Federal courts around the country are halting jury trials and other proceedings due to COVID-19 concerns. That will create a backlog that could harm access to justice in already overburdened districts.
At first, only people who had been exposed to the coronavirus or were experiencing flu-like symptoms were barred from entering Maryland’s federal courthouses.
But after Gov. Larry Hogan announced he was activating the National Guard and closing down public schools, U.S. District Judge James Bredar decided to take a stricter approach. As chief judge of the District of Maryland, he suspended nonemergency court hearings and canceled all jury trials.
It was a difficult decision, Judge Bredar told Law360 minutes after issuing the March 13 order. While he was still planning to hold initial appearances so newly arrested criminal defendants could be advised of their constitutional rights, he delayed other criminal proceedings — a move that will run afoul of the Speedy Trial Act, which sets deadlines for criminal prosecutions.
“We decided the ends of justice are served by ordering these postponements because the reasons for having those postponements outweigh the interest of the public in having a speedy trial,” he said.
He also weighed another “key factor” when crafting his order: The long-term effect the delays would have on the district’s caseload. It takes on average about a year to close a criminal felony case in Maryland — a wait that’s nearly twice the national average. While that doesn’t rise to the level of a judicial emergency, Judge Bredar said, “on the criminal side of our docket, the caseload is very heavy.”
“Unquestionably when we come out the other side of this event, dockets will be very crowded and we will need to make up for lost time,” he said.
Maryland is just one example of an emerging national quandary. For the last two weeks, chief judges across the nation have grappled with whether — and how much — to limit court operations as public health officials urge Americans to limit the spread of COVID-19, the disease caused by the novel coronavirus.
Such decisions pit access to justice issues — ranging from criminal defendants’ liberty interests to civil litigants’ livelihoods — against public health concerns, and there are no easy answers.
Those decisions are especially difficult in districts that were already grappling with a slow-burning emergency before the coronavirus struck.
Several different but related factors contribute to that caseload crisis.
First is the sheer number and complexity of filings. States that are home to many tech companies, like California, or many pharmaceutical companies, like New Jersey, might see a lot of intellectual property cases with reams and reams of paper. In border states like Texas and Arizona, immigration cases overwhelm the courts, especially under a Trump administration policy that charges undocumented immigrants with criminal illegal entry.
The federal judiciary regularly analyzes the docket of each district for complexity. The result is then divided by the number of judgeships allotted to the district, yielding “weighted caseloads.”
The benchmark of 430 weighted cases is considered a manageable docket. New Jersey has more than twice as many cases, with 1,044 per judgeship. Louisiana's Eastern District has the highest weighted caseload, with an average of 1,200 per judge.
Other factors can exacerbate that problem. While filings have climbed, the number of judges on the bench has stagnated. Congress has not passed a large-scale judgeship bill since 1990, when 69 permanent district court positions were created. Since then, judgeships have inched up by about 4%, while filings have increased by at least 38 percent.
And there are districts where empty seats on the bench have long sat empty. Those include New Jersey, where six of 17 judgeships are unfilled, California’s Eastern District where 10 of 28 seats are empty, and Washington’s Western District, where five of its seven seats are unfilled.
The coronavirus delays will likely add a backlog to these courts, said James Sandman, the former president of the Legal Services Corporation, and chair of a new American Bar Association task force formed to handle legal needs arising from COVID-19.
“You’re injecting a very significant additional delay into court systems that in many places were already overburdened, and I don't think the impact will go away when the coronavirus wanes,” he said. “This is a jolt to the system, and it’s not likely to dissipate quickly.”
Ordinarily, less burdened districts have loaned judges and resources to courts struggling to keep up with caseload. But there isn’t a single district that hasn’t been touched by coronavirus, according to U.S. District Judge Denise Page Booth, chief judge of the Eastern District of Michigan.
“This is just an extraordinary time,” she told Law360. “I don’t think we’ve had anything like this. When Hurricane Katrina hit, for example, we could move criminals to other jurisdictions. We don’t have that. This is pervasive across our whole country.”
Criminal Trial Rights On Hold
Criminal caseloads have been somewhat insulated from this, thanks to the Speedy Trial Act of 1974, which sets deadlines for federal prosecutions. It ensures that defendants don’t sit in jail indefinitely waiting for their day in court.
But he did so knowing jury trials are likely logistically impossible, especially now that the Centers for Disease Control has recommended canceling gatherings of 10 people or more.
