By Jody Godoy

Law360 (March 17, 2020, 9:18 PM EDT) -- Federal criminal courts are dealing with the coronavirus pandemic in various ways, some of them unprecedented, as judges grapple with their role in safeguarding defendants' rights and keeping the public safe.

As more courts put off the vast majority of proceedings, questions are coming up about what to do with criminal defendants awaiting trial.

Former U.S. District Judge Shira A. Scheindlin, now of Stroock & Stroock & Lavan LLP, said judges will have to weigh defendants' rights differently than usual in light of the ongoing emergency.

"The key word is balancing everybody's interests," Scheindlin said. "Defendants do have an interest in a speedy trial, but the court and the public have an interest in everyone's safety."

Sticky situations came up this week in trials that were ongoing as the World Health Organization declared the coronavirus a pandemic.

One trial in New York was nearly derailed Monday when two jurors reported feeling ill. One was cut, while the other was allowed to videoconference in to deliberations, a move attorneys said was unprecedented. The defendant, an Iranian businessman accused of sanctions violations, was convicted soon after.

Andrew G. McBride, a partner at McGuireWoods, said the move raises concerns under the federal rules of criminal procedure, which allow for a jury of 11 only if a court finds it necessary to cut a juror after deliberations start. McBride described the situation in Manhattan as similar to having a panel of "10 and a half."

"Is that juror less able to deliberate than the other jurors? We all know that being virtually in a meeting is not the same as being there yourself," McBride said.

The government lobbied for a mistrial, citing the juror's potential access to outside information, possibly indicating that prosecutors viewed the move as a violation of rules that could present fodder for an appeal, McBride said.

In Northern California, the trial of suspected Russian hacker Yevgeniy Aleksandrovich Nikulin was paused due to the coronavirus, causing prosecutors to file a brief laying out the existing law on mid-trial continuances.

Shortly thereafter, the chief judge vacated all trial dates before May. The trial judge, U.S. District Judge William Alsup, is scheduled to hold a status conference Wednesday.

For trials that haven't started, attorneys say the biggest concern surrounding postponement will be for defendants in detention.

In their blanket stay orders, chief judges in the Eastern and Southern Districts of New York explicitly noted the concern of defendants awaiting trial behind bars.

"The court is cognizant of the right of criminal defendants to a speedy and public trial under the Sixth Amendment, and the particular application of that right in cases involving defendants who are detained pending trial," wrote Judge Colleen McMahon in the Southern District and Judge Roslynn Mauskopf in the Eastern District.

Scheindlin, the former judge, said the coronavirus is certain to figure into defendants' bail applications.

"I think that is a new factor for the court to consider," she said. In considering pretrial detention, federal judges are usually charged with deciding whether bail conditions can ensure the safety of the community and the defendant's appearance in court.

"Balancing now this new factor, if it was a close call on the other two, you might see some people who were held on bail being released," Scheindlin said.

Defense attorneys for Isaiah Kingston, a man who pled guilty and testified as a witness in a massive tax fraud trial who has been in detention in Utah, urged a judge Tuesday to release him on bail now that the trial is over.

"One of the most compelling changes, and consideration, comes in the wake of the coronavirus pandemic," wrote attorney Scott Williams, citing Kingston's underlying health conditions. The judge ordered the government to reply by the next day.

Aside from detention concerns, defendants' usual rights are being subsumed by the need to contain COVID-19, the disease caused by the swift-spreading virus. The Constitution doesn't quantify how "speedy" a speedy trial has to be, and the U.S. Supreme Court has found no violation even where delays were much longer, said McBride, the McGuireWoods partner who had been a Supreme Court clerk.

The Speedy Trial Act requires federal criminal trials to begin 70 days from charges being made public, but allows that deadline to be suspended for a number of reasons, including the judge's determination that a continuance would serve the "ends of justice." Some judges have gone into detail on what that means during a pandemic.

U.S. District Judge Cathy Bissoon of the Western District of Pennsylvania issued a standing order in her criminal cases Tuesday staying all criminal proceedings given their "in-person nature."

While the judge allowed for defendants and the government to ask for exceptions, she said they "should understand that risks to public health and to the health of attorneys, litigants, court personnel and law enforcement will not be taken, except in the most exceptional of circumstances."

While filing and discovery deadlines will still apply, the judge made clear that even those take a backseat to public health.

"Extensions of time to perform certain tasks will be granted liberally, particularly if such extensions are due in any way to illness or practical considerations caused by the COVID-19 pandemic," Judge Bissoon wrote.

While courts are shifting some hearings over to telephone, criminal defense attorneys were unsure whether videoconferencing could replace in-person appearances in criminal cases, where defendants have the right to be present. 

If the defendant was separate from his or her lawyer for a proceeding and videoconferenced in, it would be harder for the attorney and the accused to confer privately as they often do in criminal proceedings. If the lawyer was with the defendant, the lawyer could be at a disadvantage, for example by being less able to catch all the nuances of a judge's reaction.

Jason A. Jones of King & Spalding LLP said the unprecedented crisis creates "an endless set of logistical and practical difficulties."

"The longer this crisis drags out, the more creative the courts are going to have to be in finding ways to accommodate public health concerns and the defendants' rights," Jones said.

Things are only somewhat different for cases on appeal. The Second Circuit just allowed for counsel to opt-in to remote argument, an option that attorneys and even circuit judges already sometimes use. However, it's unclear how many attorneys will take the court up on the offer.

Given the choice, Jordan Matthews of Weinberg Gonser LLP, who practices in the Ninth Circuit, said he would prefer a delay.

"In all cases, I think you really want to be in front of the court, as counsel," Matthews said. "If I had to phone it in, I would certainly select a continuance."

--Editing by Kelly Duncan and Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.