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Second DCA, for a second time, denies request to halt Sixth Circuit criminal jury trials

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Bob Dillinger

(Editor’s Note: This story was updated the afternoon of November 3 after it was learned the Second District Court of Appeal denied the request.)

The resumption of criminal jury trials in the Sixth Circuit should be blocked because a resurgence of COVID-19 cases means the circuit no longer complies with the Supreme Court’s administrative orders for resuming jury trials during the pandemic, according to Sixth Circuit Public Defender Bob Dillinger.

Dillinger on October 30 filed an ultimately unsuccessful petition for writ of prohibition, or alternatively for certiorari, with the Supreme Court on behalf of defendant Tymelle Huntley. That came days after Dillinger failed to get a delay for another defendant from the trial judge and the Second District Court of Appeal upheld that ruling.

Shortly after it was filed, the Supreme Court transferred the petition to the Second DCA. On November 2, a panel consisting of Judges Darryl Casanueva, Edward LaRose, and Andrea Smith denied the petition without explanation.

“The harm Mr. Huntley is seeking to prevent now is the risk of transmission of COVID-19 to himself and the other parties, and all the attendant violations of his due process rights that will occur if he is forced to go to trial during a global pandemic,” the petition said.

One of the issues in the petition — the unique challenges for criminal defense attorneys and their clients who need frequent contact during trials — has also drawn attention and discussion from lawyers and judges around the state as criminal jury trials are resuming.

Jury selection was scheduled to start in Huntley’s trial on November 3.

According to the petition, the circuit’s first criminal jury trial since the pandemic stopped jury proceedings began on October 27 and Dillinger sought a delay for COVID-19-related reasons. The trial judge refused, and the Second DCA upheld that decision.

The judge in Huntley’s case citing the original decision also denied a new objection from Dillinger’s office.

Dillinger in the Supreme Court petition cited several reasons for delaying the trial:

• Both the weekly average of positive cases and the rate of case increases in Pinellas County are above standards set by the Supreme Court in its administrative orders detailing how jury trials could resume. Under the administrative orders, Dillinger said that means the circuit has to revert from “Phase 2” where jury trials under strict conditions can be held to “Phase 1” where jury trials cannot be held, or change its operational plans. Neither, the petition said, has been done, and it added, “An honest evaluation of the numbers would dictate that the Sixth Judicial Circuit needs to either amend its Operational Plan or revert to Phase 1. This Court should accept jurisdiction and direct the Sixth Judicial Circuit to come into compliance with this Court’s Administrative Orders and follow the approved decision matrices regarding operation of the Circuit in a particular phase.”

• In the past few weeks in the Sixth Circuit State Attorney’s Office, five investigators, one legal assistant, and two assistant state attorneys have tested COVID positive, and all work in the courthouse where the Public Defender has offices and the courtrooms are located.

• The assistant state attorney handling the first trial had close contact with one of the infected prosecutors before the positive test but was allowed to continue with the trial after testifying that both had been wearing masks.

• The Pinellas County Jail has COVID-19 cases and has limited since March in-person meetings between attorneys and clients. Since March, 179 inmates have been tested and 76 were positive. The jail has around 3,000 inmates. Huntley has not been at the jail since March, but the defendant at the first trial was incarcerated and was brought to the two-day trial to sit by his public defenders.

• Huntley’s constitutional rights are affected if jurors worried about COVID-19 risks rush their deliberations or are reluctant to review exhibits or evidence.

Dillinger said the issue needs to be addressed because more than a dozen criminal jury circuit trials and several more county trials are scheduled by the end of the year and defendants and others involved in the trials have no post-trial remedies if they are exposed to the virus.

Dillinger’s petition, which was also signed by Assistant Public Defenders Allison Ferber Miller and Maria DeLiberato, may be found here.

The Supreme Court, in sending the case to the Second DCA, wrote, “The transferee court shall treat the petition as if it had been originally filed there on the date it was filed in this Court and is instructed to consider expediting the petition as it appears to be time sensitive based upon the allegations; however, a determination to expedite consideration is at the discretion of the transferee court.”

