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Trial by Jury Must Survive the Pandemic.

On March 20, 2020, the Supreme Court of the State of Washington suspended the right to trial by jury until after April 24, 2020.  Their reasons for doing so seemed to be exclusively derived from the orders of Governor Inslee, who at the time had barred gatherings of more than 50 people; and the Center for Disease Control, who had recommended against gatherings of more than 10 people. Supreme Court of Washington Amended Order No 25700-B-607.

Subsequently, a dizzying array of confusing, ambiguous, contradictory, misleading, unjust and nonsensical emergency orders have flowed from a cascade of authorities across Washington State.  It would be impossible to summarize them all, but the general theme of these orders has been that “nonessential activities” shall halt, whilst “essential activities” continue with additional safety measures. 

The courts were ultimately deemed essential to allow prosecutors to formally charge people, for conditions of release to be imposed, and to accept pleas of guilty.  But the rights to confrontation, investigation, speedy trial and trial by jury itself have been significantly impaired by subsequent actions taken by the Supreme Court of the State of Washington.  At present, no jury trials may be allowed to begin in the State of Washington until July 6, 2020.  But already, several jurisdictions are indicating that is too soon.  Some courts have already indicated we will not see jury trials again until 2021 or 2022.  This raises a host of incredibly serious constitutional concerns.

The result is that I now find myself representing doctors, nurses and EMTs – all of whom have had their licenses suspended or been put on unpaid leave pending the resolution of their minor criminal cases – thereby taking them from the front lines of saving lives in the midst of a pandemic.  I am currently representing veterans of the Iraq and Afghan wars – some of whom have purple hearts from their service – who right now have to wrestle with the fact that the rights they were told they were defending have been deemed less essential than shopping for toilet paper.  As I writes this post, I can see the Emerald Queen Casino from my office – which is currently open to take my client’s money – while the timeline for restoration of the right to trial by jury remains uncertain.

THE PANDEMIC IS NOT UNPRECEDENTED, THE RESPONSE IS

Pandemics are nothing new, nor are they particularly uncommon.  The World Health Organization tracks multiple pandemics in a given year, as these archives demonstrate.   

Most of the proposed preventive measures adopted to battle Covid 19 are also ancient strategies to combat disease.  The Book of Exodus references social distancing in the Passover story, with Moses telling the Hebrews of a coming divine judgment from which they can only escape if they shelter inside their homes subsequent to marking their door frames with lamb’s blood.  Exodus 12:1-29.  The Gospel of Luke claims that Jesus broke quarantine by coming into contact with “ten men who had leprosy” who “stood at a distance and called out in a loud voice, “Jesus, Master, have pity on us!”’  Luke 17:11-13

But while social distancing and quarantine and shelter orders may be nothing new, the decision to curb the functions of the courts – to this degree – is unprecedented.  It furthermore seems out of step with the framers’ intent.  This is not because the framers were ignorant of disease.  On the contrary, most of them had lost family members to diseases like smallpox and yellow fever.  Ben Franklin was himself an epidemiologist, and Thomas Jefferson personally promoted and administered some of the earliest vaccine trials on this continent.  See Clay Jenkinson, How Jefferson and Franklin Helped End Smallpox in America

Contrary to some in authority today, the framers knew that pandemics do not go away with a “tough two weeks” of staying home as some early in this crisis had suggested.  They would never have suggested giving governments the authority to suspend essential constitutional rights until a disease like smallpox – finally conquered and eradicated in 1980 – was defeated. 

We need not look particularly far to confirm this truth then with our founding Chief Justice John Jay.  Justice Jay served as chief justice of the US Supreme Court for six years until resigning to become governor of New York.  Less than a month after being sworn in, a yellow fever epidemic hit New York City. Two years prior, yellow fever had killed 10% of the population of Philadelphia, and even prompted President George Washington himself to flee the city that was then the nation’s capital. Governor Jay monitored the situation closely, was transparent in his assessment of the disease’s spread, did close the City’s ports…but he did not embrace panic nor does it appear as though he thought it appropriate to close the courts.

Yellow Fever was a scourge for most of this country’s history.  As was small pox, typhoid, tuberculosis etc.….all of which had a higher CFR than Covid 19.  The Spanish Flu is believed to have killed 675,000 Americans at a time when our country was less than 1/3rdits present size.  Yet the courts were always considered essential services which must remain open to ensure that, if nothing else, the ideals enshrined in the constitution survived the disease.   

As a previous generation declared in reviewing a criminal case which was complicated by the sudden outbreak of a yellow fever epidemic:

Pestilence, like war, disrupts society, and silences the law. It may excuse delay where there has been reasonable diligence, and demands the most careful application of rules adapted to a normal state of affairs, especially in criminal cases which involve the life or liberty of the citizen.

Sims v. State, 72 Tenn. 357, 360 (1880).

