Trials on a basketball court? How coronavirus impacts Stanislaus County courts, jury duty
From her bench in downtown Modesto on Tuesday, Stanislaus Superior Court Judge Linda McFadden looked at the eight jurors sitting in hard wooden seats in the audience.
She apologized that, because of 6-foot social distancing requirements, they couldn’t join the rest of the jurors in the comfortable cushioned seats in the jury box, and told them to raise a hand if their backs began to ache or they needed to stretch.
They were about to sit through days of testimony in the first full jury trial here since the coronavirus pandemic in March put a halt to many court proceedings throughout the state.
Across town in Juvenile Court on Blue Gum Avenue, Judge Ruben Villalobos prepared to hold his first hearing on the basketball court of the Juvenile Commitment Facility. His makeshift bench sits in the nook where guards once kept watch.
“The big plus is that my whole life I have wanted to work on a basketball court and look at where we are, I’m officially a baller,” Villalobos joked on Monday.
Courts around the state have had to improvise to meet state and federal guidelines set to slow the spread of the coronavirus while still meeting people’s right to due process and services provided by the courts.
In Stanislaus County, the public defender is holding “open air” client counseling in the grass on the north side of the courthouse.
The District Attorney’s Office is handling much of its paperwork, including discovery and filings, through an online system and is offering plea agreements to quickly resolve cases.
The court has installed Plexiglas barriers throughout courtrooms, required face coverings for anyone inside court facilities, and been holding all arraignments, juvenile matters and many other hearings virtually.
Most hearings halted with emergency order
By mid-March, Stanislaus and most other counties around the state had been granted emergency orders to drastically adjust and limit court operations, including extending time limits on arraignments, preliminary hearings and juvenile detention hearings and suspending all jury trials. Shortly after that, the state’s chief justice also issued a statewide order with many of the same rules.
But after several extensions on the state order, the hiatus on trials without time waivers has expired for those whose cases should have been heard by March 16.
That was the situation in the case that went to trial Tuesday in McFadden’s courtroom, a man who’s been in jail since last July, accused of trying to light his neighbors’ house on fire.
The case had been continued even before the pandemic due to issues with one of the witnesses, and the defense in late June filed a motion to have the case dismissed based on a lack of speedy trial. The motion was denied, and the case went to trial.
“At some point in time, if you keep postponing their trial when they are not waiving time, what happens is then it becomes a due process violation,” McFadden said during an interview in her chambers in early July. “If (a defendant is) acquitted, there are various things you have deprived them of for delaying the trial.”
On Wednesday, the defendant in the attempted arson case was acquitted. He spent a year in jail, unable to post the $100,000 bail.
Plea deals increasing
Most defendants at this time are waiving their right to a speedy trial or taking plea deals. Judge Robert Westbrook, assistant presiding judge, said the District Attorney’s Office has been working with defense attorneys to avoid trials altogether.
Despite many delays in court caused by the pandemic, several aspects of the emergency order have led to new efficiencies.
About 25 percent of cases are being resolved with plea agreements at the defendant’s first court appearance, the arraignment.
“That is something that has never happened before,” Westbrook said.
This is because, under the order, the DA’s office has seven days instead of 48 hours to file charges.
It allows time for prosecutors to send discovery to the public defender along with a settlement offer and for the public defender to discuss it with their client, said District Attorney Birgit Fladager.
“The offers extended at this first arraignment are intended to be one-time only generous incentives to encourage guilty pleas at that first court hearing to mitigate (and) keep as many people out of the courthouse as we can during this extraordinary time while still ensuring justice is served,” Fladager said.
She said there isn’t a pattern to the type of cases that are being resolved. The charges range from violation of court orders to domestic violence, robberies and assaults.
Westbrook said he’d like to see that continue even after the emergency order is lifted, but Fladager said her office won’t have the time to do that under the normal statuary scheme of 48 hours.
For now, Westbrook said, he and other judges are doing everything they can to facilitate resolutions to cases.
“That is plan A,” he said. “A jury trial is plan B. If you are called into jury duty, know that all efforts were expended to avoid having to do a trial.”
Attorney tests positive
The day jury selection began in McFadden’s courtroom, an attorney who’d been in the courthouse the day before tested positive for COVID-19.
Janitorial staff cleaned all the courtrooms the attorney had been to, and McFadden said she took her own disinfectant wipes and cleaned the chairs before the jury selection process continued.
She said she understands the risks associated with serving on a jury and being out in public in general.
People who are not willing to take that risk can defer jury service multiple times, likely for as long as Gov. Newsom’s emergency order remains in place, said Court Executive Officer Hugh Swift.
“Jury service is very important; it is fundamental to our justice system,” McFadden said.
She believes those who chose not to defer understand the risk, as well as the importance of jury service, including one prospective juror in the attempted arson case who is a doctor.
Residents here began getting jury summonses last month, and the jury selection process looks a lot different now.
