DOVER — Navigating a balancing act of providing justice for all and courthouse safety due to COVID-19 concerns, the state’s legal system continues to operate under an officially declared judicial emergency.
Minus a lone DUI case in Kent County last fall, criminal jury trials within the state haven’t been held in nearly a year as hundreds of defendants await their day in court.
There’s hope for jury trials to resume by early summer, Delaware Supreme Court Chief Justice Collins J. Seitz said Friday, but that’s dependent on the upcoming reach of judicial staff vaccinations for the coronavirus.
There are currently 544 criminal pending cases in New Castle County ready for trial, 395 in Kent County and 296 in Sussex County. Juries won’t be needed for most of them, however, as many cases are often resolved by a plea beforehand, Chief Justice Seitz said.
As part of a judicial emergency order, Chief Justice Seitz suspended speedy trial rights but acknowledged a need for swift scheduling upon their resumption.
Some in-person hearings are scheduled to resume March 15, and a New Castle County grand jury is planned to convene next week with Sussex County sometime this month. Kent County held a grand jury hearing this week as indictments were returned.
“It’s obviously of great concern to the judiciary that people need to get their cases to trial and not just criminal cases but civil cases,” Chief Justice Seitz said.
“But criminal cases will take priority. We have got a schedule in place to get those cases to trial just as soon as we can get vaccines for the judiciary.”
Chief Justice Seitz said cases will be prioritized by seriousness of the alleged offenses and how long the matters have been pending.
“We don’t have it broken down by percentages but if necessary the judiciary has prioritized individuals involved with criminal matters, including jury trials, for vaccine when it is available to us,” Chief Justice Seitz said.
“We are anxiously awaiting word from the Division of Public Health when we’ll be able to administer vaccines for the judiciary.
“We have a plan in place for judiciary involving shots at all three courthouses and it also involves not only the judiciary but Attorney General’s Office, Office of Defense Services (public defender’s office) and federal courts.”
When a threshold for returning to trial is reached, Chief Justice Seitz said “we’re going to have a full-on, full court press to get these cases to trial.”
For those held in custody and awaiting trial, the delay is magnified, Delaware Chief Public Defender Brendan O’Neill said.
“You’re in custody and presumed innocent but for circumstances certainly beyond the client’s control, that trial is not happening,” Mr. O’Neill said.
“At some point there’s going to be a tipping point where the clients through their lawyers are going to say ‘Hey I don’t care about this COVID thing, I have my rights and I want my trial.’”
Some attorneys have filed motions for case dismissals for lack of a speedy trial “but to date those motions have not succeeded.”
According to Mr. O’Neill, “It’s hard to say when the tipping point is but every day we get closer to it.
“I think everyone is aware that this is an approaching crisis but I have to say the court system is doing its best to balance the need for safety while honoring the rights of people to have their days in court.”
After meeting with other stakeholders Thursday, Mr. O’Neill emerged believing that some in-court proceedings, including preliminary hearings, violations of probation, arraignments and pleas by appointment may resume on March 15.
“We’re going to crawl before we walk and we’re going to walk before we run,” Mr. O’Neill said. “All these goals are subject to change based on factors including the vaccination rate. If the virus spikes in the community, the level of compliance we get (from the public.).
“None of these dates and goals are set in stone. These are goals and the hope is that we meet these goals. But there’s no guarantee and we’ll see how it plays out.”
Once in a courtroom, presentation of cases may be affected by the delay in trials, Mr. O’Neill said.
“Obviously for either side, the state of the defense, if you have a number of witnesses that you’re relying on to present your case, the passage of time not only causes memories to fade, but also it’s harder for either side to reassemble their cast,” Mr. O’Neill said.
“People move, they lose interest, they don’t answer subpoenas. It’s harder to get the people to actually identify the people to locate them, to get them into court, it gets harder and harder as time passes.”
While there may be some hesitancy for potential jurors to report for duty, Chief Justice Seitz said he believes “Delawareans will rise to the occasion. They know that this is an essential service that needs to be performed and that we’ll get the numbers that we need.”
Delaware Attorney General Kathy Jennings agrees.
“Despite adversity, the DOJ’s staff continues to demonstrate why we are Delaware’s best law firm,” she said in an email.
“The pandemic weighs on everyone, including the entire criminal justice system — but our prosecutors, paralegals, social workers and support staff continue to work day and night to safeguard public safety and to ensure that our office is ready when the courts are reopened.”
Phase Two continues
Last week, Chief Justice Seitz extended Phase Two of the judicial emergency until it expires on April 2.
Non-jury criminal and civil trials have continued under Phase Two, with safety precautions mandated.
The standard face covering and social distancing requirements exist to limit the potential of exposure to the virus and entry into the courtroom is limited to no more than 10 people, not including court staff and attorneys. Any gathering of people needed for court proceedings should be conducted in other courtrooms or the public area adjacent to courtrooms with the same limitations, according to Phase Two guidelines.
Through video, proceedings for incarcerated defendants have been conducted.
Under Phase Two, courthouses are open, though no more than 50% of building capacity is allowed. Admissions are monitored and “corrective action” is taken when the maximum allowed occupancy is reached, according to guidelines. In-person staffing is limited to no more than 50%.
No more than 10 people are allowed in a courtroom or related public area, and all non-courtroom public areas are closed.
Other events that can be held under Phase Two include:
• Civil hearings that require witnesses or client participation.
• Final case reviews of incarcerated defendants by video
• First case reviews of incarcerated defendants by video to the extent a waiver form has not been filed
• Involuntary outpatient hearings in Sussex and Kent Counties; actions are held by video in New Castle County
• Sentencing of non-incarcerated defendants
• Pre-sentence interview of incarcerated defendants by video
• Gun relinquishment hearings
• Case reviews for non-incarcerated defendants
• Problem solving courts for non-incarcerated defendants.