Public Defenders Speak Out About The Tolls Of COVID-19

By Rachel Stone | February 21, 2021, 8:02 PM EST

On a busy day during the beginning of the COVID-19 pandemic, Dayna Jones, a supervising attorney at the New Mexico Law Office of the Public Defender, wakes up early and heads to her office in rural Alamogordo, where she will meet with her clients and walk them through one of the most stressful days of their lives.


They will proceed to the rust-colored courthouse under the shadow of the Sacramento Mountains, and Jones will remain in court until well into the evening. She will hurry home, then try and make it through the rest of the evening without her two children knowing just how exhausted she is.

Dayna Jones, a supervising attorney at the New Mexico Law Office of the Public Defender, has worried about returning to jury trials amid high COVID-19 infection rates in her area.

The COVID-19 rate in Alamogordo skyrocketed over the last few months, leading the court to temporarily halt jury trials and shift hearings online until February, when they resumed.

When we spoke in December, Jones worried about the return of jury trials. She worried about her staff taking on their existing caseload plus what has piled up since the pause, and encouraged her colleagues to mentally prepare for the avalanche of work to come. She worried about her clients languishing in jail waiting for resolutions.

She also worried about jurors' safety. "We actually had a juror on oxygen over the summer, and it preoccupied my mind," Jones said. "Even if we're following all the protocols — is this worth it for a misdemeanor case in the middle of a pandemic?"

For public defenders, the pandemic has exacerbated almost every aspect of their jobs' difficulty, with little recourse or recognition. "My partner is an EMT; everyone seems to recognize the toll it takes on him as an essential worker, but people don't think about the toll it takes on us," Jones said.

Jones' situation is not unique. Law360 talked with nearly a dozen public defenders across the country, who shared dispatches from disparate work situations.

In areas where in-person court operations haven't stopped despite a nationwide surge in cases, public defenders report slapdash safety protocols and crowded court hallways. Public defenders with paused trials say they feel like their hands are tied in a time when the release of an incarcerated client can mean the difference between life and death.

Though attorneys' situations differ across state lines and the whims of the presiding judges, nearly all agree on what must change: Get people out of jail, and the rest can follow.

Public Safety as Performance

One in three Los Angeles County residents have contracted COVID-19, the county health service reported on Jan. 13. The same week, volunteer court watchdog Court Watch Los Angeles tweeted an image from a city courthouse showing groups clustered in the hallway.

"Yesterday's @LASuperiorCourt COVID incident report included a new positive case on the third floor," the Court Watch tweet continued. "This is not safe."

Many courthouses closed during the early months of the pandemic, and touted safety measures when they gradually reopened. But some public defenders say many of the public safety measures were a performance of security theater.

The Los Angeles Superior Court system has mandated mask use, required appointments for visitors, constructed Plexiglas panels and put up signs meant to aid social distancing efforts.

But as Rebecca Brown, a legal fellow at Court Watch Los Angeles, told Law360, the court has only recently started informing staff about cases via incident reports tracking COVID-19 exposure. The first week of January, the reports revealed about 45 separate positive cases.

These incident reports were a welcome change, Brown said, allowing employees to know if they've been exposed to the virus. Before this, Brown said, people relied on word of mouth to know if they'd been exposed.

Los Angeles County deputy public defender Garrett Miller says contact tracing for those within the court system has been inadequate and uneven.

Yet Los Angeles County deputy public defender Garrett Miller told Law360 he has not been sent these incident reports. "Whatever contact tracing they're doing, it's lost on us because we will hear about [potential exposure] later and think, 'Wow, maybe I should have been told about this,'" he said.

Though "the Superior Court has done a lot of things they can report out," Miller is skeptical if the court is actually rigorously cleaning the small, cramped areas like lockups and designated spaces lawyers use to interview their clients.

Jury trials have stopped in Los Angeles for the majority of the pandemic. Still, the volume of misdemeanors and in-person hearings for offenses like traffic violation feels unnecessary, Miller said.

