Resuming trials after coronavirus delays- Fairfax criminal lawyer comments

Resuming trials after pandemic popstponements. Fairfax criminal lawyer provides this second part of a two-part article (the first part is here).

Resuming trial dates in Virginia raises the question about why the Virginia Supreme Court continues to suspend all jury trials. As a Fairfax criminal defense lawyer, I know that jury trials are a particular challenge to physical distancing, because jury boxes and jury deliberation rooms are not structured for a minimum of six-foot social distancing. At the same time, the Fairfax courthouse hallways and most Virginia courthouse hallways are narrow, so I anticipate a challenge maintaining sufficient social distancing in the courthouses once they resume regular non-jury proceeding schedules. On top of that, people should bring their umbrellas to the courthouses, because physical distancing rules when applied to lines to enter the courthouses likely will have people frequently spilling into the adjacent sidewalks. If the judges determine that physical distancing necessitates resetting selected trials, they will do so.

What does the Virginia non-resuming of jury trials do for speedy trial rights, especially for those detained without bond pending trial?

The United States Constitution’s Sixth Amendment and Virginia Code (for felony purposes) guarantee speedy trials to criminal defendants, with exceptions. The Virginia Supreme Court’s May 6 judicial emergency order indefinitely suspending jury trials is not automatically going to pass federal constitutional speedy trial muster, even though the order says: “As provided in the Clarification Order, deadlines imposed by the Speedy Trial Act, Va. Code § 19.2-243 [which removes from the Virginia Code’s speedy trial calculation trial delays caused by “a natural disaster, civil disorder, or act of God”], are tolled during the ongoing Period of Judicial Emergency (March 16, 2020, through June 7, 2020).” Criminal defenses lawyers have the option to file and argue speedy trial motions concerning the judicial non-resuming of their criminal and DUI jury trials, and delays of their non-jury cases (particularly for defendants detained pretrial), and to argue that each judicial emergency order is a changed circumstance that justifies holding a new bond hearing to pursue pretrial release of criminal defendants, rather than keeping them in jail any longer than necessary in the Covid-19 incubators known as jail. Home detention and GPS monitoring, as well as intensive pretrial release supervision, are options for depopulating the jails during the pandemic.

What opportunities does the Fairfax court docketing bottleneck provide for negotiating criminal and DUI case resolutions?

The Fairfax County and other commonwealth prosecutors’ offices in Virginia have finite resources to prosecute cases, and currently have prosecutors who are spending much less time each day in court while awaiting the resuming of trial dates, which presents a possible opportunity that a more favorable negotiated case outcome during the pandemic than after the Virginia courts resume for normal operations after the pandemic passes. When prosecutors dispose of cases during this resetting period, they have more time to devote to their remaining court cases. Here for instance is the Fairfax County commonwealth attorney’s office’s recently announced approach to negotiating criminal and DUI district court cases during the judicial emergency. This is a big change from usually having no Fairfax prosecutor available to negotiate a misdemeanor criminal or DWI case before the trial date. As always, I say that negotiations need to come from a position of strength, and to start by pursuing the possibility of an outright case dismissal.

What if you have a pending court date and live overseas or in a coronavirus hotspot, or if you or your witness(es) are sick?

During the period of the judicial emergency through June 7, 2020, and the resuming of trial proceedings, the courts can be expected to be more liberal than at other times to grant trial date continuances for people living overseas (with coronavirus-related airport limits and closures, and non-United States citizens possibly facing enhanced scrutiny by United States immigration officials)  or in coronavirus hotspots; possibly for those living hundreds of miles away who are not comfortable risking contracting coronavirus by staying in hotels or by flying by common carriers (airlines, trains and buses); and certainly for people who are sick. The Virginia Supreme Court’s most recent judicial emergency order provides that: “All courts and security personnel shall take reasonable measures to prohibit individuals from entering the courthouse if they have, within the previous 14 days: i. traveled internationally; ii. been directed to quarantine, isolate, or self-monitor; iii. been diagnosed with, or have had contact with anyone who has been diagnosed with, COVID-19; iv. experienced a fever, cough, or shortness of breath; or v. resided with or been in close contact with any person in the above-mentioned categories. The ideal way to seek court a court date rescheduling is with a lawyer who knows how best to do that. For those defendants seeking postponements on their own, they should do so as soon as possible, and with the understanding that their postponement requests may not always be granted.”

Will grand juries meet?

Grand juries are needed for prosecutors to have felony cases proceed to trial in Circuit Court. If you have been charged with a Virginia felony offense, do not assume that grand jury proceedings will not be resuming soon, and make sure you appear on the Fairfax or other county court term date or case setting date that is scheduled for those who get indicted for alleged felony offenses.

Find opportunities in the continuance of your Fairfax or other criminal or DUI court date

Time is a commodity, and that commodity often can be put to good use, including with the resetting of thousands of Virginia criminal and DUI trials during the pandemic. For instance, time delays in resuming Virginia criminal and DUI trials can make weary (and in no unlawful nor unethical sense) — and more introspective — prosecutors and civilian prosecution witnesses, in order to obtain favorable negotiations or dismissals that would have been less possible to achieve during non-pandemic times. This extra time between arrest or charging date and one’s trial or preliminary hearing date also provides more time to engage in self improvement efforts — even when much of that is only available online (although in-person pandemic-time community service opportunities include making meals for first responders and delivering food to elderely and handicapped people). As Hugh Romney / Wavy Gravy said to the hundreds of thousands of attendees at Woodstock, “There’s always a little bit of heaven in a disaster area.” Not being crass, I always advocate finding opportunities amidst hurdles for all criminal defendants and DUI cases, including during Covid-19.

This is the second of a two-part article. The first part is here.  

Fairfax criminal defense lawyer Jonathan L. Katz pursues your best defense in Northern Virginia courts and beyond, against felony, misdemeanor, and DUI prosecutions, and protective order hearings. Call 703-383-1100 for a free consultation with Jon Katz about your court-pending criminal or DWI case.