The issue of public defenders and private defense attorneys needing to have frequent, confidential contact with their clients during trials has been an issue with those planning for the resumption of criminal jury trials.

“I think the jurors are the primary concern of the court and they are probably the most protected,” said Eighth Circuit Public Defender Stacy Scott. “The least protected is the defense attorney. The defense attorney is seated next to the client, they have to have instant ability to have confidential communications.

“….Our court administration has done everything they can to make it as safe as possible. I don’t know how you make it safer. That part of it is inherently unsafe.”

Scott said some defendants have sought trial delays because of COVID-19 concerns, but those have not been granted.

Florida Association of Criminal Defense Lawyers President Mitchell Stone serves on the Fourth Circuit committee that is advising the local courts about restarting jury trials.

“It’s a dilemma that I don’t see resolving until we get a vaccine or a cure or somehow get control of this virus,” Stone said. “How do you protect the attorney who has got to be in close proximity with the client. There were all kinds of discussion about masks and using plexiglass, we even looked into radio communicators so we could have these private communications.”

And there may be no perfect system, he said.

“When you’re in a room like a courtroom, no matter how big, and you have six to eight jurors and two prosecutors and two defense attorneys and the judge and the courtroom personnel — the more people you have in a room, the more potential someone is infected,” Stone said. “From circuit to circuit, and courtroom to courtroom, they’re doing the best they can to protect the people who may come through.”

 Judge Nushin SayfieEleventh Circuit Judge Nushin Sayfie, who is the administrative judge for the criminal division, said the circuit has prepared for resuming criminal jury trials, but so far those that have been scheduled have been resolved. One case is tentatively set for the week of November 9.

She said for public defenders, electronic headsets — similar to those used now for defendants needing translators — will be available for them and their clients allowing them to instantly communicate but also maintain a social distance. If they need to confer without the devices, that will be accommodated.

“It’s going to call for extra patience. A trial that would normally take two days now may take longer,” Sayfie said. “We’re going to have to go slow and accommodate it. We believe we can accommodate it safely as long as we can keep the numbers in the courthouse down overall and everyone is wearing masks.”

A town hall meeting is set for early November to review plans, and Sayfie said three medical pandemic experts examine the protocols and must sign off on all procedures.

“We’re sticking with what the doctors tell us is safe,” the judge said.

Another factor is the county jail tests all inmates when booked and quarantines as necessary, which has resulted in a low infection rate.

In the Ninth Circuit, Chief Judge Donald Myers said the first two juries for criminal trials were selected on October 26. One case settled and the other wrapped up a couple days later. A third case was expected to finish on October 30.

He said the court has struck a balance that keeps defense attorneys and the defendant separated but with the ability to instantly consult.

“That’s a fundamental constitutional right and we recognize and understand that. We’ve had a great deal of conversation around ensuring a defendant is capable of communicating openly and effectively with their counsel,” Myers said.

The solution is to allow “defense counsel and the defendant to be able to move together for brief periods during the trial to be able to communicate. If the communication that can occur during those brief instances is insufficient, then the court will be happy to take a break,” he said.

There’s a special room, with a glass partition, for those conferences, Myers said.

The courts are working with the Sheriff’s Office, which is screening inmates and has kept infection rates low, and everyone entering the courthouse is screened, Myers said. And only courtrooms large enough to provide social distancing will be used.

He also said the courts have little choice but to try to safely resume trials.

“We know we are several years’ worth of trial days behind because of the pandemic,” Myers said. “We know we are substantially behind, but we have a plan. We can accomplish this safely and ensure that every defendant’s rights are protected in the process.”

Part of that plan, he said, is continual tinkering to make improvements, from instructions to help jurors put on their clear face masks (not shields) to signs pointing out the numerous locales of hand sanitizer.

With a viral opponent, plenty of tinkering may be needed. Scott, the Eighth Circuit public defender, noted that on October 30, trials set for the following week in Alachua County were postponed because of rising community infection rates.

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