COVID-19 Court Closures Extended by CA Supreme Court Chief Justice – Civil Libertarians, Defense Lawyers Have Concerns

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By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief

SACRAMENTO – Late Monday, California Supreme Court Chief Justice Tani Cantil-Sakauye issued an order that further turned the Superior Court system in the state upside down, sideways and, in effect, off until at least mid-April.

Apparently, before the late disclosure by the state’s top judge, Sacramento County Superior Court was preparing to resume court operations – of a sort – this Wednesday, April 1, the day after Cantil-Sakaye’s previous order to suspend the courts was meant to end.

But now, as of late Monday, that’s not the case. The result? “Utter confusion” according to one longtime barrister.

“As a result of the unsettled nature of the current public health risk from the COVID-19 virus, I have decided to continue the temporary closure until April 16, 2020. At that time, I will reassess the need to restrict access to the court and minimize staff levels,” the chief justice wrote.

She added that “I’ve extended the Temporary Court Closure until April 16, 2020, I have also issued successive orders adding to that list of matters. While we have increased some court services incrementally, we remain focused on increasing services for only ‘essential’ matters given the ongoing ‘stay-at-home’ orders issued by the County Public Health Department and the Governor’s Office. Such orders apply for the health and safety of all members of the public, including our court personnel.”

That was a surprise to many Sacramento lawyers, who just Monday were put through “Zoom” training to prepare to conduct arraignments and preliminary trials this Wednesday, even though with doors to the courthouse locked.

“We were told to expect necessary arraignments and prelims to be held with the defendant present, and a judge in the jail court, but that the District Attorney and defense lawyer, as well as witnesses and arresting officers, would appear via Zoom. The public would not be allowed to attend,” said one defense lawyer who didn’t want to be named.

“No one knows what’s going on. This is irresponsible. The new arrests need to be arraigned and heard on bail. It is amazing that someone arrested on St. Patrick’s Day, for instance, could be sitting in a jail uncharged with no way to lower his or her bail. If grocery clerks are working then the court can do the essential aspects of its job,” the attorney complained.

No one yet can guess what will happen with jury trials, which have been suspended until at least the end of May by the chief justice. Some lawyers are speculating jury trials won’t take place until the late Summer at the earliest, considering what they say will be “reluctant” jury pools who may not want to jam into courtrooms with the ever present threat of COVID-19.

The chief justice already stated that “courts cannot comply with the stringent health directives and restrictions established by the State and continue to operate as they have in the past. Court proceedings require gatherings of court staff, litigants, attorneys, witnesses, and juries, well in excess of the
numbers allowed for gathering under current executive and health orders.”

But defense lawyers and civil libertarians have concerns.

“There is a very slippery slope in allowing the state to delay justice. But we must balance the delay of justice with the saving of life. It is rare that I side with the State when it comes to any intrusion or denial of civil liberties, but I believe the motive to save lives is genuine in this case. Now that it’s happening we cannot become complacent and let them go wild. The change must be proportional to the situation and that situation is still developing. We don’t know where that line is yet,” said Danny Garza, a National Lawyers Guild/Sacramento board member.

Garza added: “The courts attempting to use internet conferencing software to hold trials is going to be a challenge, and those trials conducted in this manner open the door for numerous appeals. There will likely be issues with controlling the integrity of the court. “How will the judge know if there is someone else in the room of a witness feeding them answers? What if a juror is actually watching that tiger documentary instead of watching the trial? How are witnesses supposed to authenticate evidence? What if a bad internet connection prevents the court reporter from hearing and recording testimony? How will the jury watch the trial and who chooses what they see at any one time without inviting bias?”

Civil rights lawyer Keith J. Staten was direct.

“The order by the Chief Justice stands to violate rights Guaranteed by the sixth amendment of the constitution in regard to a speedy preliminary hearing for felony offenses and trial. It also expands the time to be brought to court for arraignment from two to seven days. The state of our pandemic and the need to take action to save lives seems to be a  justification to delay justice.

“Here, it appears that the power to disrupt the rights of defendants was not addressed by the legislative branch which could have changed laws.  Challenges will be made, but perhaps not in time to be made moot by occurrences we have yet to see from the pandemic.  It may give rise to better settlement offers with better results. It may and will open up release by lowered bail or no bail to everyone except presumptive no bail cases,” Staten said.

But in any case, Staten reminded other defense lawyers that “Certainly each counsel must now look to use the situation to get the best and proper outcome for their clients. Even if the pandemic may isolate us, it does not release us of our duty to serve our clients and justice.”

“Justice delayed is justice denied. What’s happening with the delays is understandable, but this can be devastating. What if we get to a trial that 45 people don’t want to do. This system might break down. This pandemic is exposing so many cracks in our system,” confided one attorney.

Another attorney noted that although “we are not officially under martial law; we are under it. And martial law lasts until we get something else. We are in uncharted waters in this country. The national guard is mobilizing. It’s scary.”

The specifics of  the chief justice order signed Monday states:

“Pursuant to my constitutional and other legal authority, including the authority granted by Governor Newsom and the Judicial Council, and by the California Constitution, article VI, section 6, and Government Code section 68115, and after careful consideration, balancing the constitutional due process rights of parties in both criminal and civil proceedings with the health and safety of these parties, the public, court staff, judicial officers, attorneys, witnesses, jurors, and others present at these proceedings, among other considerations, I find good cause to: “A. Authorize superior courts to issue implementation orders that:

1. Extend the time period provided in section 859b of the Penal Code for the holding of a preliminary examination and the defendant’s right to release from 10 court days to not more than 30 court days;

2.  Extend the time period provided in section 825 of the Penal Code within which a defendant charged with a felony offense must be taken before a magistrate from 48 hours to not more than seven days;

3. Extend the time period provided in section 1382 of the Penal Code for the holding of a criminal trial by no more than 60 days from the last date on which the statutory deadline otherwise would have expired;

 4.  Extend the time periods provided in sections 583.310 and 583.320 of the Code of Civil Procedure to bring an action to trial by no more than 60 days from the last date on which the statutory deadline otherwise would have expired;

5. These extensions are in addition to any relief provided pursuant to a court-specific emergency order issued under a subdivision of Government Code section 68115 related to another extension or form of relief.

 B. Order that the 60-day continuance of jury trials, which I authorized in my order of March 23, 2020, is to be calculated from the date for which the trial was set or extended as provided in A.3 or A.4 above, whichever is longer;

C. To support courts in making use of available technology, when possible, to conduct judicial proceedings and court operations remotely, suspend any rule in the California Rules of Court to the extent such rule would prevent a court from using technology to conduct judicial proceedings and court operations remotely, in order to protect the health and safety of the public, court personnel, judicial officers, litigants, and witnesses. This is consistent with the Governor’s order, which also provides for the suspension of related statutes that impose limitations on the subject of these emergency orders.”

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