Jury Suspension Strands DC Jail Defendants

COVID Scrambles the District System of Justice

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Photo: Andrew Lightman

In May 2020, a 20-year-old man was arrested for armed carjacking and robbery. In April, a 19-year old man was arrested for an assault with a dangerous weapon.  Months later, neither have been indicted on these charges. Both remain held in DC Jail. Their extended detention is far from unique, as the coronavirus pandemic has upended the DC court system.

On March 18, 2020, the DC Superior Court suspended juries due to the dangers posed by the COVID-19 pandemic. By Jan. 22, 2021, 751 people are confined in DC Jail pre-trial, a 57 percent increase from the 478 held at the end of March.

Under the Code of the District of Columbia, a person arrested and detained on a felony charge must be tried within a hundred days or released. In March, the Court paused this requirement.

“It’s unconstitutional,” said Attorney Elizabeth Weller, who represents the two jailed defendants. Weller has appealed their extended detention in the DC Court of Appeals, one of several attorneys in the District to do so.

“It violates the protections we have for people who have not been convicted of a crime—people who are by default not guilty because they haven’t been proven guilty. And their liberty is being taken from them without ever having a true finding of ‘guilty’,” Weller stated.

In its examination of the extended detention of pre-trial defendants during the pandemic, Capital Community News interviewed over two dozen defense attorneys, DC Superior Court’s Chief Judge of the Criminal Division, Chief of the Superior Court Division for the US Attorney’s Office of DC, a city council staffer, people currently and formerly incarcerated in DC Jail and criminal justice and jury experts.

The suspension of juries has reduced the options for detained defendants to obtain a resolution of their predicament to: filing a bond review motion, taking a plea deal, requesting a bench trial or successfully securing a dismissal. For defendants unsuccessful at petitioning for their release, who seek to argue their innocence before a jury, these options provide inadequate relief. In the meantime, detention itself imposes tremendous personal costs on defendants.

COVID Suspends Juries
For most felonies, the DC Code requires defendants to be indicted within 90 days of their detention and tried within 100 days of that same date. Otherwise, barring extensions, defendants must be released.

“There are some occasions where those hundred days become a little loose and flexible,” as there could be additional days added for continuances for a valid reason, but in the past there was at least a framework for when a defendant’s case would go to trial, said Carrie Weletz, a DC defense attorney.

On March 18, DC Superior Court’s then Chief Judge Robert Morin suspended court proceedings due to safety concerns amid the novel coronavirus pandemic. The 100-day trial clock was “tolled,” meaning it was paused. Jury trials in progress proceeded, but new trials were not scheduled. Grand juries were also suspended. On May 14, 2020, the DC Superior Court formally suspended all criminal trials. It continued its suspension of the 100-day clock, as it would again in subsequent orders, the most recent of which was issued on Jan. 13.

Under DC statute, the Chief Judge may suspend statutory and rules-based timelines in the event of natural disasters and emergencies. The Court determined COVID to be such an emergency.

“Because when the pandemic began, we were not in a position to summon jurors into the building, it was obviously necessary to suspend that hundred-day trial clock,” Superior Court’s Criminal Division Presiding Judge Juliet McKenna told CCN.

In December, the Court resumed bench trials. However, the chances of acquittal are greater with jury trials than with bench trials, according to Attorney Henry Escoto. “You’d rather have twelve people deciding your fate than one,” Escoto said.

Notably, in 2019, less than half of felony defendants were delivered a guilty verdict in jury trials, compared to 80 percent in bench trials.

For defendants who want their day in court before their peers, the wait continues.

This month the Court announced its intention to resume some felony trials beginning on March 22. These would be limited to defendants who had trial dates set before the pandemic charged with certain felonies, excluding, for instance, Weller’s clients. The heavy backlog of cases and limited trial capacity will extend delays, especially for people who were arrested since the onset of the pandemic.

“A lot of decisions that the Court has made have been responsible decisions for the pandemic or for the public health at large and they’re not in an easy position,” said Joseph Scrofano, a DC defense attorney.

“But the one area that’s most problematic about what’s happening with this delay are people who are held without bond having very little recourse or mechanism to get out of jail while they are presumed innocent,” Scrofano stated.

