In Belgin Palaz’s office sits a black chalkboard with a silver metal border. On it, written with white chalk, are the names of each of the public defender’s 13 incarcerated clients, some of whom have been locked up since 2019.
Palaz, assistant public defender in Harford County, Maryland, has only closed 15 cases in the last year.
Normally, she said, she would close an average of 10 to 20 cases a month.
“I have some clients who had never even gotten to go to court,” Palaz said. “But they’re locked up because of this charge, and it’s because of all the pandemic delays. … Our clients are struggling with it, and not necessarily because they don’t understand the concept, but because the blatant unfairness of it is just something that’s really hard to grasp.”
Many low-income defendants are unable to afford bail and remain in jail until their hearing or trial, putting them at risk of covid-19 exposure.
In January, Palaz began intently tracking her clients’ movements in detention centers after one client was kept in the same cell as an inmate who had tested positive for covid-19. Her client, who has asthma, eventually tested positive, and a judge ordered him to be released to home detention on a $10,000 unsecured bond, meaning he only owes money if he doesn’t show up for court.
When people who face criminal charges can’t afford an attorney, the court appoints public defenders to represent them. Public defender programs have long been underfunded, with attorneys tackling heavy caseloads with few resources, and for some, the pandemic has led their already daunting workloads to grow.
After the pandemic led to extended courthouse closures and suspended jury trials in several states, some criminal courts are experiencing backlogs that prosecutors estimate will take years to get over. For public defenders, this means balancing their responsibility to get their clients a speedy and public trial with keeping them safe from covid while in jail.
Incarcerated defendants are spending longer in jail while awaiting trial, and some states have suspended speedy trial rules that require trials to take place within a certain amount of time. The Sixth Amendment guarantees defendants the right to a speedy trial.
With the court’s backlog in Harford County, Palaz said she expects meeting speedy trial requirements will become an issue when Maryland resumes jury trials in April.
Bill Raftery, a senior analyst at the National Center for State Courts, said courts can suspend speedy trial rules during extraordinary circumstances – like a pandemic that has prevented crowds from safely gathering in courthouses.
In Kansas, a push to put speedy trial rules on hold for years
The Kansas House of Representatives passed a bill in February that would extend the state’s suspension of speedy trial rules until May 2024. While in place, the rules allow cases to be dismissed if they don’t go to trial within 150 days of arraignment.
Kansas prosecutors, including Sedgwick County District Attorney Marc Bennett, have asked for this extension in order to get through their case backlogs without having to dismiss cases.
Bennett said while the office has been more selective about the low-level charges they’re filing, the county is one of many in the nation that saw a rise in homicides last year. Sedgwick County had a record 59 homicides in 2020, Bennett said.
During his 23 years serving in the district attorney’s office, Bennett said 40 to 50 murder cases were awaiting trial at any given time. Right now, that number is about 120.
“(That’s) double a bad year, triple a good year,” Bennett said.
Sedgwick County returned to jury trials in September, but Bennett said things are slow-going, with only two out of its 10 courtrooms outfitted with covid-safe materials, including plexiglass between each juror.
“I’m hearing rumblings that the other eight courtrooms may be outfitted by May,” Bennett said. “So we could be rolling by then. … And I’m hoping by somewhere in 2023, we can have the backlog realistically worked out, because the truth is, people will take pleas. They’d rather not risk a trial.”
Sonya Strickland, chief public defender in Sedgwick County since January, said that while she doesn’t like the idea of suspending speedy trial requirements, she sees why there is a push for it.
“I think, just as defense attorneys, we’re never in support of folks being held in custody any longer than absolutely necessary,” Strickland said. “You know, speedy trial is a cornerstone of our judicial system, and to see (the suspension) extended is just discouraging. However, … part of the reason they’re doing it is so that there is no onslaught of cases, because we can’t handle that kind of situation.”
Strickland said each Kansas public defender’s office has the ability to stop taking cases once each attorney has 65 cases. She said her office stopped accepting cases for seven months last year due to attorneys exceeding their caseload limits.
During this seven-month period, Strickland said low-income defendants were assigned a lawyer from a list of private attorneys who volunteer to take cases when public defenders cannot.
Strickland and Bach Hang, a public defender in Strickland’s office, each have about 10 clients waiting on jury trials. Hang said he thinks suspending speedy trial rules until 2024 would only exacerbate the existing backlog.
“Right now, it’s like we’re emptying this ocean with a teaspoon,” Hang said. “(2024) is a long time from now. I think if you do a speedy trial thing like that, the ocean gets bigger or the teaspoon gets smaller.”
And while Sedgwick County prosecutors are filing fewer charges, Hang argued that because the Kansas statute of limitations to charge someone is generally five years, those charges could be made in the future once prosecutors are no longer worried about a backlog or outbreaks in the jails.
Scott Hechinger, founder and director of the national public defender support initiative Zealous, said prosecutors asking for more time because their offices can’t handle the caseload is a justification that falls short.
“It’s going to take some time, but to suggest 2024 and talk about the burden on an office?” Hechinger said. “Frankly, when you’re balancing that against the deprivation of someone’s liberty, I don’t think it’s a fair and proper balance.”
