Full-Court Press: What COVID-era jury trial backlogs mean for the local criminal justice system

COVID-19 disrupted a lot of things. Businesses shut their doors – some temporarily, some forever. Concerts and other live events were cancelled. Wedding plans were turned upside down. And the wheels of justice ground to a halt.

Across the country, court systems are dealing with jury trial backlogs, thanks to the fact that countless trials were delayed or put on hold due to the virus and its current delta variant. Grand Traverse County is just one of many jurisdictions that will spend months – if not years – digging itself out of that backlog.

“The backlog, currently, is bigger in (the 86th) District Court than in (the 13th) Circuit Court,” said Kyle Attwood, chief assistant prosecuting attorney for Grand Traverse County. “That’s due to the Circuit Court still conducting trials, when they could, throughout the period of the pandemic. I think the (District Court) backlog at this point is probably into the hundreds; 150-200 cases, the last time I checked. So that will take longer to work our way through.”

Attwood

The good news, based on Attwood’s insight, is that the most severe cases in the region should be the least impacted by trial backlogs. Circuit courts, in Michigan, are courts of “general jurisdiction,” which means they have broader powers than district courts. A circuit court handles felony cases, as well as civil cases where $25,000 or more is at stake; a district court hears misdemeanor criminal matters, landlord-versus-tenant cases, or civil cases where the amount of money or property in controversy is between $5,000 and $25,000.

The bad news is that any kind of case backlog can still pose serious challenges for everyone involved in a trial case – including attorneys for both the prosecution and the defense, defendants, witnesses, members of the jury, and victims of crimes.

The ripple effects of the pandemic and the resulting jury trial backlogs are numerous. One example: An Associated Press story from last fall noted that non-response rates for jury duty summonses had spiked significantly during the pandemic, sparking a nationwide debate about how to ethically bring juries back into the courtroom without risking their health.

So far, Attwood says local courts have tried to keep the jury safe by spreading them throughout the gallery and using “the entire courtroom as the jury box.” But that approach creates its own challenges. Attorneys used to addressing the judge, the witness, and the jury – all more or less at the same time – have to change their tactics in the courtroom.

“Your head kind of has to be on a swivel, where before we could basically face one direction to make eye contact with the jury,” Attwood explained. “Now, you have to face 90 degrees or even 180 degrees worth of courtroom to face all the jurors. So, logistically, it’s a little tricky to make that connection with the jury when they’re all spread out throughout the courtroom.”

Presenting evidence is now its own logistical challenge, too. With jurors spread out around the gallery, sightlines and distances aren’t what they used to be – something that Attwood says changes the calculus of planning how to share evidence in a trial setting.

“They have a large-screen TV in the courtroom, and we would often use the television to present documents or other evidence to the jury digitally,” Attwood said. “And now, with them being all spread out, they can’t all see the TV like they would before, so that possibility doesn’t exist. We have to either bring in a TV that we can swing around, or print out documents for the jury that they can refer to as we present evidence.”

There are other pitfalls as well. In terms of testimony, Attwood says there’s some concern about witnesses being able to recall all the details of a case as more time passes. In terms of evidence, he notes that a case backlog also means a pile-up of evidence, which is causing concerns about storage limitations for the county. In terms of public safety, Attwood tells the TCBN that there has been “an uptick in new offenses committed (by defendants) while on bond,” as those individuals await their trials. And nationwide, much has been made of the lack of closure, and how cases stretching on for years can cause more pain and suffering for victims or their families as they wait for justice.

Stig-Nielsen

For his part, Frederik Stig-Nielsen – a Frankfort-based criminal defense attorney – is looking forward to the return of jury trials. That’s in part because he and his wife, Betsy Mas, started their own criminal defense law firm – Mas/Stig-Nielsen – at the beginning of 2021. So far, the husband-and-wife team have not taken on any jury trials as a new firm. That fact should change soon, with Mas/Stig-Nielsen set to represent multiple clients at trial this fall.

Beyond the excitement of getting back to the courtroom, Stig-Nielsen is most relieved by the fact that a return to trials will mean that clients who have sat in limbo for months or years will finally get their day in court.

“For defendants who aren’t able to post their bail, having been locked up for a long time has been pressuring some people to take pleas to get their cases resolved,” he explained. “When people are really being pressed inside the jail, and are really mentally worn down and emotionally worn down, that’s when (this backlog situation) really impacts them. Technically speaking, everyone’s constitutional right to a speedy trial was probably impinged by COVID-19.”

While the delay in trials has been a hardship for some defendants, Stig-Nielsen also notes that “rushing to trial” is not always in the best interest of clients being charged with criminal offenses. For clients who are able to be out on bond, he notes, this backlog delay has often actually been a positive thing, allowing those individuals to have more time with their families – and giving their lawyers more time to build as strong a defense strategy as possible.

“If the client can live with (the delay), there are reasons to take your time,” Stig-Nielsen continued. “Whether that means getting adjournments, or postponing things for various reasons, or getting an investigator, or hunting down witnesses, or filing pre-trial motions. In those cases, those speedy trial rights aren’t impacted in such a negative way.”

Despite the local jury trial backlog and the delays it will cause in court proceedings for months or years to come, Stig-Nielsen thinks the pandemic has ultimately forced the legal world to evolve in some positive ways – changes he hopes (and expects) will linger even if a day comes when COVID-19 is no longer a worry.

Virtual courtroom hearings, for one – while not logistically possible for jury trials – have “saved a lot of people a lot of money, and allowed people to continue to take care of their families while still maintaining their obligations with the court.” It’s not uncommon for lawyers and their clients to spend huge amounts of time traveling to and from hearings that often last a matter of minutes. Taking those hearings virtual has been a game-changer.

“In 2019, I drove probably 30,000 miles, and I had been averaging right around that for three or four years,” Stig-Nielsen said. “I couldn’t tell you exactly what I drove in the last year and a half, but it’s nowhere near that.”

He says there are other benefits to virtual hearings, especially for routine administrative types of tasks.

“It doesn’t make any sense for attorneys and clients to drive an hour each way to attend a five-minute scheduling conference,” he said. “It doesn’t make any sense, when the hearing is going to be adjourned and there’s just a few things that need to be addressed on the record, for people to spend all that time and take several hours off of work. It’s bad for the environment and it’s just a waste of time.”

Ultimately, Stig-Nielsen is hoping the courts can strike a nice balance between in-person proceedings (for jury trials and more substantive hearings) and virtual ones (for more straightforward administrative matters). There are drawbacks, he says, to virtual court, but those cons could largely be avoided with the right mix of in-person and virtual.

“Sometimes, (virtual court) takes away the humanity of the situation,” Stig-Nielsen concluded. “The prosecutors aren’t seeing these defendants in person. They’re not interacting with them even in the limited way that they would if they were in a courtroom. It makes it less personal than it was before, and maybe that causes (judges or prosecutors) to be less forgiving and less compassionate when they’re looking at these individuals who may have just made a mistake. So we’ll see how this all plays out several years from now, in terms of which virtual elements stick around.”

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