The District releases the majority of defendants after their initial court appearance. In 2019, 94 percent of all defendants and 75 percent of defendants with felony charges were released. In 2020, 76 percent of felony defendants were released.

Beyond the pause in jury trials, some defendants have still not been formally charged with a crime. Typically, an average of five grand juries are seated, according to the US Attorney’s Office for the District of Columbia (USAO-DC). Since October, when grand juries resumed, only one has been sitting intermittently. Prosecutors were unable to empanel new grand juries before the New Year.

While 1,477 felony cases have been filed in Superior Court between March 18 and Nov. 30, federal prosecutors had only obtained 61 indictments during that time. As a result, many defendants remain detained in the absence of formal charges.

In the meantime, COVID’s scrambling of the jury system imposes costs on those detained in DC Jail, considered innocent until proven guilty.

Detention’s Costs
As of Jan. 21, 232 residents of DC Department of Corrections (DC DOC) facilities had tested positive for the virus. Yet less than 40 percent of residents reporting symptoms had been tested, and sometimes even weeks later according to a brief filed as part of a lawsuit from American Civil Liberties Union (ACLU-DC) and the Public Defender Service (PDS) of DC challenging conditions at the jail.

Experts, cited by the brief, found around 100 examples of violations of COVID regulations in a single shift. This was after a June preliminary injunction in the case ordered the Jail to improve access to medical care, increase health resources and alter their COVID-19 policies.

Since April, most residents in DC are confined to their cells 23 hours a day. Also, in an effort to stem infection, the jail has eliminated visitation from family and friends.

Anthony Petty spent the last months of a 30-year sentence at the DC Jail until his recent release. As a mentor with the Young Men Emerging Program, Petty witnessed how the pandemic affected people held in the jail awaiting trials and indictments.

“Problems really come [with] some of the mental things people go through 23 hours for months and months at a time [when they] are being locked in the cell,” said Petty.

Residents of the Jail haven’t been outside since March, as part of the lockdown, Petty said.

The pandemic is exacerbating the difficulties of being jailed. Detained defendants may lose their jobs, income which their families may rely on, Petty said. They may have rent to pay and children who they need to take care of. “So now it’s [detention] affecting the whole family structure,” he explained. Petty is an Advisory board member of Neighbors for Justice, an organization founded this summer supporting residents of the DC Jail.

“So it’s a lot of aspects of this pandemic that really messed everything up,” Petty added, characterizing the situation as “cruel and unusual punishment.”

The DC Dept. of Corrections (DOC) did not respond when asked to comment.

“Potentially, you have clients who have cases that they certainly could prove their innocence beyond a reasonable doubt before a jury and they’re sitting incarcerated during a pandemic at a jail that currently has its fair share of cases of COVID-19,” said Attorney Stephen LoGerfo.

“A lot of individuals want their day in court. They are innocent until proven guilty and they’ve maintained their innocence,” said Sweta Patel, a DC criminal defense attorney. She does not fault the court system or judges for the situation. However, Patel termed extended detention beyond the amount of time defendants would typically serve a “miscarriage of justice” that would “take a toll on someone really wanting to fight for their innocence.”

Petitioning for Release
In response to a flurry of COVID-19-related bond review motions filed and more anticipated, a few days after it suspended juries, the Superior Court instituted procedures for filing these motions. Almost every defendant being held pretrial in DC Jail has filed at least one, if not multiple motions for such relief, according to the USAO-DC.

Between March 15 and Dec. 5, 2020, DC Superior Court received 1,365 bond review motions for 1,033 individual defendants held for felony and misdemeanor charges. “Almost all of them included some basis for relief due to the pandemic,” said Judge McKenna.

Judges granted only 33 percent of those motions. 16 percent were pending, as of Dec. 5. However, for felony defendants, the approval percent dropped to 26 percent.

Understanding the reluctance of judges to release defendants charged with certain felonies, Attorney Julie Swaney believes judges are becoming “immune to the arguments about how unsafe the jail is.”

While there have not been many reports of increasing COVID-19 at the Jail, this “still doesn’t erase the risk for our clients to be congregated with other people and especially the staff to be coming in and out from their communities,” Swaney added.

For defendants unsuccessful at securing release, few options remain.