THE SUSPENSION OF THE RIGHT TO TRIAL BY JURY – STATEWIDE – SEEMS NOT ONLY UNPRECEDENTED BUT CONTRARY TO CONSTITUTIONAL AND STATUTORY LAW

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed. 

Article 3, Section 2, United States Constitution

No person shall….be deprived of life, liberty, or property, without due process of law.

Fifth Amendment, United States Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….

Sixth Amendment, United States Constitution

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Fourteenth Amendment, Sec 1. United States Constitution

“The right of trial by jury shall remain inviolate….”

Article 1, Section 21, Washington State Constitution

“In criminal prosecutions the accused shall have…a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed…”

Article 1, Section 22, Washington State Constitution

What is particularly stunning is that in 2006, the Washington State Legislature passed the Pandemic Influenza Preparedness Act.  RCW 70.26. 

RCW 70.26.010 flatly declares:

 It is therefore the intent of the legislature that adequate pandemic flu preparedness and response plans be developed and implemented by local public health jurisdictionsstatewide in order tolimit the number of illnesses and deaths, preserve the continuity of essential government and other community services, and minimize social disruption and economic loss in the event of an influenza pandemic.

Yet, the history books will record that it was not the expressed Pandemic Influenza Preparedness Act that controlled our government’s response to Covid 19, but rather Governor Inslee’s decision to invoke emergency powers under RCW 43.06.220 that had never been employed to battle disease before and surely were never designed for that purpose.   RCW 43.06.220 was passed in 1969 and concerned the Governor’s powers to deal with “Public Disorder, Disaster and Riot.” In short, the statue is a reflection of the chaos of the 1960s and perceived violent unrest Vietnam and the Civil Rights movement had inspired at home.   It had never been amended or designed with any intention of empowering the governor in such ways for such a crisis.  

CrRLJ 3.3 and CrR 3.3 sets the time for trial for both in and out of custody defendants.  But the Supreme Court of Washington has ruled that Covid 19 constitutes an “unavoidable and unforeseen circumstance affecting the time for trial beyond the control of the court or of the parties” per CrRLJ 3.3(8).  See Second Revised And Extended Order Regarding Court Operations No. 257000-B-618, page 7, paragraph 11. 

What I cannot seem to reconcile about this conclusion is that the basis for the suspension of the right to trial and of speedy trial is – according to the Supreme Court’s own order – based entirely on the orders of Governor Inslee, President Trump, and the Center for Disease Control.   Naturally, of course, the Judicial branch is separate and equal to the Executive, and it is unclear to Defense Counsel why the Supreme Court of Washington continues to defer to the executive branch as to frame policy.  

Nor could it really be said that Covid 19 was “unforeseeable.”  Most generations of Americans experienced serious pandemics and epidemics prior to this. The Washington State Legislature foresaw a pandemic coming in 2006, and created an expressed statute for local authorities to ensure essential government services continued.   RCW 70.26.010. While there is precedent from the 19th century for individual courts in individual counties in select sections of this country to briefly (40 days or so) suspend operations to this degree, never before has anything like this been allowed to transpire. 

WHERE’S THE RIGHT TO SPEEDY TRIAL IN ALL OF THIS?

At present, the Supreme Court of Washington has issued a blanket order suspending the 6th Amendment Right to a Speedy Trial Across Washington State.  They have also suspend the statue of limitations on criminal cases and several court rules….I am not convinced the Supreme Court of Washington has the ability to suspend the 6th Amendment Right to Speedy Trial, but I concede they do have the ability to rule that continuance of that right is warranted. That decision, however, must be made on a individual – case by case – basis.  This means that those courts who have currently stopped even setting cases for trial are in violation of the 6th Amendment.  

Our modern understanding of the right to Speedy Trial comes from Barker v Wingo.  That cases concerns a murder that transpired in 1958 in Kentucky, just as the second wave of the Asian Flu Pandemic (which killed 116,000 Americans) came to an end.  The Courts remained open.  Barker was convicted after a significant multiyear delay in his right to trial by jury. His case was finally heard by the United States Supreme Court in 1972.  

Before the Supreme Court ruled in Barker case, it issued a decision in 1967 called Klopfer v North Carolina  which held that “the right to a speedy trial is fundamental and is imposed by the DPC of the 14thAmdenment on the States.”  The following year the Hong Kong Flu Pandemic hit America, killing another 100,000 people. Again, the Courts remained open.  

The Court in Barker went to great lengths to describe why Speedy Trial is necessary not just for individual defendants, but also for prosecutors and the public at large.  The Court also recognized that sometimes continuances will be required that don’t necessarily benefit anyone and introduced a multipart balancing test for trial courts in individual cases to consider.