“Even a simple empanelment of 12 jurors requires a larger pool of people, about 40 or 50,” Judge Saylor told Law360. “I cannot imagine how many summonses we’d have to issue, how many people would be willing to serve, how many alternates we would need.”
“It’s easy to say everything will be postponed, but it’s hard to know what to do about that person who is in jail awaiting trial,” he added.
Miriam Conrad, who serves as the federal public defender for Massachusetts, Rhode Island and New Hampshire, feels torn about this. On the one hand, she can understand the need to protect the health of judges, attorneys and U.S. Marshals. On the other, she worries about her clients in custody.
“The question is how long will this last,” she said. “Even though under the Speedy Trial Act, whether a person is in custody or not is not a deciding factor, it’s obviously important to us that our clients aren’t held indefinitely awaiting trial when they are presumed innocent and they obviously have a big liberty interest at stake.”
The Bureau of Prisons has made it very difficult for inmates to receive visitors, including legal counsel. But it’s not just clients' trial rights that concern David Patton, federal public defender for the Southern District of New York — he also worries about the safety of defendants incarcerated in the Metropolitan Correctional Center in Manhattan and the Metropolitan Detention Center in Brooklyn.
“Those places are god awful in the best of times,” he said. “They’re unsanitary, unhygienic and overcrowded in the best of times. They don’t provide adequate medical care in the best of times. They don’t have sufficient staffing in the best of times.”
And their population is likely to go up, he said, because while few cases will proceed under the new standing orders, prosecutors show no signs of slowing down.
“Unfortunately, the U.S. Attorney’s Office has told us that it’s business as usual, and they’re continuing to bring their typical number of cases,” he said.
Before the coronavirus, in both Massachusetts and New York’s Southern District, felony cases took about a year on average to reach disposition — that’s nearly twice the national average of seven months. But both Conrad and Patton said they didn’t feel the courts were too slow before the disease hit.
Conrad noted that the national average might be skewed by immigration proceedings in border districts, where defendants are sometimes advised of their rights and plea en masse. She said she’d prefer to have the time to prepare a case thoroughly than have “a system where there is undue pressure to resolve cases quickly just for the sake of expediency.”
But, she said, the situation now is different.
“If a case is ready for trial now and we’re just going to put it on hold for six months to a year, that’s concerning,” she said.
The Civil Side
The civil docket has borne the brunt of the caseload crisis until now, because such litigation usually isn’t subject to the same statutorily required speed as criminal cases. That shows no sign of abating. In some courts, like the Southern District of Texas, civil jury trials were postponed before criminal trials.
“In cases that involve injunctive relief, you may be looking at denials of federal benefits that affect the livelihoods of people, you may be looking at civil rights violations that a plaintiff is seeking to enjoin,” he said. “You could be looking at stays of deportation proceedings. Those have a very significant impact on individuals. Their liberty and livelihoods would be affected if relief were not quickly available.”
The good news, he said, is that temporary restraining order petitions and requests for temporary injunctive relief are by their nature emergency hearings, and most are based on legal argument, not fact analysis.
“That’s exactly the kind of hearing that can be done remotely, with very little impact on the integrity of the hearing itself,” he said.
In the Southern District of Texas, where judges have an average weighted caseload of 703 cases, more than twice the national average, Chief Judge Lee Rosenthal postponed all trials, but she said most hearings are continuing telephonically, and that no other deadlines have been delayed.
“The backlog should be a limited one,” she told Law360. “We in the Southern District of Texas all know the importance of prompt action when the current constraints relax and then lift.”
In Massachusetts, Judge Saylor is eyeing that future warily. Two judicial vacancies in that court system have been left unfilled for years, and it takes 32 months for the average civil case to go to trial.
“One of the things I'm concerned about in the back of my mind is, at some point, this will be over and we’ll have to disentangle all of this,” he said. “Everything's going to have to be back on the calendar. That’s going to be a challenge.”
Sandman hopes when the dust settles, needy federal courts will get the funding and additional judgeships they need. For now, his task force is trying to help district courts share best practices, since “a lot of the work being done is dispersed and siloed.”
But he also hopes BigLaw will pitch in.
Sandman noted that Paul Weiss Rifkind Wharton & Garrison LLP launched a pro bono effort recently to help low-income workers access benefits programs. He hopes to see more firms help legal aid organizations set up technology to manage their caseload remotely and to see more pro bono lawyers pitch in to help winnow the backlog, particularly once courtrooms open their doors.
“I am optimistic that we will see a lot of cooperation and an outpouring of volunteerism,” he said.
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--Editing by Rebecca Flanagan.