News Release

Nation’s Criminal Defense Bar Alarmed by ‘Rush to Resume Normal Court Operations’ During Escalating Pandemic

Washington, DC (July 24, 2020) – The National Association of Criminal Defense Lawyers (NACDL) released a critically-important statement of principles and report in early June -- Criminal Court Reopening and Public Health in the COVID-19 Era. As multiple jurisdictions are rushing to resume criminal jury trials while the nation enters its darkest weeks thus far in the uncontrolled coronavirus pandemic, this NACDL statement of principles and report is even more relevant than when it was issued.

“NACDL notes with grave concern the rush to resume normal criminal court operations in many jurisdictions just as the nation surpasses four million confirmed positive cases and approaches 150,000 deaths,” said NACDL President Nina J. Ginsberg. “No defendants should be forced to choose from among their various constitutional rights in place to ensure just and fair proceedings. That said, in some cases, accused persons may have to choose between their right to a speedy trial and their other rights, including the right to confront witnesses, the right to a public trial by a jury representing a fair cross section of the community, and the Sixth Amendment right to robust access to one’s counsel, to name a few. But that is a choice to be made by the holder of those rights – individual defendants -- and not a decision to be imposed upon them. Indeed, no one ever should be told that they cannot participate fully and meaningfully in their own defense.”

NACDL’s Executive Director Norman L. Reimer added, “Courts are congregate settings that will accelerate virus transmission. Clients, witnesses, lawyers, judges, all court personnel, and the public should not have to risk their health or their lives simply to move court dockets. We are especially concerned that the disparate impact of the virus on minorities, older individuals, and the poor will result in jury pools that will undermine the right to a jury that reflects a fair cross section of the community.”

When it issued its June statement of principles and report, NACDL was clear: Jury trials are not safe for any of the stakeholders in such proceedings until the COVID-19 pandemic is under control. As stated in the NACDL 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.”

Ultimately, as explained in NACDL’s June 4, 2020, statement:

“Virtual or remote proceedings are inherently inconsistent with fundamental constitutional rights. Accordingly, among the recommendations included in the report are that the use of virtual proceedings be limited to the maximum extent possible, both in scope and duration, and only used with the knowing and informed consent of the accused. The report calls for far greater use of pre-trial release and other mechanisms, such as providing the accused with the unilateral right to elect a bench trial where that right does not already exist.”

The full Statement of Principles and Report is available at: https://www.nacdl.org/Document/CriminalCourtReopeningAndCOVID-19.

NACDL’s extensive coronavirus resources, including materials specifically relevant to court reopenings, is available at: https://www.nacdl.org/content/coronavirusresources.

Contacts

Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.