‘More challenging than 9/11’: Pandemic tests American criminal justice

The US criminal justice system is being tested as prosecutors, judges and lawyers try to find the balance between the constitutional rights of defendants, the rights of victims and the unprecedented uncertainty that comes with a virus that public health officials are still trying to understand and contain.

The strain came into focus this week. The judge overseeing the trial of a man charged in a New York sex trafficking ring postponed the proceeding midway through testimony after defense attorneys raised concerns that the jury will rush to judgment to avoid traveling to the courthouse as the coronavirus pandemic was multiplying in the city.

“The jury will no doubt be scared and/or angry about having to commute to the trial, hear testimony in a confined box, and deliberate in an even more confined space,” Alan Nelson, an attorney for the alleged sex trafficker, wrote to the court on Saturday arguing that the trial should be adjourned. “That anger and fear is likely to translate to an unfair trial for the defendant.”

Prosecutors opposed the request maintaining that a delay “will deprive the public of a speedy resolution” and “create substantial uncertainty” for the victim. After a hearing on Monday, the judge postponed the trial for at least two weeks just as city and state officials closed schools and movie theaters, limited bars and restaurants to only takeout and delivery, and pleaded with residents to remain inside their homes.

With the virus’ impact on the courts still an unknown, Justice Department officials have begun discussing what to do about ongoing cases and whether delays in bringing charges or trials could trigger constitutional issues, according to a department official.

Among the concerns, is the expiration of statute of limitations in certain investigations — for many federal crimes, prosecutors have five years to bring charges against a criminal defendant — and the Constitutional right for defendants to have a speedy trial. It’s not clear how many cases could be affected by those concerns, the official said.

If federal courts are shut down for weeks or months, with no grand juries or jury trials taking place, the Justice Department may have to seek congressional legislation to extend the time prosecutors and judges have to deal with cases affected, the official said. Officials are grappling with that uncertainty now.

Defense lawyers have suggested tough decisions will need to be made, whether that’s cutting some investigations short and making plea bargains.

Courts were temporarily closed in New York after the 9/11 terrorist attacks but some lawyers say the unknowns about the virus and how long it will last brings unprecedented challenges.

‘Dangerously obtuse’

The tension is playing out in New York, the state with the highest concentration of cases in the country, where some defense lawyers are calling on federal prosecutors and judges to heed public warnings and stop ongoing trials and agree to bail for non-violent individuals.

The New York sex trafficking trial began last Monday. By the end of the week, six witnesses, including two victims, had testified as city and state leaders debated curtailing activity in the city as they learned the number of coronavirus cases was growing.

By Saturday, with public health officials sounding alarms about the spread of the virus, the defendant’s lawyers asked the judge to postpone the trial over concerns that the jurors might have about the virus and the possibility they would rush to find a verdict.

Prosecutors opposed it, saying there is only half a day of testimony left in their case, and a public need to hold the man accountable.

“Imposing an unspecified delay of trial will deprive the public of a speedy resolution of this matter, especially given how close the parties believe they are to resting, and create substantial uncertainty for the victim about when, if ever, her rights will be vindicated,” prosecutors said in a letter on Saturday.

The National Association of Criminal Defense Lawyers joined in support of the defense lawyers and called the government’s position “dangerously obtuse.”

“Compelling jurors to spend a fair portion of the day in a confined space in which they share a bathroom, a sink, a table, and chairs and then another few hours in close proximity in the jury box, presents an unnecessary and inordinate risk under the current circumstances.”

An issue the defense raised in that case was news a security officer for the Manhattan US attorney’s office and a Joint Terrorism Task Force agent tested positive last week. Prosecutors said no one on the trial team was believed to be exposed. Still the risk exists. According to the Federal Defenders of New York, a prosecutor with the US attorney’s office in Manhattan is also being tested for coronavirus.

Jurors worries about being in tight quarters have already begun to impact trials. A New York federal judge on Monday morning took the unusual step of allowing a juror in a criminal trial to deliberate by video conference in a US sanctions violations case, after two jurors said they felt ill and asked to stay home.

Over the objection of prosecutors, who voiced concerns that the juror participating by videoconference might research aspects of the case while staying home, US District Court Judge Alison Nathan allowed the arrangement for one juror. “I will say that we are under extraordinary circumstances,” she said. She dismissed the other juror.