But in the age of Covid, the factor in this balancing test of primary concern is “the reason for the delay.”  Prosecutors now argue that the Supreme Court has already applied the balancing test to all defendants in Washington State making any Speedy Trial challenge moot.  As the Supreme Court declared on March 16 “the ends of justice served outweighs the best interest of the public and the Defendant’s rights to a speedy trial due to unforeseen and unavoidable circumstances.”

But at the risk of telling the Supreme Court they are wrong, I see no alternative but to respectfully disagree.  Barker and its progeny make clear that the reason for the delay of the right to trial under the balancing test is a case specific standard left to the trial court judge, and therefore a general order suspending the right to trial by jury ensures there will be no individual consideration at all.  

The Supreme Court could have mentioned a public health emergency in its list of examples to justify delay of trial in Barker but they didn’t despite the fact two serious global pandemics hit this country between Mr. Barker’s arrest and his day before the Supreme Court of the United States.   No subsequent Supreme Court decision has touched the issue either.  

In Furlow v United States, the 9thCircuit briefly examined whether a twelve-day delay of trial for an out of custody defendant because Mt. St. Helens erupted was a violation of the Sixth Amendment Right to Speedy Trial.  The Court observed:

To determine whether Furlow was denied a speedy trial this Court has considered the cause of the delay, the length of the delay, the judgment of the trial court as expressed in its order, Furlow’s assertion of his rights and what prejudice resulted. The relatively brief delays do not rise to the level of presumptive prejudice.

            Furlow v United States, 644 F.2d 764,769, Court of Appeals, 9thCircuit (1981)

The Court ruled Furlow was not unfairly prejudiced, but a 12 day delay of trial for an out of custody Defendant is very different from what we are witnessing in this pandemic.  Furthermore, unlike with Furlow,  the decision to deny the right to trial by jury is – from as far as I can understand – not being left to the trial court but rather is the result of a blanket order by the Supreme Court of the State of Washington, which has seemingly deferred to the Executive branch of government to support a multi-month state-wide suspension of the right to trial by jury, including in small counties like Garfield County which has less than 3,000 residents, and still zero identified Covid 19 cases.  While the impact of a volcano on a delay of the right to trial may need no explanation if – by erupting – it impedes access to the court, a disease is more complicated and longer term in its impact. 

So in short, if the State truly feels it is in the public interest to accuse someone of a crime in the middle of a pandemic, they have to simultaneously ensure a constitutionally appropriate process to preserve due process – including the right to trial by jury in at least a semi-speedy fashion. 

That’s not something the Supreme Court has the authority to suspended.  These are both State and Federal Constitutional guarantees to the accused and to the community to limit the government’s inevitable abuse of power.  You cannot accuse someone of a crime without a plan to try them and simultaneously claim this is a constitutionally permissive or just process.

WHAT IS THE FUTURE OF JURY TRIALS POST COVID

This is the scariest question of all.  It’s my experience that whenever the government tells the American people this is an unprecedented crisis like we’ve never seen before (untrue) and the only thing we can do is ask you to give up basic constitutional rights for an undetermined amount of time…nothing good follows. But for the moment, this is what is happening:

Some jurisdictions are advocating conducting trials online, or shrinking the size of juries to promote social distancing.  There is ample evidence to support the notion that these measures – while attractive to courts as cost saving measures – significantly undermined the accused’s right to a fair trial and further stack the deck for the prosecution.  It is easier to condemn someone from behind a screen than in front of you – there is ample evidence to prove that. It’s also unlikely you can effectively conduct cross examination or jury selection from behind a screen.  I’m on record as being against it.

In addition, there are serious tech concerns – not to mention a myriad of constitutional issues from the confrontation clause to the right that courts be open to the public.  Is a trial really public if it’s only accessible online through a delayed feed?  What happens if the signal cuts out, does that justify a mistrial?  The inevitable result will be the erosion of traditional rights to the accused and to the community that depends on fairness as a foundation for faith in the system.  

Better ideas would include

  • Face masks for all jurors
  • Expand the traditional pool of juror notices to ensure enough people agree to show up for jury duty.  I am confident this is not going to be an issue given how willingly people have demonstrated acceptance of the risks to go outside or seek normalcy or exercise their right to vote in the midst of a pandemic.  People are passionate about the right to trial by jury.
  • If social distancing does not comport with courtroom dimensions, consider holding jury trials outside the courthouse in school gymnasiums, stadiums, convention centers, and increasingly vacant commercial real estate which are not expected to be used for quite some time during this pandemic.  It’s worth noting that the legendary Clarence Darrow waged the Scopes Trial against William Jennings Bryan in a court that was held outside to accommodate the intense summer heat.  

These are unconventional times, which may justify unconventional methods of practice to preserve essential constitutional rights.  The Law Office of Chris Van Vechten implores the Court to make decisions that are citable to our constitution, our statutes and our precedents, because the alternative is extremely alarming and invites unprecedented – long term – disregard for our institutions.