Month: June 2020

This past week, I watched a preliminary hearing (PH) on WebEx. It was painful. The defendant was confined, charged with being a felon in possession of a firearm. He was also being held on a federal gun charge from the same incident. The Assistant Circuit Attorney, defense lawyer (Taaffe), and police officer witness were in the judge’s WebEx “room”; the defendant was on a different video feed from the Justice Center. Putting aside the pointlessness of the hearing itself (did I mention the defendant has a federal case?), and its waste of the courts’ limited resources (let’s do PHs on cases where it matters), what I saw was an example of form over substance.

The defendant did get a PH. It was a logistical success. Yet, the conditions imposed by the video technology made it impossible for the defendant to get a fair hearing. Did I mention that someone (I’m assuming it was one of the other attorneys in the judge’s WebEx room awaiting their case to be called) flushed a toilet during the witness’ questioning? And I don’t think that was inadvertent but meant as commentary. (And, no, I wasn’t the one who flushed.)

A few of the serious problems I witnessed with the video PH are that defense counsel cannot privately consult with the defendant either before or during the hearing; the defendant cannot confront his accuser in person; witnesses cannot be shown or handed exhibits; a witness’ demeanor, body-language, and credibility much more difficult to assess; communication is difficult (for example, anytime someone makes a noise, the video switches to them – so a cough interrupts the proceedings); identification of the accused becomes a show-up; and what are supposed to be proceedings that are open to the public (transparency is essential to ensuring justice) are instead done, essentially, behind closed doors. Imagine how dehumanizing this whole experience is for a confined, accused person sitting alone in a cell, looking at a screen, and watching the show unfold. It’s Kafkaesque.

As I watched this preliminary hearing I couldn’t help thinking about how people around the world are protesting because they feel that disadvantaged persons are being mistreated by “the system” — that they are marginalized, disregarded, and denied human dignity. And I wondered if I was alone in thinking that the conditions under which this hearing was held were the very sort of thing being protested.

This PH was, as I said, painful to watch. It was painful because the substance behind the proceedings — a genuine concern for preserving the rights of the accused — was lacking. The court participants went through the motions, and had the hearing. They moved the case along. The mechanism of the PH functioned; the substance of the PH, its real purpose of providing an accused with a fair hearing to determine probable cause, however, did not seem to be a concern.

Taaffe realized how bad it was and cut off his questioning of the police officer after just two questions. Later he vowed to me that he was never doing another substantive hearing by video.

Olufunmike (Fumi) Owoso is leaving the CAO at the end of next week to take a position as an Assistant Prosecuting Attorney with the Boone County Prosecuting Attorney’s Office.

I wish you Godspeed, Fumi.

And, the 22nd Judicial Circuit is now at Phase 1 1/2. The Civil Courts Building is at Phase 1 (because a positive COVID-19 test by someone who works in the building) and at Phase 2 in the Carnahan Court House.

Yesterday, at almost 4:00 p.m. Judge Burlison ordered the 22nd Judicial Circuit to close today to commemorate the Juneteenth holiday.

There is a new case of COVID -19 reported in the Civil Courts Building. Thus, the two jury trials scheduled for June 22nd, and the others scheduled for June 29th, will be canceled. We are back to Phase 0!

https://www.stltoday.com/lifestyles/health-med-fit/coronavirus/positive-covid-19-test-of-st-louis-courthouse-employee-delays-jury-trials-reopening-date/article_b3615ddb-9c01-50b8-9cb5-d6e8f33ba2db.html

This reminds me of playing the board game “Sorry” but with jury trials!

The Missouri Supreme Court has provided us with a new order explaining how jury trials will be reintroduced during the pandemic.

https://www.courts.mo.gov/page.jsp?id=159265

This new Supreme Court order builds on its previous orders which adopted a 4-phase reopening plan. It outlines the steps that local courts need to take to ensure the health and safety of prospective jurors, court personnel, and trial participants.

Interestingly, the Supreme Court indicates that “[a]bsent exigent circumstances, jury proceedings are not anticipated prior to a court’s implementation of Phase Three.” In other words, they expect jury trials not to begin in a jurisdiction until it is more or less recovered from the pandemic. The City, as I previously wrote, is presently partly in Phase 1 (the Civil Courts Building) and partly in Phase 0 (the Carnahan Building). Yet, my understanding is that it is the 22nd Judicial Circuit’s intention to conduct a single jury trial during the week of June 22nd!

More strangely still, Robert Taaffe received an email from Judge Stovall-Reid indicating that because there will be available jurors during the week of June 22nd, he too should be ready to begin trial on his case, which was previously set for trial.

What are they thinking? Are they thinking?

Taaffe observed that the City isn’t even having in-court proceedings at this point and asked rhetorically how can they expect to do a jury trial in less than two weeks.

Besides a whole host of logistical problems associated with jury selection (how do you move jurors in the elevators, make bathrooms available to large numbers of people, etc.), I think there are serious problems with the parties getting a fair trial — in fact, I think any lawyer that would agree to trial under these conditions is simply incompetent. And if forced to go to trial, I think a lawyer for either side would be able to make some significant constitutional challenges to the whole process.

I understand that there are individuals who are confined and they have a right to a speedy jury trial — that describes many of my clients. But I want them to have a fair trial. I have a question for the judges: would you want your son or daughter facing prison to go to trial under these conditions? If your son or daughter had been murdered and the accused was going to trial, would you want the trial to proceed under these conditions? I guess as long as it’s someone else . . . .

This week Presiding Judge Burlison sort of ordered the 22nd Judicial Circuit to Phase 1 of the Missouri Supreme Court’s 4-phase plan to reopen the courts. I say “sort of” because he only ordered the Civil Courts Building and the Juvenile Courts Building to Phase 1 — leaving the Carnahan Court Building at Phase 0.

https://www.courts.mo.gov/file.jsp?id=158653

The rationale for this, I believe, is because a deputy sheriff who works in the Carnahan Building has tested positive for the COVID-19 virus, so under the Supreme Court order, that courthouse can’t move to Phase 1.

My confusion is because it makes no sense to me to move the Civil Court Building to Phase 1 when the building across the street is at Phase 0. While the deputy with COVID-19 did work in the Carnahan Court Building, there are plenty of people who move between the buildings regularly, from other deputies, to clerks, to judges, etc. The virus can easily move between buildings.

It seems to me that there is a push within the 22nd Judicial Circuit to open and to have jury trials resume as quickly as they can — an attitude that I don’t see in St. Louis County. Perhaps this is due to the different temperaments of the respective presiding judges, perhaps it is due to the input these presiding judges are getting from the other judges in their circuit. I don’t know.

What does seem clear to me, however, is that we — the City and County — are the state’s hot spot for COVID-19. As such, I would think it sensible for our courts to reflect that fact. We should be the most careful with opening things up.

As I indicated in another post, no criminal defense attorney that I’ve spoken with, not even Robert Taaffe, who is in serious trial withdrawal, believes it is a good time for cases to go to trial. If forced out to trial, I believe there are numerous constitutional objections that are going to be raised by savvy defense counsel, as well as a host of practical problems the judges haven’t even considered (like procuring witnesses to testify). Moreover, from hearing Circuit Attorney Kim Gardner at the en banc meeting, it appears that she will oppose having her employees put at risk by returning to the court house too soon. It may be monumental, but it is one of the few times I’ve ever agreed with Ms. Gardner.

It seems the only persons who want the City to open and to begin jury trials are the judges — and not the actual participants in the trials!

Of course, when the second wave hits . . . .