Early in February, nonprofit organizations brought a lawsuit against the Los Angeles County Superior Court's presiding judge for requiring attorneys and litigants to attend in-person traffic and eviction hearings, in court facilities where it is "impossible to maintain a safe social distance of six feet or more."

The court told Law360 in a statement that "the court has always notified the identified close contacts, including justice partners and attorneys, of those individuals who have tested positive for or been diagnosed with COVID-19," and that they have gone "much beyond the statutory requirements" in their contact-tracing efforts.

Though the new year began with new safety protocols, January ended with the deaths of two Los Angeles court interpreters, Sergio Cafaro and Daniel Felix, who died of COVID-19, according to a public statement made by the California Federation of Interpreters Local 39000.

The union put out a statement decrying the convoluted quarantine policy and what they called the "systemic failure by the court" to protect its workers.

The Los Angeles County Superior Court told Law360 in a statement that and that it provides appropriate leave and "has detailed protocols for assessing exposure, close contacts, quarantine and self-isolation instructions." The court said any statement "suggesting systemic failure by the court to safeguard the health and safety of personnel, justice partners and the public is patently false," and encouraged Law360 to not rely on "rumor and innuendo from social media."

"The court is extremely proud of the robust health and safety protocols put in place since March 2020," it said.

Concerns about the efficacy of in-person safety measures range beyond Los Angeles courts. One public defender based in the Gulf Coast told Law360 about how she feels more like a sacrificial lamb than an essential worker. "We're not even following science in our courts," she said, noting that social distancing measures inside courtrooms end up moving crowds to the hallways.

"The numbers are high enough that we shouldn't be in-person," the public defender said. "I honestly think our judge just wants to put on a show."

And calls for social distancing in court can make it more difficult for clients to confer with their lawyers during a trial. "I don't talk to my clients from six feet away," said Prya Murad, a public defender based in Florida. "I sit next to them if they're in custody. Everyone wearing masks means you have to be closer to your client because you can't hear them, and with interpreters it's even harder."

Carly Towne, an assistant public defender in Baltimore County, Maryland, district court, told Law360 that her court has seemed more focused on doing business as usual than imposing rigorous safety measures. She regularly sees low-level offenses like a client accused of stealing from a Taco Bell, or driving without a license.

Prya Murad, a public defender based in Florida, says calls for social distancing in court has made it more difficult for clients to confer with their lawyers during a trial.

She said the court erected a Plexiglas wall separating clients from the public, which Towne says doesn't work in practice. "There's no way to really talk with our clients safely, short of being in the hallway," she said.

Representatives from the Maryland Judiciary declined an interview request, but told Law360 in a statement that it has "as its top priority the health and safety of its employees, judges, our justice partners, and the public," citing "many precautions," including a mask mandate.

And regarding which cases are seen in person, the judiciary told Law360 that the decision is made on a "case-by-case basis," and that "district court cases are prioritized based on whether the defendant is incarcerated, whether the case involves a crime of violence, and/or an alcohol-related driving offense."

Still, some public defenders say that despite the risks, it makes enough of a difference to show up in person for their clients.

"Clients want to see their lawyers," Murad said. "We're put in this really frustrating position because everyone wants to protect their health, but mainly we want to protect our clients.

"People have different views on what they're comfortable with, but if I can get someone out of jail, I'm gonna do it," Murad said. "They're still making arrests, they're still holding people on bond, people are still getting charged with crimes. That part isn't changing. We've just changed everything else."

Please Join Zoom Trial in Process

Online advocacy can be similarly fraught. Though virtual appearances can mean people don't have to skip work or school to meet a court date, crucial aspects of the process can be lost, some public defenders said.

In situations where public defenders aren't able to reliably get in contact with their detained clients before trials, virtual hearings can also muddle the moments where clients can speak candidly with their lawyers.

One public defender based in the rural South who requested anonymity due to her office's strict outside communication policy told Law360 about how the local jail requires her to book an appointment with a client 24 hours in advance. If she hasn't received a plea offer from the prosecutor until after she's spoken with the client, she will have to convey the plea deal over Zoom, in open court, when she should be able to consult with her client in private.

