(with contributions from City News Service)
Last Monday, April 6, California’s Judicial Council moved toward setting bail at zero for most misdemeanor and lower-level felonies in an attempt to limit the spread of the coronavirus in jails statewide by reducing the number of inmates. Los Angeles had implemented a similar zero-bail measure the week before.
However those moves seem to mask a general sense of chaos and uncertainty throughout the court system.
On March 23, Los Angeles County Superior Court Presiding Judge Kevin C. Brazile signed an order restricting access to all Los Angeles County courthouses to judges, commissioners, court staff and authorized people — including members of the media — until further notice, while also mandating social distancing of at least 6 feet.
On the very next day, Eric Siddall, Vice President of the Association of Deputy District Attorneys sent out an email excoriating the presiding judge and calling the courts: “the weakest link in government’s response to the coronavirus. Los Angeles County can shut down visitation to the juvenile facilities and the jails, but if the lawyers are inadvertently infecting inmates, a public health crisis will ravage our juvenile detention facilities and jails. At that point the County will be left to contend with an even more dire situation.”
And on the day after that, the unions representing Los Angeles prosecutors, public defenders and city attorneys called for a complete closure of local courts, claiming the mandate was not being followed and blasting the superior court’s failure to accommodate appearances by phone and video conference.
Crime Story will be publishing an interview with Siddall in the coming weeks to explore this and other issues related to the experience of Deputy DAs in LA.
This past weekend, as part of our effort to understand how COVID-19 is affecting defense attorneys and their clients, we spoke with a Los Angeles-based bar panel attorney, who requested anonymity so that the attorney could speak freely.
What follows are excerpts from the bar-panel attorney’s statements during our conversation.
Regarding the chaos in the Criminal Courts Building during the week of March 23:
I went to court on Monday (March 23) and things were really unraveling. The calendar city attorney assigned to the courtroom my client was in just didn’t show up. The judge was continuing cases but wouldn’t discuss anything substantive about the case without the city attorney present.
Then they closed the courts Tuesday (3/24), Wednesday (3/25), and Thursday (3/26) and moved all those cases to Friday. The court had emergency powers to declare those three days holidays and that was the best they could do. But by moving all the cases on to Friday, they created complete pandemonium and chaos on that day. And then the days after that were crazy too. It wasn’t until they really limited [access that things settled down a bit]… I’ve been to court twice this week and now you can’t even get into the courthouse [unless you’ve got the proper credentials]. They’re checking my defendant’s name and my bar card to let me in. And what they did too, they closed down a lot of courtrooms and they opened them up on opposite ends of the hall on different floors. There’s nobody there. You go up in the elevator by yourself. There’s hardly anyone in the hallway. There’s nobody really sitting in the audience because family can’t get into the courthouse anymore.
Regarding representing someone accused of a violent crime amid the pandemic emergency:
If you do have somebody who is eligible for release [on anything that could possibly be classified as a “violent crime”] and you want to try and get them out, the DA is going to sit there and stomp their feet and object which is also disconcerting.
Unfortunately for me and my clients, almost all my clients are accused of doing something violent, so none of them are getting out. And I have two clients, they want their trials, they want their day in court and they can’t get out because one of them is accused of a robbery, the other guy’s accused of an assault and he’s got a prior, so he’s got a “No Bail” hold.
I’ve seen this before. If someone is the victim of a crime and wants the police to show up quickly, they may tell them that the perpetrator has a gun or a knife to get them there quicker. So the police show up, they don’t find a knife or a gun but the guy gets charged with the knife or the gun because the victim alleged one was used. That allegation may be incredibly weak, and beatable at trial, but it will hold someone in jail who might not be a danger to society. Maybe you beat that at trial or something. But it’s really hard to get it off of the case.
I have a client in jail whose mom calls me all the time. She’s desperate to get her son out of jail. He’s awaiting trial for an assault, so on the face of it, he’s deemed a danger to the community, but the facts of the case show that his participation in the assault was minimal and he may have been trying to break up a fight. He has a “No Bail” Hold for violating probation on a prior case where he pleaded to felony vandalism with a gang allegation. That was for tagging a building with a gang name. This would have been a misdemeanor, but the gang allegation elevates it to a felony and puts a “No Bail” Hold on him. This kid isn’t a violent criminal, but with these charges he’s not eligible to be released.
I’m trying everything I can to get him out, but I can’t. She’s terrified for him and he’s terrified in jail too. It’s a really sad case because he has a prior conviction for a felony vandalism. But since “gang graffiti” is the type of vandalism… “Vandalism” is a misdemeanor. The gang enhancement elevates it to a felony because there’s no way to argue – if you tagged some building with a gang name – that you’re not a gang member.
His new case is an assault. It’s defensible but it’s an “assault.” He’s got a “No Bail” Hold. He can’t get out and he’s not what I would consider a violent criminal or anything like that.
On the unexplained extensions to statutory time limits on setting hearings for a defendant:
One of the confusing things that they’ve done, and I can’t really explain this, is that we keep getting these orders from the presiding judge adding days to the statutory time limits.
I had a case that was set for a preliminary hearing. The judge already continued it for five days until this coming friday. I checked the court calendar today and now it’s been continued for two more weeks. This guy’s in jail. He also has the strike prior for robbery. So they’re not going to let him out. He expects to be acquitted at trial but I can’t tell him when I think his trial will happen and he’s got to sit in jail and wait.
On fears of exposure to the coronavirus in the courtroom:
One thing that we’re trying to avoid is… I don’t really want to go to court and stand next to somebody who’s been in jail for the past, you know, six months. Someone there, I’m thinking, probably has coronavirus. So some courts are having the inmates just stand in the doorway, not come out into court, not sit at the table.
Depending on the courthouse, going into the lockup to talk to a defendant seems risky. There’s just no way for any kind of social distancing and you can hear people coughing in the tank back there.
Don’t forget you’ve got these bailiffs who are escorting inmates in and out of court all day long.
Defense attorneys can handle their cases in a courtroom and leave but calendar DAs actually have to stay in the courtroom all day, talking to multiple defense attorneys. They seem very on edge.
I don’t want to do a contested hearing. I don’t want to sit next to a guy for two, three, four hours in court. You know, usually in a hearing my client and I are whispering stuff to each other and getting very close.
I was on the calendar to do a preliminary hearing. All I could think was I don’t want to do this preliminary hearing. I can’t concentrate on whatever the issues are anyway. Like I don’t want to cross examine witnesses. My head’s not in it.
The more time that goes on, the odds of some inmate having COVID-19 just go up every day. The client wants his prelim… you gotta have the prelim in order to start the clock ticking on the trial to fulfill his right to a speedy trial. I want to protect my client’s constitutional rights but I’m not a fireman. I didn’t sign up to risk my life to defend my clients.
On the prospect of scheduling jury trials for his clients:
Also, I don’t know how soon the court system is going to be able to get enough jurors into a courthouse to have jury trials again, especially because of all the mistrials that were declared to get the jurors out of the courthouses. They’ve got to do all these trials like the Durst trial, right? He will probably be first in line. So how are all these trials going to happen when this thing is over? And can you force people to turn up to jury duty if they’re afraid to come to court because they don’t want to get the coronavirus?
That concludes my reading of excerpts from my interview with a Los Angeles-based bar panel attorney. We will periodically be checking in with members of the Los Angeles criminal legal community to monitor the evolving situation in the criminal courts and jails as the public health emergency continues.