Ga. Judges Back Bills To Address Criminal Trial Backlog

By Rosie Manins
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Law360 (April 23, 2021, 7:48 PM EDT) -- Georgia state judges say a proposed extension of speedy trial deadlines and expansion of remote hearing authority, which still need a final signoff from the governor, would help them deal with a case backlog caused by the pandemic.

Two key bills, S.B. 163 and H.B. 635, were pushed through the state General Assembly in late March, near the end of its 2021 legislative session, at the request of the Georgia Judicial Council. S.B. 163 would extend the tolling of statutory speedy trial requirements beyond the expiration of pandemic-related emergency orders, and H.B. 635 includes a proposal from the council's COVID-19 taskforce to allow state trial courts to use a wider range of alternative locations for court proceedings, including jury selection and trials, thus letting judges perform their duties remotely.

The Georgia Judicial Council on Friday met remotely to discuss how judges need to get ready to implement the legislation July 1, assuming Gov. Brian Kemp signs off on the changes. The tolling of speedy trial requirements is the highest priority to the council, Georgia Supreme Court Presiding Justice David E. Nahmias said in the council meeting.

Justice Nahmias told state judges to start gathering data for the certification they'll need to get up to an eight-month extension of statutory speedy trial deadlines under S.B. 163. The bill would provide that certification on a county-by-county basis, rather than to individual cases, and courts would have two years from July 1 to apply for that tolling period. Currently, those deadlines are tolled through an existing judicial emergency order.

Georgia defendants by state law can request to be tried within a reasonable time frame and become eligible for acquittal if their case isn't dealt with before the end of the next regular court term. S.B. 163 would require certification by the chief judge that complying with existing requirements would be impractical under a series of factors laid out in the legislation — including above-average criminal caseloads, below-average case clearance rates, the number of pending speedy trial demands, the number of jury trials being held per court term, ongoing space limitations, health and safety concerns, limited availability of jurors and efforts to reduce the number of defendants awaiting trial in custody.

The legislation also would require the certification include "a plan for emerging from the need to suspend the requirements as quickly as possible," Justice Nahmias said. The bill would allow the tolling of constitutional speedy trial demands, which must continue to be followed.

Chief Justice Harold D. Melton had urged lawmakers during his final State of the Judiciary Address in March to support S.B. 163, saying state courts would be overwhelmed without it. 

H.B. 635 would open more locations for trials and allow judges to lawfully perform their duties remotely, regardless of their physical location. It also would let criminal case inquiries be conducted through audio-visual technology, rather than in-person.

The bill also would give judges more discretion over bench trials, and would temporarily authorize district attorneys to use accusations, rather than grand jury indictments, as formal charges. The bench trial and accusation provisions of H.B. 635 would expire on June 30, 2022, but there is no sunset on the allowances for alternative locations and remote proceedings.

"All of the items, our key pandemic-related priorities, were enacted," Justice Nahmias said. "We had a very successful [legislative] session."

Justice Shawn E. LaGrua, chair of the council's COVID-19 taskforce, said Georgia state courts are starting to hold jury trials again after more than a year of suspensions due to the pandemic. She said the judiciary was afraid fewer people would be willing to serve as jurors due to pandemic-related health and safety concerns, but that the opposite has been true.

"The numbers are actually up, the attendance level is up," Justice LaGrua said in the council meeting. "It's in large part due to all the work that went in on the front end, making sure the courthouse was easy to navigate, that jurors were being made to feel safe and socially distanced, and that the court actually cared about making sure they were comfortable."

Justice Melton said that when he first lifted the suspension on state court jury trials in October, he received almost daily complaints about what judges were perceived to be doing wrong in operating courts. But since lifting the trial suspension for a second time in March, he has not had a single complaint.

"It's night and day, so whatever you are doing, keep it up, it's making a difference," he told judges in the council meeting. "Word is getting out to the communities, so I do think that when those summons go out people will be more inclined to respond favorably and do the work."

Jury trials are also starting back up in Georgia federal courts, since the start of the pandemic in March 2020.

Atlanta litigation attorney John C. Amabile of Parker Poe Adams & Bernstein LLP told Law360 on Friday he expects it to be difficult in the next couple of years to get a civil case tried in Georgia, given the courts' backlog of cases and tendency to prioritize criminal matters.

Amabile said companies involved in civil litigation would be wise to consider alternative dispute resolution such as mediation or arbitration to have cases dealt with in a reasonable time.

"Certainly civil trials are going to be behind criminal trials, and in Superior Court they're probably going to be behind domestic disputes," Amabile said. "Especially in metro Atlanta, it's never easy to get on a jury calendar and now it's even harder."

--Additional reporting by Emily Sides. Editing by Orlando Lorenzo.

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