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NACDL on Reopening Criminal Courts

July 13, 2020, Message from NACDL President Nina J. Ginsberg

Dear colleague,

I hope that you are yours are doing well during this challenging period. I write to you today about COVID-19 and efforts to reopen criminal courts in the United States. As you know, in June, NACDL released a critically important report and set of ten principles on this subject – Criminal Court Reopening and Public Health in the COVID-19 Era. Those ten principles are summarized at the end of this message, below my signature.

NACDL’s Task Force on Criminal Court Reopening, which I led, researched the unprecedented challenges for court operations caused by the COVID-19 pandemic in-depth and concluded that jury trials are not safe until the COVID-19 pandemic is brought under control. As explained in detail in the report, “[g]iven the nature of the disease and the manner of transmission, court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend.” The Task Force’s report, including its Ten Principles for Reopening Courts, were adopted by NACDL’s Executive Committee and released by NACDL to the public on June 4, 2020. I have to thank the Task Force members – NACDL First Vice President Martín Sabelli, NACDL Board Member Todd Pugh, and Stephen Ross Johnson, as well as NACDL Executive Director Norman L. Reimer – for the diligence and wisdom brought to bear in the effort to timely release this important report.

We know from the science that across the nation the characteristics of courtrooms, courthouses, and the proceedings that occur inside them, present precisely the type of settings in which the virus spreads most efficiently – enclosed spaces requiring close proximity for an extended period of time with sustained public speaking. While NACDL recognizes the inherent tension between the protection of an accused person’s fundamental right to a speedy trial and the delay necessary to protect the health and safety of everyone involved in jury trials, this statement of principles and report provide a roadmap to minimizing that constitutional burden while protecting the health and safety of all individuals involved in the conduct of constitutional criminal proceedings in the United States. There are also significant and unacceptable constitutional burdens on the accused that accompany criminal proceedings, live or virtual, in the midst of this uncontrolled pandemic, including on the right to counsel, the right to confront witnesses, the right to due process, and the right to a public trial by a jury representing a fair cross section of the community.

As the nation is now witnessing a dramatic increase in the spread of COVID-19, in particular in some of the states that were moving most quickly toward the reopening of criminal courts, this NACDL report and its recommendations are more important than ever. Indeed, in my own home federal jurisdiction, the Eastern District of Virginia, Chief Judge Davis issued General Order 2020-19 delaying the resumption of criminal jury trials until at least the middle of September. The Order extensively cites NACDL’s report (see pp. 13-15, 17, 19), including as respects the constitutional requirement that juries represent a fair cross-section of the community, highlighting the disproportionate impact of COVID-19 on communities of color. In fact, the National Center for State Courts conducted a juror poll last month in Texas that buttresses the concern of jury composition during this uncontrolled pandemic. Additionally, NACDL’s report has been cited in press coverage of court reopenings in North Carolina, Florida, and Missouri, among others.

As many of you are aware, back in March NACDL launched its Coronavirus Resource. I’m now asking that you send any motions, memos, rulings, and standards for resumption of criminal jury trials and/or the use of video-conferencing that you think may enhance NACDL’s ever-growing Coronavirus Resource to NACDL’s Senior Director of Public Affairs & Communications Ivan Dominguez (idominguez@nacdl.org). To address these efforts, there is a new section of the coronavirus resource – "Materials Relevant to Court Reopenings.”

I also call upon you, NACDL’s lifeblood, to share this report with your local and state courts, bar associations, professional networks, and local media. Indeed, some of you may have already had an opportunity to cite it in applications to continue proceedings on behalf of a client. When the American public is subjected daily to conflicting guidance as to how to proceed during this pandemic, NACDL has spoken clearly and unambiguously, backed up by science and public health considerations (see exhibits to the Report), about the grave risk to all participants in any criminal jury trials during this uncontrolled pandemic, including the public which has a fundamental right to attend.

I am so proud to serve you and this great Association. Thank you for all that you are doing.

Best wishes for good health to you and yours,

Nina J. Ginsberg

NACDL President

 

Summary of Core Principles for Reopening Courts

  1. In-Person Proceedings Must Be Certified by Independent Medical Experts to Present Minimal Risk of COVID-19 Transmission

  2. High-Risk Individuals Should Not be Required to Participate in In-Court Proceedings in Which There is a Risk of Infection in the Courthouse, Nor Should That Person or the Accused Suffer Any Penalty or Loss of Rights for Declining to Participate

  3. Any Measures Implemented to Address the Pandemic Must Be Limited to the Duration of the Pandemic and Tailored to Meet an Articulated Public Health Need

  4. Criminal Proceedings Require That Conditions Are Restored That Ensure Defense Counsel Can Meet Their Sixth Amendment Obligations, Including the Conditions Necessary for Robust, Ethical Attorney-Client Relationships

  5. Criminal Proceedings Require That Conditions Are Restored That Ensure Effective Representation by Conflict-Free Defense Counsel

  6. Constitutional Rights Must Not Be Abridged

  7. Use of Virtual Mechanisms Must Be Temporary, Limited, and Consistent with Constitutional Rights

  8. Use of Virtual Mechanisms Requires the Informed and Voluntary Consent of the Accused Based on a Robust Attorney-Client Relationship

  9. Any Measures Implemented to Address the Pandemic Must Not Exacerbate the Well-Recognized Historic Failures of the Criminal Legal System

  10. Courts Should Use Pre-Trial Release and Other Mechanisms to Minimize the Pressures on the Accused During the Pandemic, Including Affording an Accused the Unilateral Right to Elect a Bench Trial Where that Right Does Not Already Exist