Pleading Guilty
In 2019, almost 95 percent of cases ended without a trial. Indeed, the majority of cases are resolved through the negotiated plea agreements between defense attorneys and prosecutors. In these deals, an admission of guilt is often exchanged for a reduction in charges or a lighter sentence. The pandemic threw a wrench in the plea system.

During the pandemic, the number of plea deals for both detained and non-detained defendants significantly trails pre-pandemic rates. In 2019, the Superior Court approved an average of 170 plea agreements per month, including guilty pleas and dismissal plea agreements. Between March 18 and Nov. 30, 2020, only 491 plea agreements were accepted.

Before COVID, the Superior Court did not explicitly allow defendants to virtually plead guilty to felonies. This past summer, the Court commenced virtual proceedings for felony guilty pleas and sentencing.

Even with the recent increase compared to the start of the pandemic, the number of plea deals is “still a shadow of what it would be during normal times,” stated the USAO-DC’s Chief of the Superior Court Division John Hill.

There are other reasons for the continued decrease in plea deals.

Before the pandemic, if an attorney and the government decided on a plea, they could schedule a court hearing the next day, explained Attorney John Machado. Now, scheduling is much more complicated and can require as much as two to three weeks notice, he said, since judges cannot move from case to case as quickly in a virtual setting.

“Getting time before a judge is a much more challenging commodity to get,” said Machado, though he acknowledged that judges are trying up to open up more courtrooms.

Beyond logistical barriers, Escoto explained other reasons for the drop in pleas. These include the need during the pandemic to file a motion to request a hearing and increased difficulty meeting with incarcerated clients to research and analyze cases.

Still, Escoto noted, detained clients “are more willing to not challenge the allegations at trial and plead out their cases to reduce incarceration.”

Despite the drop in plea deals, defense attorneys remain worried that the lack of jury trials has or could increase pressure on those under pretrial detention to offer an admission of guilt to expedite the disposition of their case.

There is “no doubt in my mind” that individuals are taking offers due to the delay in jury trials, Attorney Patel said.

Swaney has clients who had been released, she said, and were “very eager to exercise their right to trial,” who are now detained for a pretrial violation or re-arrest for something relatively minor, but who had a pending felony. “That has completely changed the calculation for them,” she said, regarding plea offers.

For crimes without mandatory sentences, a plea can be more appealing to defendants if they think they will be released, said AJ Amissah, a defense attorney who practices in Superior Court.

“We do our best to counsel our clients” that they do not have to plead guilty, Amissah said. “But it’s almost hard not to understand why they take a plea even if they think they’re innocent because the likelihood is that they’re going to be held for a long time,” he pointed out.

Asked about the increased pressure on detained defendants to take plea offers, US Attorney Hill stressed the importance placed by his office and court on the voluntary element of such deals.

“We certainly understand that these are unprecedented times and that presents new challenges for defendants and that many are being held beyond the time they would normally be held before they would have an opportunity for a trial,” said Hill, adding that many defendants wanted to plead guilty earlier, but did not have the opportunity to do so.

While Judge McKenna hopes the pandemic has not placed additional pressure on defendants to take pleas, “I would be naïve if I said that it is impossible,” she observed. “That is one of the very reasons that we thought it was imperative to resume the jury trials for those defendants being held in jail pending trial.”

“We do not want there to be a situation in which any individual is facing any possible risk of being detained beyond the statutory maximum that they could face at the time of sentencing,” said McKenna. “We wanted to avoid imposing that sort of pressure or onus by offering up the opportunity to resolve cases by actually being able to exercise the right to have a trial.”

The Superior Court and USAO-DC plan to reboot jury trials and grand jury proceedings in 2021.

Looking Forward
Several defense attorneys have challenged the constitutionality and legality of their client’s detention in the DC Court of Appeals.

“It’s well established that liberty is the norm and that detention prior to trial is supposed to be the carefully limited exception and we have case law and we have statutes designed to make it the carefully limited exception,” said Attorney Anna Scanlon, who represented a defendant in one such appeal. That appeal has since been ended after her client took a plea deal contingent on its dismissal.

“Even though there is no doubt that the problem that COVID presents is vexing, that doesn’t mean we can just throw up our hands and say these people just have to sit in jail who are presumed innocent and that there’s nothing we can do about it,” explained Scanlon.

