Pandemic, social distancing restrictions paralyze Alabama’s criminal justice system

(AP Photo/Brennan Linsley, File)
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MONTGOMERY, Ala. (WSFA) -- The pandemic continues to pose a threat to Alabama's criminal justice system. It's largely been at a standstill for around eight weeks and there’s no clear path to get it back on track.

Case Backlog
“It’s a system that is not really set up to deal with what we’ve got to deal with,” stated CJ Robinson, Chief Deputy District Attorney in the 19th Judicial Circuit. “We are really just trying to figure it out on the fly.”

The 19th Circuit covers Elmore, Autauga, and Chilton counties. Eight trial terms have been missed since the in-person court proceedings were postponed in March.

Robinson’s office is working to reconvene grand juries in each of the counties to catch up before their term expires, but they can’t impanel a new grand jury until the fall. Both Autauga and Chilton counties have two grand jury sessions a year, which will be primarily unaffected by the shutdown. Elmore County impanels a grand jury each quarter, and the cases are already piling up.

“Elmore County is where we’re going to have a problem because I can’t make up the grand jury that will be coming in July,” stated Robinson. “I can’t make up the grand jury that we would have in October, if we’re 600 cases behind we’re just going to have to chip away at it.”

The 15th Judicial Circuit covering Montgomery County impanels a grand jury each month which considers upwards of 400 cases. So far the office has missed two grand jury terms while the courts have been under a special Supreme Court order.

“There’s going to be about 2000 cases that we’re going to be behind, and cases keep coming in,” said Montgomery County District Attorney Daryl Bailey. “Cases are not going to stop coming in and unfortunately that’s going to create even bigger backlogs.”

“The last grand jury in March reported out a number of indictments. Due to the social distancing orders it’s been a challenge to notify those who were indicted. We’re still having problems getting those indictments served,” Bailey said.

When the members of the grand jury return to court in the 19th Circuit, proceedings will look much different. Robinson says they will likely have the grand jury in a large courtroom to maintain social distancing and eliminate unnecessary contact with witnesses and their attorneys.

“There may be 100 witnesses that come into a grand jury so we’re going to utilize webcams and the witnesses can come with one attorney to a location, testify, via video, and that video will be projected onto a screen for the grand jury,” Robinson explained. “We’ll have another attorney in there with the grand jury who can relay questions or communicate.”

Social Distancing
Social distancing and the lack of space is the key challenge plaguing the court system. Prior to the pandemic most circuits had lengthy dockets and some ushered hundreds of people through the courthouse daily. The remedy to significant weather-related backlogs required long days in court with most courtrooms packed to capacity. That is no longer an option.

“We’ve done things that we’ve never done before such as video conferencing,” stated Bailey. "We’ve got video conferencing in the jail and set up with attorneys. We’re still trying to do court business.”

The Alabama Supreme Court's latest order allowed circuits to resume in-person hearings this week. In Montgomery, Presiding Judge Johnny Hardwick chose to prohibit in-person hearings until further notice due to an increase in local COVID-19 cases.

Robinson said they’ve held limited hearings in Elmore and Autauga counties outside this week as a trial. They expected to resume in-person hearings next week.

“I don’t want anybody to get sick and I don’t want to get sick either,” said Robinson. “But I just don’t know how much longer we can sustain this pace.”

Both circuits are considering additional options to adjudicate cases involving lower-level offenses through trial diversion programs and expanded options to plea to information and avoid putting the case before a grand jury.

“It gets to a point to where you have to balance health concerns versus the message you’re sending that as long as you don’t do something too bad you will get right back out,” stated Robinson. “Unfortunately, we’re not in a hand holding business. People commit crimes and they have be held accountable; some people need to go to rehab, some people need drug court, but some people need to go to jail and some people need to go to prison. And they don’t always go willingly.”

Most judicial circuits across the state postponed in-person hearings and will reassess the threat of the virus in June.

Jury Selection
The first jury trial term for the state begins September 14. There's not a circuit in WSFA’s viewing area with a large enough courthouse to accommodate a safe social distance for dozens if not hundreds of potential jurors summoned for multiple trials.

“If we have a capital trial and bring in 500 [potential jurors], I don’t know where you put these people,” said Robinson.

While the option to move to larger space is attractive, some attorneys argue the property owners would incur significant liability.

“The mass capacity of our largest courtroom, to my knowledge is 33 people in our three counties,” Robinson explained. “When you have 40 potential jurors on a panel, we can’t even get an entire panel in the courtroom to strike the jury. Then you start adding the judge and the court reporter, the attorneys, victims have a right to be present, it keeps expanding out when you talk about who has to be in the courtroom.”

There's a concern that the second wave of the pandemic may further stifle the jury trials that are scheduled for mid-September.

“Even though we have the difficult circumstances going on, there’s a lot of constitutional rights that we can’t get around,” said Bailey. “The defendant has a right to be present at the proceedings, they have a right to be present when a witness is testifying.”

WSFA 12 News reached out to the Alabama Criminal Defense Lawyers Association to determine how the pandemic is impacting criminal defendants. We did not receive a response.

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