Editor’s note: In-person jury trials are set to resume in Scott County this summer. Below is the second of two articles breaking down the decision, concerns and how to handle the increased case load moving forward.

 

With the announcement that in-person jury trials will resume in Scott County, many are wondering how the court system will keep up with an already massive backlog of cases, in part due to the COVID-19 pandemic.

A popular method of tackling this case load is felony mediation, a form of alternative dispute resolute wherein an ex-judge will meet with defendants, prosecutors and clients in order to reach an amicable solution to the case.

It’s a method that Scott County Circuit Court Judge Jeremy Mattox said he intends to use.

“One of the things that we’re going to do to try to alleviate some of this backlog is allow any cases short of a capital murder case to go to felony mediation,” he said. “That’s where they’ll get together outside of my presence with a retired judge.”

Earlier this year, Mattox said that jury trials in Scott County were essentially delayed an entire year due to the pandemic, which did not allow for in-person jury trials for almost the entirety of 2020. This was only lifted by the Kentucky Supreme Court as of May 18. Mattox himself has not had a jury trial since 2019, but has his first one scheduled for July.

This backlog was made abundantly clear in April when Chief Justice John D. Minton Jr. said the state court system made history.

“We had in the month of April the largest number of new indictments in criminal cases, felony cases…we had more in April the we’ve ever had in the history of this state,” he said. “That’s because of grand juries. Some places have been holding remote grand juries and other places have tried them and it didn’t work out, but we’ve made it available. But for the most part, grand juries had not been meeting. There’s a lot of accumulated cases that have been brought before grand juries and in April we saw the results of that. I’m expecting a large influx of criminal cases in the coming months, and felony mediations is one of the tools.”

Commonwealth Attorney Sharon Muse said she attempted on multiple occasions to reach out to defendants to resolve cases during the COVID-19 pandemic in order to preemptively tackle the issue. However, she received no responses. 

Because of this, Muse said the cases have continued to add to the list of backlogged cases, even though, unlike other counties in the state, Scott County stayed up to date with grand juries.

“We stayed current with grand jury,” she said. “We didn’t miss. We got all of our discovery together, and we did everything we could conceivably do other than force the case to trial, which we couldn’t do because of the pandemic. It’s not fair to the victims, defendants, the taxpayers or the community.”

This backlog was concurred by Damon Preston, public advocate with the Department of Public Advocacy (DPA). Preston added that he is an advocate of felony mediation as a method to ease the overloaded court system.

“What I like about mediation is that it’s voluntary on both sides — the Commonwealth and the accused are not required to agree to anything,” he said. “Both sides can somewhat be confronted with the weaknesses of their case and work out a suitable resolution. We have high hopes that mediation will help take care of some of the backlog.”

The request for felony mediation was made to both judges, Mattox and Circuit Court Judge Brian Privett, six weeks ago, Muse said.

“It’s been a very useful tool around the state,” she said. “There’s been a lot of success. Different reports I’m seeing from different Commonwealth attorneys say they’re having around an 80 percent success rate. There’s literally not even a question that it would be a good thing to do.”

But Muse said she does have some concerns about the defendants wanting to participate in the mediation process.

“We can’t force anyone to come to the table to mediate with us and, as of yet, we haven’t had one,” she said. “But our office stands ready to mediate, and we’re hoping that the defense will join us there.”

Mediation can also be a tool to rebuild relationships in less violent cases, Preston said.

“There’s a role for restorative justice — a process by which victims are involved to restore relationships between the accused and the victim,” he said. “It works best in property crimes and minor violent crimes, but it’s a case-by-case basis.”

More importantly for Muse, she said the use of mediation would help those involved move on.

“I think our community deserves better, and I hope that we will be able to use felony mediation,” she said. “I hope that we will be able to move cases forward to give the defendants and victims some, well, I don’t believe in closure, but at least there’s some finality to it that’s not constantly hanging over their head.”

Both Muse and Preston said their respective offices are in for a busy summer.

“I literally planned my wedding around our trial schedule,” Muse said. “I told everybody in the office no summer vacations because we are, as much as the judges and the defense attorneys will let us, we’re going to try these cases and clean this up.”

Typically, summer is a slower time of year for trails, but Preston said the administrative orders and increased number of indictments changed that.

“They (the coming months) don’t look like summer,” he said. “The pace of the court system, in a typical year, would slow down.  That is not going to be the case this year. It’s going to be very busy. People are still being arrested and charged, and then we have all the backlog on top of that. It’s going to be very difficult to get through.”

Despite challenges court systems have faced in the wake of the COVID-19 pandemic, many still feel there is something to be learned from it all, particularly in regards to the court’s use of technology — something that could also save all involved a lot of time, energy and money.

“We need to figure out how to factor in the use of technology in there, just be better at customer service,” Minton said. “That’s going to be a challenge, how to incorporate what we’ve experienced and the good things that have come about as a result of our being forced to use technology to do court. There’s a savings of time and money for clients and for the system.”

At a virtual Kentucky Bar Association convention in May, Minton said the want from law practitioners was made abundantly clear.

“We had about 1,200 lawyers participating in this, so I decided to conduct an unscientific poll asking ‘how many of you would support continued use of technology going forward?’ and 90 percent of the respondents urged us to continue using technology when it comes to civil motions,” he said. “The pressure is not how to return to the former ways of doing things completely. Now that we’ve spent a year learning how to use technology, we can’t just set that aside and go back to business as usual. We need to have benefited from this year’s experience.”

The continued use of technology is something Mattox said he intends to keep in play for more “housekeeping” type items, such as scheduling. 

“Basically just dealing with attorneys and going over people’s calendars,” he said. “If you’ve got an attorney out of Louisville and another attorney out of London and they have a civil matter they want to set for a trial, instead of having them drive up there, they can do it over video and set a trial date, if the attorneys are in an agreement that they both want a trial.”

Minton agreed and said it would come in handy for those outside of circuits to avoid transportation costs.

“There’s a savings of time and money for clients and for the court system because we’re not transporting prisoners across the Commonwealth as we were before because we’re not using electronic appearances,” he said. “How do we use those tools to keep a lawyer from traveling from one courthouse to the next or from his or her office to another county clean across the state? Those can be done electronically, and should be.”

The hope is for court system to return to pre-pandemic normalcy. But some others have higher hopes.

“I would like the court system to be better than it was pre-COVID,” Muse said. “We still had issues with a lot of delays and, in my mind, not actually having enough trials. So, yes, I would like the court system to actually be better than before.”

 

Kyle Woosley can be reached at kwoosley@news-graphic.com.

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