Some superior courts, like those in Merced, Placer, and Tulare counties, are asking prospective jurors to report for jury service at local gyms, auditoriums or other large spaces outside of the courthouse.
In Stanislaus County, potential jurors are still reporting to the downtown courthouse but at staggered times and in much smaller groups.
Before COVID-19, the jury assembly room at the downtown courthouse on some days was at capacity with more than 200 people and jury selection being conducted for up to three felony trials at time.
Now, with social distancing, the room can only accommodate 50 people.
Between 50 and 60 people previously would be packed into the courtroom where all were questioned by the judge to weed out those with hardships or potential biases that would prevent them from serving.
Now, the jury commissioner screens for hardships before people go to the courtroom, and only about 15 potential jurors can be sent to a courtroom at a time.
This requires the judge to ask the same questions multiple times and prolongs the process a bit.
Once a jury is selected and the trial begins, the jurors, like in the attempted arson case, are dispersed between the jury box and one side of the courtroom audience.
Traditionally, family and supporters of the victims sit in the audience behind the district attorney’s table and family and supporters of the defendant sit behind the defense table, but now both will have to be on one side together.
Westbrook said he acknowledges that could lend itself to uncomfortable or even violent encounters and disturbances to the court, so bailiffs will have to be even more vigilant in ensuring that doesn’t happen.
When deliberations begin, jurors would go into a 10-by-10-foot room that Westbrook equated to “basically a closet with a table and chairs.”
Now the courtroom will be cleared and deliberations will take place there.
Virtual hearings
The chief justice’s order encourages the use of remote technology as often as possible, including for trials.
“We will certainly explore all options, but it’s difficult to have a remote jury trial,” Westbrook said. “Evidence needs to be examined. It’s hard to confront and cross-examine a witness remotely as well.”
Villalobos said juvenile hearings have been conducted virtually almost exclusively since March as social distancing is impossible in his 20-by 25-foot courtroom. During that time he, the Probation Department and county officials have worked to get state approval to use the basketball court as a temporary courtroom.
The basketball court, the size of a standard high school gym, is part of the juvenile commitment center, which was built in 2013 to house juveniles who have been sentenced. But because of a shift in the priorities in Sacramento to minimize incarceration in lieu of rehabilitation, the facility was never full and the Probation Department eventually moved sentenced juveniles to juvenile hall with the children who haven’t yet been sentenced.
The space was still being used for visitations up until COVID-19 hit and in-person visitation was suspended.
Most of the juvenile hearings that have been done virtually, via Microsoft Teams or by phone, have been brief and did not involve questioning witnesses.
But Villalobos said contested hearings like trials, sentencings or transfer hearings, to determine if a minor should be tried in juvenile or adult court, can take days or even weeks and involve testimony and lengthy arguments.
He said contested hearings were put off until now because of the emergency order and the defense and prosecutors agreeing to continuances.
Villalobos believes there are benefits to questioning a witness on Microsoft Teams: with the camera close to their face — and no need for a mask if they are in their own home — he said you can better see witnesses’ responses and evaluate their credibility.
In adult court, some judges are allowing witnesses to remove their masks once they are seated behind the Plexiglas, but there are no barriers set up on the basketball court at this time.
There are no juries in juvenile trials, so it would be easier for trials to be held virtually.
Villalobos said he’d be open to holding trials and other contested hearings virtually but not without the attorneys on both sides being on board and at this time, neither is.
“For our criminal justice system to even approximate fairness, at minimum, the accused, his or her attorney, and the finder of fact (whether it be a judicial officer or a jury) must be able to observe the demeanor and ‘read the energy’ of testifying material witnesses at all times, in order to assess their credibility and get to the truth,” Public Defender Laura Arnold said in an email. “This cannot occur via Zoom.”
Attorneys at risk when in discussion with clients
She acknowledges the risks her attorneys are taking each day. Defense attorneys in particular must sit very closely to clients in hearings and speak softly within inches of each other’s faces to communicate.
“Because of how this virus is transmitted, every close point of contact with our clients and others is a point of risk for our lawyers,” she said.
That is why she implemented the open-air counseling outside the courthouse, but once the case goes inside, masks are the attorneys’ only layer of protection.
Fladager said she would like to see more proceedings held virtually, including preliminary hearings, which determine if there is enough evidence to support the charges.
“They are being successfully, if a bit awkwardly and with some technology challenges, done in several other counties,” she said. “I hope that the court and defense counsel will continue to consider them as an option, especially if the spread of COVID-19 that we are currently experiencing continues. We are doing preliminary hearings in the courtrooms right now, and that does certainly raise exposure concerns for the witnesses, lawyers and court staff.”
As the courts and attorneys work to keep the justice system moving while keeping people safe, months of delays have no doubt contributed to the backlog.
“It is very difficult to estimate the delays associated with the COVID-19 pandemic,” Swift said. “Particularly since we are still in the middle of it and we do not know when we can resume normal operations.”
This story was originally published July 10, 2020 at 9:17 AM.
