Most courts around the country have put criminal trials on hold since late March. That’s a long time to spend in jail waiting for your day in court, especially when there’s no clear notion on when that day might come.
New York City is slowly rolling out a program to “reopen” court, but as of now it’s fitful at best — only 10 cases a day in most court parts — as compared to as many as 150 before COVID-19.
Pilot programs are being considered on when and how to convene the first full-scale, post-COVID criminal trial with 12 jurors and several alternates. But as one judge told me last week, “The jurors sure won’t be sitting in the jury box cheek-to-cheek.” No, they’ll be scattered around the court room, separated by at least six feet, wearing masks and seated behind prosecution and defense. Not a great way to gauge their reactions.
The witnesses will be that much further from them, in the well next to the judge. Acoustics are already poor in the cavernous courtrooms, but picture a spread-out jury trying to hear people behind plexiglass barriers, speaking behind masks. No lip reading possible. Seems like a situation ripe for reversable error.
I conducted my first post-COVID suppression hearing last week. It was pretty clear-cut. My client made a full confession but hadn’t been read his Miranda rights until after he was questioned. His rights were then read on camera at which time the confession was repeated.
The detective was the key and only witness. He walked into court wearing a Darth Vader-like clear face mask pulled over his face. It made him look more like a welder than a cop.
The court reporter sat nestled in her plexiglass booth and the judge behind enough layers of plexi to ward off a swarm of bees. I was separated from my client by at least six feet. Much of the proceeding was interrupted by interjections of, “I didn’t catch that word.” “Can the witness speak louder?” “Was that “detection” or “inspection?””
Thank God there was no interpreter. In another proceeding I handled recently, the interpreter had to stand six feet from the client who couldn’t hear a word she said. It worked as well as the Cone of Silence in “Get Smart.” Ultimately, they both shouted into their cellphones to handle the interpreting.
What’s good about post-COVID court? Well, it felt great to get back to work, back on the horse, back inside a courthouse cross-examining witnesses and seeing a case go forward.
The judge ruled no differently than he would have in ordinary times. He denied suppression — a legal error in my mind, but one I won’t be able to contest until the case goes to trial and my client is likely convicted. (For some crazy reason I thought the post-COVID awakening to #BlackLivesMatter might nudge judges to view police more skeptically. But that hasn’t happened.)
Post-COVID court adds features to trial work both sides will have to contend with. Wearing masks, for example, has benefits and disadvantages. I like a jury to see my client full face. It humanizes him. God knows they’ll be seeing his mug shot introduced into evidence. Nice to have that countered with the face of a real person sitting in front of them.
But having a detective wear a silly-looking face covering isn’t great for the prosecution. It cuts back on his ability to be charming, convincing, and all-knowing — something always helpful to defense.
I like sitting next to my client and being able to whisper a word into his ear. That’s a big loss if we can’t get more than six feet apart. But the good side is having him that far away curtails his ability to interrupt my focus, take notes, and solidify my cross. Every front has a back.
Whatever the obstacles and changes, trials have to get restarted. Until and unless judges are going to seriously reconsider setting lower bail or approve ankle bracelets over jail, it’s not fair to leave thousands of people behind bars promising that someday “soon” trials will restart.
The backlog of cases awaiting trial is already huge and only getting bigger. None of the plans to restart trials may be ideal, but everyone’s going to have to get used to features they don’t like. (And I’m not even touching on the issue of how COVID-19 will likely impact the likelihood of a jury representative of the community.)
But something’s got to happen. Jailed defendants can’t sit in limbo forever.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
