‘More than a glitch’
Defense attorney relegated to audience for murder trial, leading to equity questions
The Anne Arundel Circuit Court administration thought of everything to prepare for the resumption of jury trials this month. Well, almost everything.
Nobody expected things to go perfectly, but a murder trial slated to begin Monday laid bare something the administration may have overlooked when it established regulations to keep the people safe as jury trials resumed for the first time since the coronavirus pandemic hit Maryland: What if a defendant has more than one attorney?
That is the question now facing the judge presiding over the trial of the man charged with fatally shooting 44-year-old Jeffrey Dickinson in Pasadena. Gregory Korwek, 41, is scheduled to stand trial Monday.
In a letter to Judge Donna Schaeffer, who is presiding over Korwek’s trial, attorney Peter O’Neill explained the issue. O’Neill said it had been suggested that Korwek’s other attorney, Robin Henley, sit in the first row of the audience throughout the trial, while two prosecutors will apparently be allowed to sit together for the proceedings.
“The current seating arrangement prevents the Defendant from having meaningful discussions with his attorneys during the course of the trial while the state is given the luxury of having such an arrangement.”
Peter O’Neill, defense attorney for Gregory Korwek
O’Neill wrote that Assistant State’s Attorneys Jason Steinhardt and Glen Neubauer said on a conference call they couldn’t effectively try the case without sitting together. So why the different standard for the defense lawyers? O’Neill argued.
“The current seating arrangement prevents the Defendant from having meaningful discussions with his attorneys during the course of the trial while the state is given the luxury of having such an arrangement,” O’Neill wrote.
In a September interview with a The Capital, Judge Laura Ripken, the administrative judge of the Circuit Court, said tables could be extended to accommodate more attorneys. It’s unclear why such an arrangement has not been proposed in Korwek’s case.
Ripken and Michael Wachs, the judge who coordinates criminal cases, declined through a spokeswoman to answer questions about the court’s policy on multiple defense attorneys participating in a trial during while the coronavirus restrictions are in place.
It’s unclear how many courtrooms can accommodate more than one defense attorney. It appears Courtroom 4C, the largest in the courthouse, could, while 2A, one of the smallest and that slated to host Korwek’s trial, may not.
O’Neill has been among the legions of lawyers who’ve praised Ripken and Wachs for coming up with a plan to keep people safe and move forward with jury trials. It was, lawyers have said, no small feat. John Robinson, a veteran defense attorney and former Anne Arundel County prosecutor, also commended court leadership but said he expected some hiccups. This could be a big one.
“Everyone understands there’s going to be some glitches,” Robinson told The Capital. “That’s more than a glitch. It’s fundamentally unfair.”
Not allowing a defense attorney to sit with their client is “a denial of the defendant’s right to counsel,” a prerogative enshrined in the U.S. Constitution and the Maryland Declaration of Rights, he said. “It’s up to the court to make accommodations for counsel, whether it’s two attorneys or three attorneys or five attorneys, to sit with their clients.”
“You can’t effectively communicate with co-counsel or your client sitting in the front row.”
Having a team of attorneys is particularly helpful during a murder trial, said defense attorney Jennifer Alexander, a former county prosecutor. It’s common for lawyers in complicated cases to split up the work and argue different legal matters or prepare to question certain witnesses.
Not having Henley by his side, is “like typing one hand behind (O’Neill’s) back,” Alexander said.
She said it’s incumbent upon the court to ensure the trials its putting on are fair. And if that means accommodating multiple attorneys, so be it.
Ripken and Wachs, among other Circuit Court leaders, have been credited with crafting a plan to allow jury trials to resume while following guidelines established by the U.S. Centers for Disease Control and Prevention to curtail the spread of COVID-19, the respiratory virus which as of Friday morning had infected about 134,000 Maryland residents and killed 3,887 more. It took some creative thinking.
The sprawling law library was transformed into a jury room capable of seating some 100 jurors. Courtrooms have a new look, too. They were reorganized for social distancing and outfitted with Plexiglas barriers. Benches in the gallery are marked with green checks and red x’s to show people where to sit. Capacity limits are posted on the entrance to each courtroom — and strictly enforced by sheriff’s deputies
But it remains to seen whether the restrictions could inhibit jury trials and lead to postponements.
O’Neill wrote in his letter that he wouldn’t ask for a postponement because it is the court’s responsibility to accommodate them; not the defense’s. He proposed a seemingly simple solution: A defense attorney could have one seat at the prosecutors table. Maybe they could adda chair? Or take down the knee wall, which separates the audience from those involved in the case, and add a small table for Henley? O’Neill proffered.
And if the court had to choose, O’Neill wrote, they should make a prosecutor sit in the audience. Not a defense attorney.
“It is the Defense’s position the right of the Defendant to receive a fair trial and to consult with counsel trumps any right of prosecutors to sit next to one another.”
The State’s Attorney’s Office declined to comment.
Robinson hasn’t had this issue arise yet. There was a seating snafu in a motions hearing. But that’s different from a trial. A trial involves more collaboration. They pass notes, whisper reminders and keep their client abreast of what’s happening. He has a case coming up and can imagine this cropping up. But he believes Ripken and Wachs will find a quick fix.
All they have to do, Robinson said, is move a few chairs.