Lawyers say delayed trials are ‘uncharted territory’ that could trigger long wave of appeals

A defendant in a criminal trial has a constitutional right to a speedy trial, but three veteran Alameda County defense attorneys said this week that they’re concerned that jury trials may be on hold for a long time in the wake of the COVID-19 coronavirus pandemic.

California Chief Justice Tani Cantil-Sakauye on March 23 ordered that all jury trials in state superior courts be suspended for 60 days because courts are not able to operate as usual while observing social-distancing and other health directives.

The defense lawyers said they understand the concern about protecting public health, but warned if jury trials are delayed indefinitely, defendants’ rights will be harmed and they will ask appellate courts to step in.

Attorney Chris Lamiero, a former Alameda County prosecutor, said:

“Eventually we’re going to see serious conflict between the concerns related to the virus and constitutional speedy trial rights. I expect years worth of appellate litigation to follow this crisis.”

Defense lawyer Ernie Castillo said:

“We’re in uncharted territory.”

Castillo said because he doesn’t know when jury trials will start up again, he believes that most potential jurors will be afraid to come to court for the foreseeable future if they think it’s unsafe.

Castillo said:

“What juror will want to be in a courtroom? There’s so much fear and concern.”

He said the prospect of long delays before trials resume “is a frightening idea for defendants” because in the meantime they’re stuck in Santa Rita Jail in Dublin, where 35 inmates have tested positive for COVID-19 so far, although 26 of them have completely recovered.

Castillo said his clients who face serious charges such as murder “feel like they are being left to rot in jail and the system is not caring about them.”

Explaining that defendants are “frightened” about having to remain in custody, he said:

“These are the inmates with the most extreme (serious) cases but they’re also human beings with families and loved ones.”

Lamiero said he also expects a long delay before jury trials can resume again because it will be difficult for judges to compel prospective jurors to come to court, but at the same time he said he hopes the courts don’t try to conduct jury trials via video technology.

He said:

“There are a lot of things that can be done effectively in court with video technology (such as short procedural hearings) but jury trials are not one of them.”

Lamiero said if jurors are watching from home and aren’t in the courtroom with defendants and lawyers, they will miss the dynamics in the courtroom and will have a harder time assessing the credibility of witnesses.

He said:

“A trial doesn’t translate through a screen like being there live and in person because it’s two-dimensional and will become antiseptic and impersonal. It’s better when everybody is in the courtroom on a collective journey to get the facts.”

Castillo said he also doesn’t like the idea of having video trials, saying:

“A trial takes on a life of its own and jurors need to be in court to see the dynamics and notice the character of witnesses.”

Defense attorney Darryl Stallworth, another former Alameda County prosecutor, said trials with everyone present in court are important because “defense lawyers need to have the ability to exchange information with their clients” as trials progress and jurors need to be up close to see lawyers examine witnesses.

Stallworth said he agrees that because of the difficulty in balancing the conflict between trying to protect the public from the coronavirus and maintaining defendants’ rights to a speedy trial:

“These issues will be litigated in the months and years to come.”