LAWYERS FOR DOCTOR CONTEND DELAYS ARE UNLAWFUL
The jury trial has been among the many casualties of the coronavirus pandemic.
Judges across the country have widely delayed trials, saying the pandemic has created risks with cramming jurors, witnesses, attorneys and court staff into courtrooms.
But now some lawyers are beginning to assert that their client’s right to a speedy trial — guaranteed in the Bill of Rights — are being violated by the significant delays.
In Norfolk federal court this week, attorneys for Chesapeake
doctor Javaid Perwaiz argued just that, contending that the health risks of the pandemic are no reason to put off his jury trial any longer.
“We have a 70-year-old man with health issues in a white-collar case who’s stuck in jail,” said Lawrence H. Woodward Jr., an attorney representing Perwaiz, in arguing that the trial go forward in early September.
“The time has come that we need to take some risks and do some jury trials,” Woodward said. “Our Constitution is for times like this — when it’s hard to do. The standard can’t be that there are no trials until everybody feels safe and there’s no risk.”
With the federal court’s growing backlog — and only one jury trial allowed to go forward at a time beginning Sept. 14 —Woodward predicted that many defendants’ rights will be violated.
“It looks like people could be in custody for years and years without a trial,” Woodward said.
Perwaiz, an obstetrician-gynecologist, faces 63 federal charges pertaining to hysterectomies and other procedures he performed between January 2010 and his arrest last November.
He’s accused of going against standard medical care by “routinely and aggressively” encouraging women to consent to irreversible procedures, often telling them they were putting themselves at risk of cancer if they did not. He’s being held at the Western Tidewater Regional Jail.
At Tuesday’s hearing, Assistant U.S. Attorney Elizabeth Yusi asked U.S. District Judge Rebecca Beach Smith to set the trial date for Nov. 23. Delays in courts and trials, she said, are no different than what’s happened everywhere else in America.
“It’s just an unprecedented time in our country,” Yusi said.
She said there’s a danger to court staff, witnesses, personnel and the jurors themselves.
If a juror catches the coronavirus, Yusi said, “they would go home and be with their families” and potentially spread the virus there. Jurors, she said, “would feel more comfortable” if the case was delayed.
Many of the witnesses, Yusi said, are women who must testify in very personal terms about their surgeries.
But with the U.S. attorney’s offices largely closed, she said, many of those meetings have been delayed. Extra time, she said, will help those witnesses feel safer for those meetings and court testimony.
“There’s no speedy trial or due process violation,” Yusi said, contending that a delay until late November would “serve the ends of justice.”
Woodward countered the “comfort level” of jurors and witnesses shouldn’t be a factor when a speedy trial is at stake.
“Comfort is Saturday night in your den with your family,” he said. “That’s not a constitutional right.”
Though the Sixth Amendment — which guarantees “a speedy and public trial by jury” doesn’t define “speedy,” Congress said in 1974 that whenadefendantislockedup,atrial must begin within 70 days of his indictment or initial appearance.
But defendants can waive that right, and judges can still postpone trials if they find that “the ends of justiceservedby(adelay)outweighs the best interest of the public and defendant in a speedy trial.”
When he delayed jury trials across the Eastern District of Virginia in March, Chief U.S. District Judge Mark S. Davis used the “ends of justice” exception.
Jury selection, he wrote, “inherently
involves a crowded courtroom, sometimes requiring prospective jurors to spend an entire day, or longer, crowded onto bench seats where they cannot avoid physical contact with the individuals sitting next to them.”
He also cited a concern about jurors being able to focus, and not thinking about their kids being home from school. “The Court has grave concerns as to whether jurors could provide their full and complete attention during a multi-day or multi-week federal trial in light of the health risks,” Davis wrote.
In a follow-up order on June 30, Davis ruled that juries cannot resume in the Eastern District until Sept. 14 — extending his prior extension by about nine weeks.
Virus conditions in Virginia, he said, have improved but are still dangerous, and a further delay is necessary to “guarantee every defendant a fair trial in the midst of a pandemic involving a deadly and easily transmitted disease.”
Jury questionnaires, sent out to summonsed potential jurors, have been modified to provide jurors with “assurances” about courthouse safety. But time is needed, he said, to answerjuryquestionsandconcerns. The coronavirus, Davis said, has impacted Black residents disproportionately, and “a fair community cross section” on the jury pools is critical.
More time is also needed to “retrofit our Courthouses and courtrooms,” including adding plastic partitions between jury seats and finding ways to allow jurors to spread out.
He also said defense lawyers and prosecutors need more time to safely meet with locked up defendants and witnesses. “The Court cannot prioritize speed over the critical steps needed to preserve every accused defendant’s right to a fair trial,” he wrote.
The delay to mid-September, he said, ensures that jury trials “provides the accused defendant with the full panoply of trial rights” including that jurors are “not encouraged to rush to judgment during deliberations based on a fear of exposure to COVID-19.”
Perwaiz was arrested on 11 felony counts in November 2019, and both sides agreed to a June 2 trial date.
That date was canceled in April when Davis largely shut down the federal courts — save for “emergency proceedings.” At the time, Perwaiz’s attorneys, Woodward and Emily Munn, did not object to the first delay.
But when Perwaiz was indicted on dozens of new counts on June 24, his attorneys told prosecutors and the judge that their client would no longer waive his speedy trial rights. A new trial date was set for Sept. 2. But Smith scrapped that from the docket on July 1, citing Davis’ order regarding jury trials, leading Woodward and Munn to object.
“The history of our nation has involved unanticipated challenges, ranging from public health emergencies, devastating hurricanes and tornadoes, terrorist attacks, widespread forest fires, earthquakes, and mass shootings,” Munn wrote in a motion on July 5.
Though the coronavirus “provides unique challenges” to court personnel and would-be jurors, she wrote, there is “no precedent” in the country’s history “for the indefinite denial of a speedy trial” while jailed.
At Tuesday’s hearing — with everyone in the courtroom wearing masks and with Smith asking lawyers to wipe down the podium after eachuse—Woodwardsaidhedidn’t buy that a trial in early September was not feasible.
Citizens ”being able to do hard things in hard times,” he said, “is the nature of public service.”
He pointed out that the federal courts have begun to hear misdemeanor and federal traffic cases from local military bases. “Jury trials should be at the top of what we do,” he said, not the last thing on the list.
Smith said at the hearing that she and other judges take speedy trial rules seriously. “It’s a tremendous dilemma for the judges,” she said, saying she “doesn’t know of a judge” that disregards speedy trial rights.
At the same time, she said, judges are rightfully “concerned about the safety of the public” and court personnel alike.
She said it’s too late in the process to summons jurors for a Sept. 2 trial, adding that trial judges don’t control when the questionnaires and summonses are sent to potential jurors.
The first trial, she said, likely can’t begin until Sept. 14. But it wasn’t immediately clear clear whether Perwaiz’s trial could be the first one to go forward, or how that decision will be made.
“This is an order from the chief judge,” Smith said of the court’s order delaying jury trials. She added that “maybe the person who writes the order” should hear the challenge rather than asking her to declare a fellow judge’s order unconstitutional.
Woodward agreed that it was an unusual step, but he didn’t know of another way to get the issue heard. He said he thought Smith was the properjudgetohearthechallenge— at least initially — since she’s presiding over his client’s case.
None of the reasons given at the hearing for delays to jury trials, he said, “would override the Constitution.”
Smith said she would rule by early next week.