Weller has filed appeals on behalf of two clients. Their continued imprisonment “violates the most basic tenet of liberty” in the Constitution, she wrote in her bond review motions.

One of Weller’s appeals is pending. The Appeals Court returned the other to the lower court instructing the judge to reevaluate her client’s detention.

Weletz has also appealed the detention of a client indicted for burglary and armed kidnapping. It was consolidated with another case brought by the Public Defenders Service of DC. On Dec. 15, 2020, the DC Court of Appeals heard the attorneys’ statutory and constitutional arguments. Both defendants, Judge McKenna, and Hill declined to comment on the pending appeal.

“The court’s ruling on the application of the statute and the constitutionality of indefinite detention is likely to impact a large number of people currently who are being held pretrial with no trial date in sight,” Scanlon said.

While the DC Superior Court intends to commence jury trials for Felony 2 cases with previously scheduled hearings, the one hundred day trial clock remains paused for other detained defendants. Jury summons have not yet been mailed, according to a court spokesperson.

The public health challenges of resuming jury trials are not insignificant.

“Two months is a reasonable deadline to get all of the protections that need to be in place, and all of the procedures that need to be in place, for this to proceed safely on a small scale,” said Dr. Anne Monroe, an associate professor of epidemiology at the George Washington University Milken Institute School of Public Health. Given the rate of vaccinations in the city, Monroe emphasized that proceedings in March would need to be on a “limited scale.”

“Even once jury trials resume, in order to be able to safely and competently work through the backlog of cases, those timelines are going to have to remain suspended [tolled) for an additional period of time,” Judge McKenna said.

The wait for a jury trial could be much longer than March 2021, especially for those arrested after the pandemic began.

As for grand juries, the USAO-DC began the first of the year to empanel one a week the first two weeks of January, the office stated. Prosecutors are prioritizing detained defendants.

Even if new grand juries are empaneled in 2021, “[t]he judicial system is still only able to safely accommodate a fraction of the grand juries that were operational pre-pandemic,” Hill stated.

The Dec. 15 consolidated appeal will soon answer whether the city has statutory and constitutional authority to continue this practice in the midst of the ensuing pandemic.

DC is not alone in facing such challenges. A number of jurisdictions that resumed jury trials were forced to reverse course. A North Carolina county saw its first jury trial end in a mistrial, due to pandemic health concerns. On Dec. 21, Maryland courts, which had resumed proceedings, suspended jury trials until April. In York County, PA, criminal trials resumed in July only to be suspended on Nov. 30.

According to Center for Juries Studies Director Paula Hannaford-Agor, “with a couple of rare exceptions most large urban courts that would be the most similar to the DC Superior Court have done few or no jury trials.” In rural areas, there have been more such proceedings, she added.

“The pandemic took us all by surprise back in March so it’s understandable that it’s taken some time for the system to catch up,” said DC defense attorney Lee Smith at the end of December. Cases are starting to move, Smith continued, but not as fast as they should. “We’ve got to figure out a way to either get jury trials started again safely but much more quickly or […] figure out some relief for clients who are detained,” said Smith. For instance, Smith referenced the High Intensity Supervision Program of the Pretrial Services Agency of the District of Columbia, potentially combined with home confinement.

“Given the severe risk of the spread of COVID-19 inside courtrooms, the Court had to take unprecedented steps to suspend jury trials to protect public health,” said Ward 6 Councilmember Charles Allen (D), chair of the DC Council’s Committee on the Judiciary and Public Safety, in a statement.

“While it remains the right call, we can’t overlook the hardship and challenges it has placed on anyone who is awaiting their day in court and seeking justice,” Allen stated.

DC Witness, a non-profit dedicated to creating transparency in the District’s justice system, is providing data on criminal cases for this project. For more information, visit www.dcwitness.org.

Gavrielle Jacobovitz is a recent graduate of Columbia University and a reporter at Capital Community News. She has previously interned with HuffPost Politics and NBC Owned TV Stations.

This article was supported by a grant from Spotlight DC: Capitol City Fund for Investigative Journalism. Spotlight DC encourages the submission for proposals by independent journalists. For more information, visit www.spotlightdc.org.