judge Steven C. Henderson, who died after being hospitalized with COVID-19, according to an August 26 report by the Daytona Beach News Journal. The 49-year-old jurist and former prosecutor left behind a wife and six children.

Twelfth Circuit State Attorney Ed Brodsky said 94 employees of the Sarasota County Sheriff’s Office were recently out with COVID symptoms, 60 of whom tested positive.

Some court proceedings were cancelled because of a lack of deputies to transport inmates from the jail, where an outbreak has many sick or under quarantine, said Brodsky.

“We had a trial that we started yesterday, it was a traffic homicide case, and unfortunately the defense attorney’s child got COVID, and they had to continue the case,” he said.

Brodsky stressed that the disruptions are only minor, and largely due to the jail outbreak.

“We’ve had sporadic outbreaks among court officials, the judiciary, public defenders, prosecutors,” he said. “But it hasn’t been overwhelming, and it hasn’t been anything significant, we’ve been pretty fortunate here.”

On August 25, 12th Circuit Chief Judge Charles E. Roberts issued an administrative order temporarily suspending jury trials.

In Administrative Order No. 2021-16.2 “Re: Order Temporarily Suspending All Jury Trials Effective August 30, 2021” Judge Roberts praised jurors for their willingness to return to the courthouse “by the hundreds” in June, when the pandemic subsided.

But times have changed, Judge Roberts notes.

“Unfortunately, Desoto, Manatee, and Sarasota counties continue to show alarming upward trends in positive COVID-19 cases,” Judge Roberts wrote.

The order cites a 14-day trend that shows a 67% increase in cases in Manatee County, a 49% increase in cases in Sarasota County, and an 87% increase in cases in DeSoto County.

“Compelling so many people from the community to report for jury duty and then placing them together in jury assembly rooms or courtrooms for extended periods of time creates too great a risk of COVID-19 exposure and cannot continue under current pandemic conditions,” Judge Roberts wrote.

Brodsky, who is president of the Florida Prosecuting Attorneys Association, acknowledged that the suspension of jury trials will make it harder to reduce a backlog of pandemic-related cases that has been estimated to top 1 million statewide.

“I would say that I am fairly concerned,” Brodsky said. “For the past two days, I have been talking to my chief assistants about it, and we’re working on some ideas to help identify some cases that can be resolved to help address the needs of the jail.”

In an August 12 letter, defense attorneys in Northeast Florida urged Fourth Circuit Chief Judge Mark Mahon to suspend all in-person hearings for the next 30 days, “barring an exceptional circumstance.”

In the letter, Jacksonville attorney Shannon Schott, president of the Northeast Chapter of the Florida Association of Criminal Defense Lawyers, urged Judge Mahon, among other things, to more rigorously enforce a courthouse masking mandate.

The letter also asks that Judge Mahon give private lawyers greater access to a jail video conferencing system, and order judges to conduct all pretrial hearings via Zoom, or alternatively, conduct a private attorney pretrial calendar daily or weekly via Zoom.

“Practicing law effectively and being efficient should not be a matter of life and death,” Schott wrote. “These are uncomplicated ways to keep everyone in the circuit safe, including the criminal defense attorneys upon whom you rely to move cases forward.”

In an interview, Schott said that Judge Mahon responded promptly and promised to continue monitoring the outbreak and keep the court facilities safe.

“But it failed to address a lot of our concerns,” she said.

Schott described her concerns in interviews with local reporters.

On August 26, Judge Mahon entered an administrative order that gives lawyers the ability to appear remotely in a criminal matter, and “the presiding judge will consider the motion, and the proceeding will be conducted remotely, unless the presiding judge determines that in the interest of justice, the proceeding must be conducted in person,” the order states.

FACDL members began working on a draft of the letter at a statewide conference last month after hearing stories about fellow lawyers, judges and court personnel contracting COVID-19, even though they were vaccinated and scrupulous about wearing masks, Schott said.

Miami attorney Jude Faccidomo, statewide president of FACDL, is worried that more circuits will be forced to suspend jury trials.

“That’s what’s likely going to have to happen in many of the other circuits where COVID is about to explode,” he said.

Eleventh Circuit Chief Judge Nushin Sayfie and Administrative Judge Andrea Wolfson met with Faccidomo earlier this summer and agreed to make more robust use of remote court proceedings for routine matters, Faccidomo said.

“I have to give them a lot of credit,” he said.

But that hasn’t been the case in other parts of the state, Faccidomo said.

Faccidomo issued a letter in July to Chief Justice Charles Canady and all chief judges, urging greater use of remote proceedings for “non-essential” matters.

“In our initial statement, we cautioned that if we didn’t take immediate action and revert to remote proceedings, we were going to have to take more drastic measures like we’re seeing in the 12th Circuit,” he said. “There’s very few things criminal defense lawyers like more than saying I told you so, but unfortunately, this is not one of those situations.”

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