Trials tied to killings are put on hold.
Several high-profile criminal cases that were expected to go to trial this year may have to wait until the COVID-19 pandemic is under control, judicial and county officials said.
When Bexar County jury trials were suspended in mid-March, selection already was underway for the panel that will decide the capital murder charge against Otis McKane, accused in the killing of San Antonio police Detective Benjamin Marconi.
The veteran officer was shot to death Nov. 20, 2016, while he sat in his patrol vehicle during a traffic stop downtown in front of Public Safety Headquarters.
After a hearing Oct. 26, the original set of potential jurors who had been summoned March 6 for the death penalty case resumed individual interviews twice a week to choose 12 of them, plus two alternates, for the trial.
“We have no idea when this trial will start,” said Judge Ron Rangel, who presides over the 379th District Court, where McKane’s case will be heard. “We hope in January, but it is based on factors that are out of our control.”
Rangel, who also is administrative judge for the civil and criminal state district courts, has been keeping tabs on COVID-19 cases and implemented a plan for all courts to resume proceedings in phases. But the rising numbers of cases continue to prevent in-person juries from being seated.
“The overriding concern is protecting the public, litigants and personnel,” said Judge Sid Harle, who presides over the Fourth Administrative Judicial Region, which covers 22 counties, including Bexar.
He supports Rangel’s reopening plan, but with the virus numbers surging, court officials have had to do as much as they can remotely, moving the legal cases with virtual hearings while waiting for conditions to allow the safe seating of in-person juries.
Before the pandemic, Texas courts averaged 186 trials per week, according to data from the state’s Office of Court Administration, which operates under the direction and supervision of the Su
preme Court of Texas.
Courts have used videoconferencing for pretrial appearances, pleas and sentencing since midMarch, and the actual courtrooms have also undergone a transformation.
To adhere to COVID-19 protocols, all persons must wear face coverings and have their temperatures taken at courthouse entrances. There are handwashing stations, signs to remind people to maintain their physical distance, seats on benches measured and blocked off, and occupancy limits in courtrooms.
As the COVID-19 numbers have risen in Texas, the state’s high court and the Court of Criminal Appeals have issued 29 orders, most recently Nov. 11, which extended the suspensions through Jan. 31.
“Based on the local conditions, as we get closer to December, it appears we will be in this pattern past January,” Rangel said.
Bexar County District Attorney Joe D. Gonzales said that whether in-person jury trials begin in February or later, his office will be ready.
“Our staff is preparing now for when that day finally arrives,” Gonzales said via email. “When we do finally return to normalcy, victims of crime can see some resolution to their cases.”
Gonzales has opposed conducting criminal trials virtually because lawyers on both sides must rely on the ability to analyze facial expressions and body language during jury selection and presentation of witnesses and evidence.
“Holding jury trials with social distancing would be a better solution,” he said.
The delay in such trials, Gonzales said, is not sustainable over an extended period.
“From the defense perspective, courts will see more defense motions asserting speedy trial issues,” he said. “From the state’s perspective, the longer we wait to go to trial, the greater the risk that we lose contact with our victims and witnesses because they change their address or just lose interest and go on with their lives.”
Gonzales said courts will have to think “outside the box” and be creative about addressing the constitutional issues of a right to speedy trial by an impartial jury.
But the latest surge has made planning around the pandemic difficult, said Rangel, who has worked closely with San Antonio Metropolitan Health District officials, arriving at a threshold positivity rate of 5 percent or less under which in-person trials could be considered.
Currently, Bexar County is at a 10 percent positivity rate and is headed in the wrong direction, officials say.
“At the same time, we need to consider the spikes (in the virus),” Rangel said, adding that because jury summonses go out five weeks in advance, things can change. “A lot can happen in five weeks.”
Also expected to be heard next year is the case involving Emond Johnson, accused of arson and murder in the death of San Antonio firefighter Scott Deem, who was killed while trying to extinguish a blaze at Johnson’s gym May 18, 2017. The case is set for trial March 12.
Christopher Davila, accused of injury to a child in the death of baby King Jay Davila on Jan. 3, 2019, also is awaiting trial. According to reports, Davila initially told police King was in the back seat of his car when it was stolen from a gas station. Days later, he led authorities to the child’s body, buried in a backpack in a Northeast Side field.
Davila’s mother, Beatrice Sampayo, and cousin Angie Torres face tampering with evidence charges in the case. Sampayo is out on bail, and Torres, like Davila, is being held in Bexar County Jail. The trial date for all three, Dec. 7, has not been reset, according to online court records.
Mark Howerton of Tyler was tried for murder last year in the 2017 death of Cayley Mandadi, a Trinity University freshman who was involved in a volatile relationship with Howerton.
The trial received national media attention last year when it ended, unresolved, with a hung jury. Howerton, out on bail, was expected to be retried this year. Currently, online court records list a trial date of Jan. 22.
Gonzales said there are other options in lieu of jury trials that defendants can consider. The state and defendants must agree, but parties in a criminal case can waive a jury trial and ask that the judge decide guilt.
“Our office has already participated in some bench trials since the start of my administration, and we are taking a long, hard look to determine if it is in the interest of our crime victims to waive a jury trial and allow the judge to rule on issues of fact as well as any potential punishment,” he said.
Meanwhile, Rangel said people in the courthouse are working, even as the pandemic has made routine proceedings take hours to complete, causing backlogs.
“The processes we have to undergo take a significant, longer period of time. And it is going to be gangbusters when things get back to normal,” he said.