The pandemic, I am afraid, is showing no signs of easing, and that means that the courts, at least in Connecticut, my home state, will remain shuttered for the foreseeable future. Amazingly, nine months into this and there is still nothing like a reliable clearinghouse for information about what is going on in the courts.
How can this be?
In the federal courts, the last general announcement about court operations took place in late September. We are now apparently in a period during which each lifetime appointee has the discretion to hold trials or not.
The resulting picture is confusing and confusion. As near as I can tell, there has only been one jury trial in the federal courts since early March, and that was a lightning quick civil trial in Bridgeport in October.
In the Hartford seat of court, confusion seems to reign. A few weeks ago, one federal judge announced that based on a report of a court-retained expert, there was an 18 to 30 percent risk of a juror’s being infected by COVID-19 if trial commenced in a criminal case. This judge concluded that trial was too risky.
However, according to a federal prosecutor, a colleague of the same judge who declared trial to be too risky announced an intention to proceed to trial nonetheless in a different case. (It is not clear whether a jury has actually been seated in that case.) It appears different judges consulting the same data – at least one hopes it is the same data – will reach different conclusions about risk. In the land of lifetime appointees, it is sometime hard to challenge a quirky judge: judges have a lot of discretion after all.
Comes now a recent report about a delayed civil trial in the New Haven federal court. In the past week or so, a third federal judge is reported to have told litigants that based on an assessment by a court-appointed expert, there was a 40 percent risk of juror infection should the trial go forward. Sensibly, the trial was delayed.
It is unclear why the federal judiciary is not publishing the risk assessment information on which the judges are relying on the District Court website. If there is a first amendment right of access to the courts, surely the public has a right to see the data judges are using to effectively shut down jury trials.
But Oz loves his secrets.
Meanwhile, on the state side, things are even more secretive, mysterious and frustrating.
After Chief Justice Richard Robinson announced in a newspaper op-ed that jury trials would resume in November, juror summonses were sent far and wide. There was talk of criminal trials in Torrington, New Britain, and, depending on whom you talked to, Stamford.
Yet the state’s web page announces that jurors are not to report if their summons direct appearing between November 2 and November 13.
Apparently, next week is an open question.
It appears that some judges across the state have been notified that they should resume working at home, a practice that was common earlier during the pandemic. This week Gov. Ned Lamont decided to extend his “emergency” public health powers until early February 2021, the maximum date permissible under law. Legislative approval will be required for a further extension.
The Center for Disease Control in Atlanta and state public health officials report that hospitalizations, death and infection rates are climbing and are likely to remain high for some time. There are delays in testing, the demand for tests being so high.
Yet this hasn’t stopped some state judges from ordering defense counsel to appear in court for routine court appearances. Upon arriving in court, counsel and client often wait, sometimes for hours, in hallways filled with people. When they see the inside of a courtroom, they are too often met not with a living and breathing judge and prosecutor, but with a television monitor – judges and prosecutors can participate from the safety of their own offices.
The defense bar is angry enough to have begun filing motions -- call them Chopped Liver motions, in protest.
Month after month, the pandemic rages on.
Month after month, the courts founders sending mixed and inconsistent signals.
Have court administrators learned so little after all this time?
Clients with pending cases are frustrated. So are their lawyers. So are prosecutors, who appear to have little idea what is going on.
I realize the pandemic caught us all by surprise. But how long will we blunder along before the state Judicial Branch and the federal bench realize that a little information could go a long way toward settling expectations and calming fraying nerves?
The judicial system is a necessary and vital third branch of government. Those running it are acting as if it is the checkout line at a fast food joint.
If we’re not going to conduct jury trials until mid-2021, then say so. Playing footsie with the truth and hide and seek with lawyers is just plain wrong.