"There's really no point in having a lawyer if all I do is say, 'Hey, yes or no, do you want this deal, and don't say anything else,'" she said.

And considering so much of the legal system hinges on credibility, Jones told Law360, technology can end up defamiliarizing people in a situation like a trial, when it's most necessary that people connect with litigants.

"I need a judge to look at my client and see them as a person, a human being," Jones said. "You lose a lot of that over the computer."

The Right to a Slow Trial

The alternative to online or in-person court — pausing trials during the pandemic — leaves incarcerated clients in legal purgatory, some public defenders told Law360.

And as jails and prisons remain COVID-19 hot spots — with The Marshall Project, a nonprofit covering criminal justice issues reporting in December that around 1 in 5 state and federal prisoners tested positive for the disease — any extra time spent behind bars can be exceptionally dangerous.

"If you're in prison for a burglary, that's not a death sentence — and you shouldn't have to worry that it's going to be," said Pima County, Arizona, public defender Nathan Wade.

In some states where trials have been suspended, public defenders say their caseloads have distended to unmanageable levels. Though some people have been incarcerated since before the pandemic, with no hope of a trial until the pandemic's eventual end, more people continue to be arrested, charged and added to existing public defenders' dockets.

Marci Johnson, an assistant public defender in Baltimore City who works mostly in the circuit court, told Law360 that her docket has more than doubled from her previous, pre-COVID-19 busiest period.

Though the district court in Baltimore is fully operational and requiring attorneys to come to in-person court, she's been in "complete stall mode" since March of 2020, with almost everything being postponed.

Without trial, cases are rarely dismissed, because the state doesn't have an impetus to put together its case, Johnson said. Though a good amount of cases usually get resolved, either by plea agreements or cases being thrown out when a witness or victim recants or chooses not to proceed, an absence of trials means the process grinds to a halt, she said.

In May 2019, Johnson's caseload comprised seven cases prearraignment, and 46 cases with a pending trial date. But in December 2020, Johnson counted 23 cases prearraignment, and 71 cases with a pending trial date. She closed just four cases in that entire month, and is not scheduled to begin even talking about possible jury trials again until the end of April.

"Everyone's stats are looking like this," Johnson said. "I'm not really sure how we're going to resolve these cases. Assuming that even half these cases go to trial, this could take years."

And while these delays mean her job can feel defeating, Johnson knows she is one of the lucky ones. She thinks about her clients who have to live in overcrowded jails, where social distancing is impossible and PPE might mean being given a single disposable mask. "It's scary to be locked up and scary to have people that you know or care about who are locked up," she said.

The Way Out

When court can become a superspreader event, virtual hearings can be confusing or potentially damaging to a client's case, and postponing trials leaves people in a deadly holding pattern, there are no "good" solutions to myriad issues that plague public defenders trying to advocate for their clients during the pandemic.

"The real way to keep everyone safe is to let people out of jail during this time, and stop arresting and charging people," said Jacqueline Newsome, an assistant public defender in Philadelphia. "Free them all, that's the answer."

To her, the problem isn't that courts are stalled and people can't get their cases resolved. The problem is deeper than that, and has more to do with ,just how badly the United States criminal legal system is constructed. And the answer is more about changing who the system chooses to penalize, versus picking the safest or most effective way to figure out COVID-19 courts.

"As public defenders, we continue to show up ... because we feel compelled to, for the sake of our clients," Newsome said. "The DA office and the police are making a decision that this is necessary. We are there because we've committed ourselves to our clients and to their liberty.

"I want us to be careful not to make this a savior complex thing," Newsome continued. "I'm a Black woman and I represent mostly Black and brown people. But though I am putting myself at risk, in some ways I'm not the center of the issue because I have a different set of resources."

Ultimately, history will be the legal industry's harshest judge, according to Newsome, telling Law360: "We will be ashamed of ourselves that we kept people in prisons and jails during a pandemic."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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