In California, we have now been ordered by the governor to shelter-in-place. Our government is requiring individuals to give up rights, asking businesses to give up income, and asking our fellow community members to do our part to halt this crisis.
Yet, our courthouses are still compelling hundreds of community members to publicly gather-judges, staff, court reporters, interpreters, attorneys, clients, witnesses, victims, and jurors-occupying crowded spaces that defy all public health orders.
These individuals are then interacting with everyone in their networks and in the public for essential activities (groceries, gas, bank, doctor appointments, etc.). This is going to be the epicenter for the spread of this virus throughout our community. The number of reported cases in the United States jumped from 6,000 Wednesday to more than 10,000 Thursday. Further, this only covers reported cases and we know there are so many more that are going undetected with asymptomatic individuals.

Short and Long Term Solutions Needed

The president has said this would last until August and public health officials are saying this will last the next 12-18 months, so we need to develop solutions that will accommodate the dangers of today through the future.
We just saw the Merced County courthouse come to a halt Wednesday as it was determined during trial that an officer who was testifying was exposed to COVID-19. The judge, attorneys, defendants, and jurors involved in this trial are all being placed on quarantine. All of the DDAs and PDs in the courthouse may have also been exposed. This is going to start happening at courthouses everywhere as this virus multiplies which will cripple our criminal justice system.
We need to act now to protect everyone in the criminal justice system and the public as a whole.

Action Needed from Sacramento

While criminal courthouses throughout the country have shut down, California operates a bit differently because in addition to the federal constitutional requirements, California has enacted multiple specific statutory time requirements for how cases must be heard. While this assures the rights of defendants during normal state operation, during times of crisis this creates crowded and dangerously contagious courtrooms. This ties the hands of the chief justice from doing more to shut the entire court system down during a critical moment in this pandemic.
Action then rests in the hands of the Legislature and governor to draft emergency legislation to toll the California specific statutory requirements, deferring to the more flexible constitutional speedy trial rights, which will give courts the ability to address the massive influx of COVID-19 cases it is likely to be dealing with in the coming weeks and months. This should be a limited-basis piece of legislation utilized for public emergencies and should have to be constantly re-signed by the governor when utilized just as other emergency orders are handled. This will ensure it will not hinder the defendant’s rights unless there is a true public health emergency.

In the meantime, there are solutions our courts can enact to slow the progression of this virus as much as possible. The solution to the immediate problem is space, which our courthouses have, but are not using. In Fresno County there are a dozen trial courtrooms that could accommodate cases from the calendar courtrooms, where the majority of cases flow into. Rather than choosing this solution, Fresno and some other counties, likely in an effort to protect court staff from exposure, are crowding even more individuals into fewer courtrooms.

Judges and Staff at Risk

This is shortsighted because all of the judges and staff will be at risk as this virus spreads through the legal community. We need to be doing all we can to spread people out to minimize social contact and increase distance between all case parties. Every courtroom should be handling just a handful of cases. This can be done if every courtroom is open and if cases are staggered hourly rather than having the general masses all arrive at 8:30 am. This crowd of hundreds all trying to filter through security, up the elevators, and into a couple of rooms at one time is the worst system imaginable. This spacing and staggering is the only way to halt the spread of this virus.
In addition one of the most pressing solutions needs to be a focus on tele- and video-conference for all parties involved including attorneys, reporters, and defendants. This technology is currently utilized in our civil court, and in many civil and criminal courts throughout the state and country. All parties-judges, attorneys, reporters, and inmates could appear remotely. Telephonic appearances could be implemented immediately. The criminal court could utilize the technology that is already set up in the civil courthouse. More extensive technology, such as that allowing for communication with the jail, could be installed now.

This technology does not need to be installed in every courtroom but could be done in just a couple of designated courtrooms. Further, one area could be set up in the jail to accommodate this. This would allow the essential service of criminal justice to be administered without any risk to individuals and the community.

Fresno Courts at Tipping Point

The next solution needs to involve continuing cases. We are at a critical tipping point in Fresno where we could contain the virus and stop the community spread. For the next couple of weeks, we should be continuing everything possible to achieve this. The Fresno Superior Court has asked for, and received, the authority to extend time limits that are mandated by law. Though the authority was granted by the chief justice of the state Supreme Court, implementation has been sporadic and inconsistent. While the defense bar must, in accordance with their oaths and professional obligations, advocate for their client’s speedy trial rights, it is within the court’s power to extend out many of the cases beyond their usual dates based on the emergency facing the courts and public.
As Dr. Anthony Fauci stated in one of his daily press conferences, what we see today is likely two weeks behind where the virus actually is. We cannot wait to see how bad the damage is before taking action. In Fresno County, and in courthouses across the nation, judges, attorneys, and legislators need to be developing the processes and tools that will assure the constitutional rights of defendants while also protecting the public.
It can be done, provided that our leaders step up and lead with the willpower and character needed to make hard choices.

About the Author

Sabrina Ashjian is a public interest attorney who has been a consumer fraud prosecutor, public defender, and state quasi-judicial officer. She also serves on the boards of legal non-profit organizations including California Women Lawyers, California Lawyers Association Environmental Section, and the Fresno County Bar Association. 
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