Video hearings: ‘Lower-quality justice’ or an avenue to justice
Since the pandemic, many jurisdictions have been holding video-conference hearings and civil trials, and last year, one court in Texas held the first criminal jury trial on Zoom for a defendant accused of a misdemeanor charge of speeding in a construction zone.
Each potential juror was given an iPad to attend the trial if they needed a device, said Texas Poverty Law Project co-founder Carl Guthrie, the attorney who represented the driver.
Overall, Guthrie said he was happy with how the trial went, as was his client, who had been waiting about two years for her day in court.
“(My client) wasn’t getting any justice by sitting around waiting forever,” Guthrie said. “And she’s the only one being hurt by that. Sure, the court has the backlog, and the prosecutors have to wait, but none of them have this $500 axe hanging over their head. None of them (worry about) if they’re going to lose their driver’s license … or go to jail over some fines.”
While Guthrie hasn’t been a part of any video-conference jury trials since, he believes virtual court proceedings bridge a gap for defendants and jurors who may have found it difficult to make it to a courthouse because of work, child care duties or lack of transportation. Guthrie believes his clients are suffering due to this prolonged wait for trial.
“I think if my client wants to go to trial, and my client wants to go to trial now, then it is my job to get them there,” Guthrie said. “It’s the court’s job to facilitate it, and it’s the local government’s job to make sure it happens. We cannot just keep saying that we’ve got to wait.”
Others say defendants are being harmed more than they’re benefitting from not being in the courtroom.
A 2020 report from the Chicago Appleseed Center for Fair Courts says that remote court proceedings threaten a defendant’s rights to confront witnesses and speak with counsel before and during trial.
Andrew Davies is director of research for the Deason Criminal Justice Reform Center based at Southern Methodist University’s law school. After months of being able to conduct hearings and other proceedings by video, he said reverting back to all in-person proceedings may be unpopular.
However, he said he’s heard from public defenders that it’s more important for a defendant to be in the same room as the judge and jury who are deciding their fate. The consequences of their decisions can feel less like they’re having a real effect on someone who is only a square on their computer screen.
“There’s this real concern that video is a lower-quality experience, and it’s lower-quality justice in the end,” Davies said.
Strickland, the chief public defender from Sedgwick County, Kansas, said she would never agree to a virtual jury trial.
“I was even concerned when we were talking about gearing up for jury trials here. They were thinking about having the clients at a (separate) table six feet away,” Strickland said. “And I didn’t like that either. It’s a show of my faith and my belief and my advocacy to sit next to my client and be able to communicate with him or her.”
Guthrie said he disagrees with those who say virtual trials dehumanize the defendant.
“I challenge that, because we, as a society, interact with screens 90% of our lives,” Guthrie said. “Trying to say that you can’t understand the humanity of somebody on a camera – it’s like saying no one’s ever cried in a movie.”
Preventing backlogs with low bond, plea deals
Kevin Finlay is a Cleveland County public defender with the Oklahoma Indigent Defense System.
The pandemic has changed a lot of things, and for Finlay, it’s made him a morning person.
Because those in custody are no longer being transported to the courthouse for hearings and meetings with their attorneys, Finlay said he’s at the Cleveland County jail around 7 a.m. each morning to meet with clients and keep them up to date on their cases. Finlay said his current caseload of 150 to 170 cases is the same as it was before covid.
Cleveland County Judge Jeff Virgin said he saw an increase in plea deals during the pandemic, preventing a backlog in the criminal court. He did not provide the number of pending cases by publication time.
An Oklahoma Supreme Court order suspending jury trials ended in late July, but Cleveland County has only held a few jury trials since, Finlay said.
Since last year, states like California and Alaska temporarily eliminated bail for certain low-level misdemeanors to keep jail populations down.
Tim Laughlin, executive director of the Oklahoma Indigent Defense System, said he has seen many Oklahoma courts push for lower bonds and better plea deals in an effort to prevent outbreaks in jails as much as possible, something he hopes will continue after the pandemic.
“We should take the lessons we’ve learned in dealing with a very extraordinary set of circumstances … and try and carry those lessons forward,” Laughlin said. “Let’s see if we can turn this into something where we’re rethinking the way we do things and try to keep the system more proportionate and more equitable.”
The past year for public defenders has been challenging, but Finlay said it hasn’t deterred him from wanting to continue in this line of work. In fact, he said, it’s done just the opposite.
“It was probably the most rewarding year of my career,” Finlay said. “The pandemic had put these obstacles in front of everybody in the court system – most importantly, our clients. I feel really proud of the fact that I have helped them to get justice and hopefully have gotten them in and, more importantly, out of the criminal justice system in about the same amount of time and with the same amount of resources to be successful once they’re out.”
Jana Hayes is a writer and print journalism student at the University of Oklahoma. Email her at janarhayes@gmail.com.
This report was funded by our readers. Big If True is a 501(c)(3) news nonprofit based in Oklahoma City, and you can support our independent journalism here.