The jury found the defendant, an Iranian businessman, guilty Monday afternoon of five of the six counts with which he was charged.

Earlier this month, the same trial had to switch courtrooms after a different juror told the judge that they had potential exposure to someone who had tested positive for coronavirus.

The Federal Defenders of New York is calling for the Justice Department to dial back its actions.

“My big concern is with the US attorney’s offices that are again in their own words engaging in business as usual. In terms of new arrests, they tell us they’re not changing their policy, they’re not scaling back and that’s really problematic if you’re going to inject even more people into already overcrowded jails,” said David Patton, executive director of the Federal Defenders of New York.

A spokesman for the US attorney’s office in Manhattan declined to comment.

Patton said the federal defenders have asked for bail for about 15 prisoners who are older or medically vulnerable.

Patton said prosecutors arrested someone on a low-level drug offense on Saturday and asked for him to be detained. The judge granted bail, but the defendant has been detained until he can meet the conditions.

“That strikes me as totally insane. You’re going to put somebody in for two to three days until he meets bail conditions and bring him back out into the community,” Patton said.

He said six other individuals were arrested Monday before noon, which is moderately busy for federal courts. In New York state courts he said there has been a decrease in the number of new arrests.

Human Rights Watch has also called for the release from prisons and immigration detention centers older people, those at medical risk and individuals who are detained because they can’t afford bail.

“Really unprecedented and even more challenging” than 9/11

Courts and a defendant’s right to a speedy trial have been tested before, during 9/11 and natural disasters like Hurricane Katrina and Superstorm Sandy.

After the September 11 hijackings, some federal courthouses shut down temporarily alongside other institutions across the country as intelligence leaders were concerned about a possible second attack, according to Jamie Gorelick, a former deputy attorney general who served on the 9/11 Commission.

In downtown Manhattan, the stately federal courthouses in Foley Square fell in the so-called “frozen zone” around ground zero, making them inaccessible for days. A newly constructed courthouse in the Eastern District of New York — then the largest structure on Long Island — too remained closed shortly after the attack.

Even as courtrooms reopened, criminal and civil proceedings were delayed for weeks as prosecutors and FBI agents were diverted to a Justice Department command center to investigate the terror attack.

“It was a round-the-clock thing just staffing it and working and doing whatever law enforcement support we could,” said Jodi Avergun, a former senior DOJ official who headed the Long Island outpost of the Eastern District at the time of the attacks. “I had a number of fraud trials and investigations that sort of just sat for weeks because the FBI was doing counterterrorism.”

The physical destruction of paper-copy case files caused in the World Trade Center towers collapse — where local Securities and Exchange Commission and Secret Service offices were located — and difficulties transporting prisoners to court appearances and meetings with defense attorneys added to the hurdles that officials in the Manhattan and Brooklyn US attorney’s offices faced as they tried to further prosecutions under required timetables.

Some cases were dismissed early as a result, while prosecutors were forced to reach premature settlements in others, Avergun said.

In 2001 and this month, federal judges have turned to public interest exceptions in federal statutes to ensure that courthouse disruptions would not count against deadlines guaranteed by a defendants’ right to quick justice.

In the aftermath of 9/11, the chief judge in the Southern District of New York issued a blanket order discounting the time lost in cases from the initial closure against the “speedy trial” clock. Last week, the current chief judge, Colleen McMahon, made a similar judgment, excluding a time period through the end of next month.

“I think what happens is that unfortunately defendants are delayed their time in court and the system bends to allow it in the way that they wouldn’t if the excuse weren’t really good,” said Harry Sandick, who served as an assistant US attorney in Manhattan during 9/11. “I think the system recognizes that delays are unacceptable but they’re also inevitable and they’re particularly inevitable when you have a national crisis like this or the 9/11 attack.”

Patton of the Federal Defenders said he appreciates the courts’ flexibility, but says even compared with 9/11 or hurricanes and storms “some of the things that we’re dealing with right now really unprecedented and even more challenging.”

“In the aftermath of storms or 9/11 you didn’t have the pending crisis we’re looking at in our jails right now,” said Patton. “That’s our number one concern right now; our biggest concern is people dying in there right now.”