Both the U.S. Constitution and the Kentucky Constitution guarantee citizens the right to a trial. However, with the recent restrictions and mandates due to the COVID-19 pandemic, many people will have to wait a while longer for this constitutional right.
The pandemic resulted in Scott County Circuit Court jury trials being backed up by at least one year, said Chief Circuit Judge Jeremy Mattox.
“It takes a while for certain cases to come to trial,” he said. “To do a serious criminal or civil matter, it takes at least a year to get everything prepped for trial. We’ve essentially lost this entire year.”
The Kentucky Supreme Court amended two previous administrative orders to “limit in-person proceedings and restrict access to judicial facilities” that went into effect Nov. 30, which required all jury trials to be postponed until Feb. 1, 2021.
But Mattox said he feels that date is still too soon to be realistic.
“I doubt very serious we will be able to conduct a jury trial in February in circuit court,” he said.
While Scott County has not had a Circuit Court jury trial since March, the state temporarily allowed the courts hold jury trials as of Aug. 1.
Damon Preston, public advocate with the Department of Public Advocacy (DPA), said he feels the decision to reopen courts in Kentucky back in August was too soon.
“I felt like it was premature,” he said. “I felt like there needed to be more established processes. It allowed individual courts to set their own rules. If you’re going to expect everybody to come to a closed room for eight hours a day, sweating and in a high-stress environment, that needs to be safe, and I wasn’t convinced enough work had gone into that.”
Still, Mattox said jury trials during this time remained nearly impossible.
“A circuit court jury trial is almost always multiple days,” Mattox said. “What happens if you’re on day three of a five-day trial, one of your jurors tests positive and your other 11 jurors have to quarantine? Then you have a mistrial and there goes three days of work. If you lose just one juror, you have a mistrial.”
Preston said jury trials are particularly tricky because there’s no effective way to conduct them during this pandemic.
“Jury trials right now in the midst of a pandemic are the most difficult problem in the criminal justice system because, unlike a regular court appearance, you can’t affectively hold a jury trial over Zoom or a virtual platform,” he said. “It’s really brought to light the need of figuring out how we can do jury trials in a safe way, but unfortunately, it’s just not possible with the number of people involved in a jury trial.”
Mattox added that Scott County simply doesn’t have the facilities to accommodate jury selection with the social distancing mandates currently in place.
“To do a circuit court jury trial, you have to start with 150 to 200 potential jurors,” he said. “There’s literally nowhere to put that many people safely to adhere to current guidelines. We’re very limited on facilities here. As far as once a trial began, could could take the 12 jurors and space them out in the courtroom, but the problem is getting them picked.”
Commonwealth Attorney Sharon Muse said she agrees that it’s a logistical challenge holding jury trials, but that it does not negate the need for the criminal justice system to keep moving.
“I think the burden is on those of us in the system to find a way to make it work regardless of what’s going on because what we cannot do is allow people that are a threat to public safety, people that are violent, to fail to receive the justice that they deserve,” Muse said. “I certainly can’t control the outcome of a trial, but I can make sure I take them to trial and give the public the opportunity to determine what they will and will not accept in their communities, and that’s what I want.”
Although jury trials are not happening, Muse said she did have a bench trial. She said bench trials are different because there’s no jury, however she thinks if jury trials were to move forward with some of the same rules as a bench trials it could cause issues.
“You’re not just trying to focus on your trial, you’re also trying to focus on these new rules about social distancing and it just adds a layer,” she said. “None of us know how a jury is going to feel in a room with masks on. We don’t know if that’s going to frighten them or concern them for their own health and they’ll be distracted by their own legitimate concerns and not be able to give the facts of the case full attention. It’s such an unknown for all of us.”
Even after things are cleared to begin jury trials again, Mattox said it’s still a matter of prioritizing, which is going to take some time.
“We have to prioritize starting with criminal defendants who are currently incarcerated and have not yet been tried,” he said. “Those people will get the first available trial dates, followed by criminal cases out of custody but pending, then civil trials. I don’t anticipate we’ll have a civil trial before the fourth quarter of next year, at least in circuit court.”
But despite prioritization, Preston said the case load is going to be overwhelming to defense attorneys, but especially public defenders.
“Public defenders have historically had overbearing case loads,” Preston said. “Now, they’re going to be doubled and you’re giving them the 2020 case load while simultaneously giving them the 2021 case load.”
Preston said said all systems will have to work together to find solutions in order to prevent the court system from getting too bogged down.
“There has to be efficiencies in place,” he said. “I would say that means prosecutors and courts take a hard look at which cases are important and which cases can be negotiated in a way that offers a fair solution of the case. We don’t expect every case can be dismissed, but we believe there are many can be. If the defense and prosecution go to the mat on every case or the prosecutor wants significant jail time and to send people to prison in every case, it’s going to be very hard to get through the work load like that.”
Muse said she thinks it’s going to take a cooperation between both sides in order to keep the system recent but that safety does not take a back seat to the pandemic.
“The need for public safety is not diminished by a pandemic,” she said. “If there’s a violent defender, then he doesn’t get a break just because we’re in a pandemic. Drug traffickers, child predators, rapists, they’re not getting breaks because we’re in a pandemic.”
But Mattox said there have been some positive practices that may be carried over into a post-COVID-19.
“I think it would save a lot of county government’s money if we were able to continue to do Zoom with inmates from other counties, if they’re just coming up for a status on the docket or entering an initial not guilty arraignment,” he said. “There’s always a risk factor if you’re transporting someone, if they’re dangerous or you’re transferring them several hours across the state. It’s much more risk than having someone sit with them in front of a computer monitor and a microphone.”
The DPA received a $102,270 grant from the U.S. Department of Justice’s Coronavirus Emergency Supplemental Funding Program this month that will analyze just that. That grant was administered by the Kentucky Justice and Public Safety Cabinet.
“With this funding, the Department of Public Advocacy will be able to gather more accurate data about the challenges of virtual courts, identify the best practices to address those challenges and begin to implement solutions through a pilot project in Hardin County,” Preston said.
According to the press release, the pilot project will include solutions to the identified challenges through data collection and “greater access to attorneys and increased access to the courts, all in am anger that follows guidelines from the Center for Disease Control and Prevention.”
Mattox said the Scott County Circuit Court will be complying with the Kentucky Supreme Court, meaning jury trials will remain postponed until Feb. 1.
Kyle Woosley can be reached at firstname.lastname@example.org.