Masked justice must not compromise justice says Fairfax criminal lawyer

Masked courthouses must not mask justice

Masked people abound as Covid-19 continues without a care, moving from host to host, slowing here and surging there. As a Fairfax criminal lawyer, I know that coronavirus must not be permitted to water down justice.

For Due Process and the Sixth Amendment’s Confrontation Clause to maintain teeth — and to be able to sufficiently understand witnesses and court interpreters — if a criminal defendant will be prosecuted, his or her accuser should testify unmasked in the same courtroom as the judge, jury, and defendant — not remotely, and not while wearing a mask on the witness stand. (And the language of the Virginia governor’s mask-wearing order does not cover courthouses, and even if it did, separation of powers and Constitutional rights trumps any gubernatorial order for witnesses and jurors to wear masks.)

If a felony or a misdemeanor appeal is going to be tried before a jury, the jury needs to be in the courtroom, not appearing by Zoom. Voir dire / jury selection necessitates that potential jurors not be masked — at least during that phase of court proceedings — so that the defendant and his criminal defense lawyer may eyeball each venire member, to help determine whether their demeanor, facial expressions and words reveal them as likely to completely fulfill a juror’s oath, to do the opposite or in between.

Jurors are obligated to pay full time and attention in the courtroom and deliberation room, and not to be rearing to leave the jury room so as to minimize coronavirus risks at the courthouse

Jurors are paid little in Virginia, $30 daily to be precise. Jurors’ measly per diem will not get them to follow their oath to pay full time and attention. If they are concerned about getting infected by Covid-19 by being in the courthouse and courtroom — whether masked or not — and by being in deliberation rooms, they might not give courtroom proceedings the full time and attention required by their oaths and might not fully deliberate as required. This a true quandary. We cannot rid the world of coronavirus overnight, and already see it resurge in states that have reopened more quickly than others. Continually delaying trials not only threatens criminal defendants’ Sixth Amendment speedy trial rights, but also is particularly taxing for criminal defendants jailed pretrial. The longer trials are delayed, the more of a bottleneck we will face with trial dates once they finally take place, and the less flexible we might then see judges in deciding reasonable requests for longer trials to fully and fairly cover the essential evidence and arguments, and for rescheduling trials to resolve lawyer and defendant date conflicts.

Shrinking the criminal justice system will help offset the bottlenecked dockets that are around the corner

We will have less of a bottlenecked courthouse with trial dates if the criminal justice system is shrunk by reversing the over criminalization in the law books, reducing overcharging and over policing by cops, and having prosecutors who carefully vet and consider each police-charged case and turn to and expand the option for the criminal defendant and alleged victim to engage in the restorative justice process.

Be ready for a shock when entering the courthouses in Fairfax County, Virginia and beyond

The courthouses have become bizarre places in various ways during Covid-19, where masked entry is obligatory. The Fairfax County courthouse is among the extreme examples, for instance with mainly closed public service windows at the Fairfax General District Court and the courthouse’s Juvenile and Domestic Relations District Court. The rear door of the courthouse, which is fifty yards from my office , is locked for entry and only available for exit. Masking tape is used on courtroom and hallway benches to designate physical distancing. Masking tape arrows are being placed on courtroom floors to have one-way foot traffic. Judges in many court proceedings encourage remote appearances — except for ministerial appearances like scheduling when not requiring any advocacy — when I have always favored in-person appearances including during the coronavirus. Numerous General District Court dockets will have staggered starting times (for instance 9:00, 10:00, or 11:00 a.m.).

A courthouse upside from the coronavirus

An upside during Covid-19 and masked society is that the courts have been brought further into 21st century technology and practice. Simple, uncontested scheduling hearings are more often handled without a hearing (through the criminal defense and prosecution sides reaching agreed trial dates in consultation with court availability) or by remote hearings. Many court clerk offices that were not accepting court filings by email or fax are now doing so (and the trend needs to be to file court documents through user-friendly online portals). The Fairfax District Courts and numerous other courts have been making entire court files available for viewing and printing on courthouse computer terminals available to the public, which reduces time standing in line to see a file (at least when a computer terminal is free, which they have always been for me during the pandemic) and for a clerk to find a criminal case file, and eliminates the court window clerk from asking me what I want in the file when I want to review the entire case file.

Arrive earlier and masked at the Virginia courthouses

Arrive extra early and masked at the Virginia courthouses, where waiting times to enter can be increased by first having to answer Covid-19 related questions about possible exposure to the coronavirus and to people who have the virus, and to have a quick forehead body temperature check taken (which takes a split second and which involves feeling nothing). Thank goodness all the more that in the Fairfax courthouse and numerous other courthouses, lawyers bypass a full security check by displaying their bar card or county courthouse identification card.

Tips for increasing health and comfort while being masked in courthouses, and a sports mask option

Being masked for extended periods of time is very noticeable to the wearer. Humans are made to breathe freely and not to have a barrier covering our mouths and noses while respirating. I checked with a physician friend who of course is wearing a mask when daily with patients, who said that surgical masks can be worn three to four days and then disposed of, and to keep it in a ziplock bag when not in use. He also equally suggests the option of wearing a cotton cloth mask or bandana to be washed every two to three days. This medical doctor says that N95 masks are not necessary.

More important to me than considering ordering masks with designs — just as I wear neckties with designs — is for the masked situation to assist my health and comfort. In that regard, I have pre-ordered a sized Under Armour sports mask from the company’s website, which sold out in the first batch before I knew of them.

Covid-19 remains a tremendous threat, while its damage to criminal defendants can reverberate long after the virus passes

Yes, we need to recognize that Covid-19 is a monster and that masked approaches can make a real difference in reducing its spread. One of experts I rely upon most is Larry Brilliant — mainly using Twitter as his writing medium on coronavirus — who was among the epidemiologists who helped with the final chapter of eradicating the world of smallpox. Dr. Brilliant’s June 15 tweet, emphasizes that Covid-19 won’t merely go away in the spring, “the summer heat won’t disappear it,” “the first waves have not passed,” and “it keeps going until we stop it.”

At the same time, courthouses can be like huge ships that are hard to turn around, and I am deeply concerned not only about the ways in which criminal defendants and their rights (for instance to speedy trials, particularly for those jailed pretrial) suffer in the name of reacting to and resolving the pandemic, but also about how long it will take to shed the painful Covid-19-inspired court changes once the pandemic has passed (which may not pass for a very long time, especially before an effective and safe vaccine is developed and administered worldwide).

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