Right to speedy trial falls victim to pandemic

Thanks to the pandemic, people charged with crimes may be held in jail for an unprecedented length of time before a jury determines their innocence or guilt. Although the state and federal constitutions demand speedy trials, an accused person may be held on bond for many months, or longer. Some will eventually be found not guilty, while many others will be found guilty only of less serious charges.

Due to valid safety concerns, it’s difficult to know when criminal jury trials will resume in Connecticut. This has huge implications for the accused, for people who are said to be their victims — and for democracy.

After an arrest, individuals are often released on certain conditions or if they post bond as ordered by a judge or a bail commissioner. For people with few or even no assets to post, they may be held until the trial. That could be for quite a long time, without being found guilty of anything. This not only diminishes a person’s rights as afforded under the Sixth

Amendment to the U.S. Constitution, it can also endanger the individual as jails increasingly become hot spots for the coronavirus.

The state wisely released some people held for relatively low-level accusations. However, a person held on a more serious charge or a higher bond isn’t likely to be released and will be held in jail on bond until a plea bargain is reached or trials begin, whenever that might be. The delay will have nothing to do with whether the person is eventually found guilty, or acquitted and released.

Attorneys and clients may start to push for negotiated settlements rather than tolerate the uncertainty of the timing of a trial. For some, that will be sensible. But there will be people who see no other option that to agree to plead guilty rather than wait for the chance of acquittal by trial — a day that is increasingly seeming less likely to ever arrive, as cases of Covid-19 are once again on the rise.

In Connecticut, the law ordinarily requires that criminal trials must begin no later than one year after charges are filed if the accused demands a speedy trial. If a defendant hasn’t been able to post bond, he or she must be brought to trial in eight months. That just isn’t possible now.

Court officials are working toward solutions. They are attempting to speed cases along with the use of technology. In early June, the judicial branch began conducting remote pretrial conferences in criminal cases and virtual pretrial hearings with a judge, prosecutor and defense attorney.

Also, additional courthouses are set to re-open, bringing the number of open courthouses to 25, including Supreme and Appellate courts. The judicial branch also is planning to expand courthouse hours and days of operations.

But unfortunately, there will still undoubtedly be unprecedented delays.

There is no playbook for what the courts are facing, and each possible choice seems to have risks.

The Administrative Office of the U.S. Courts recently distributed to federal judges a 19-page handbook on restarting jury trials. The handbook includes advice on PPE, wider use of jury questionnaires and enhanced safety procedures. One possibility is to have jurors wearing face masks, shields and gloves. They would be asked to adhere to social distancing guidelines while in court and in the jury deliberation room. But it is tough enough to get people to serve on juries. When coupled with these restrictions, a fair amount of concern, fear and resentment is likely to make a bad situation worse. This also fails to take into consideration the need to exclude those who are considered at-risk — namely citizens over 65 and those with certain medical conditions. Eliminating this participation erodes the necessity that jurors represent a fair cross-section of the community.

The pandemic has forced many compromises, so it’s of little surprise that we’re between a rock and a hard place in the courtroom too. But the pandemic has also led to a host of creative innovations. As we continue to innovate, we must prioritize ways forward that will restore and preserve people’s rights.