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From the Front Porch

From the Front Porch: Be a Participant and Not a Spectator

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As I write this column, the number of coronavirus cases is on the rise in Texas. Some hospitals are nearing capacity and health care resources are being stretched thin. To our colleagues and their families in some of the hardest hit areas of Texas, you are in our thoughts and prayers and we stand ready to help. We miss the courtroom and socializing with our colleagues. We are tired of wearing a mask and talking thru plexi-glass.  Zoom has been a lifesaver, but we are now Zoomed out. As cases rise, we may have to deal with another statewide shutdown in some form. Our anxiety has not subsided, as we just do not know what the future holds for us or what practicing in the courtroom will look like in six months. This uncertainty is nerve-racking and stressful and continues to take a toll on our professional and personal lives.

There is good news, as there may be a vaccine available soon. Hopefully, we can get back to normal sooner rather than later. In the meantime, what can we do to get our practice back in order? I will give you my thoughts on that question next month.

On November 11, 2020, the Texas Supreme Court ordered that no in-person jury trials could be held prior to February 1, 2021, extending the previous deadline of December 1, 2020. The exception continues to be that a judge can seek to have an in-person jury trial by submitting their operating plan to the local administrative district judge for that county and the regional presiding judge for approval. Specifically, there have been some judges in rural areas throughout the State that have obtained this approval and conducted in-person jury trials. My understanding is that jury selection was held at large venues and not at the courthouse, with restrictions in place for social distancing, and the wearing of a face shield or mask, etc. While I have not been personally involved in any of those jury trials, I believe the success of those proceedings has been mixed. I suspect that this perception of success is likely based upon your role in the proceedings. I do believe the courts and the Office of Court Administration should be applauded for their efforts to address the problems presented by the pandemic, but we all need to be mindful of the fact that there continues to be real health concerns and risks which must be safeguarded and taken into account when making these decisions.

It appears that judges and prosecutors are having conversations on how to resume in-person proceedings at the courthouse. I do not believe that local criminal defense attorneys have been included in those conversations, and this concerns me as it should all of us. We are required to be a zealous advocate, but how can we do that when we have serious concerns of the health risks that would necessarily exist during a live jury trial proceeding. Now, how do we, as rural criminal defense attorneys, inject ourselves into that conversation? While we may be friends with the judges and prosecutors in our rural areas, our duty is to our clients, and keeping them and ourselves safe for the sake of our families and loved ones. Our health and safety concerns must be part of that conversation. In some of the surrounding counties that I practice in we have received information that there have been positive Covid-19 test results in several of the county courthouses. In rural areas this can lead to serious concerns because the local county courthouse is not only the hub of all legal matters, but a centralized point of contact for all county sponsored services. That is why it is important to make calls to the judges and prosecutors and invite ourselves into that conversation for developing a safe return plan to the courtroom. Staying in touch with our local community leaders and courthouse personnel is critical to us keeping ourselves safe and healthy. It has been over eight months since the pandemic creeped into my community, and it is easy to slip into a routine of self-isolation and start binge watching on Netflix. In reflecting back on the last eight months, I know I can do better in making sure my clients, friends, and colleagues are doing well and staying safe.

A friend of mine had concerns about his and his client’s safety and health with regards to a scheduled November jury trial setting. He utilized TCDLA’s resources and successfully argued for and had his request for a continuance granted. He may have to file it again as this problem is not going away anytime soon. This is a situation many of us are having to confront as the pandemic rages. While this is not an easy conversation to have with the court, it is necessary. When pressing this issue with the court, make sure your client agrees with you regarding the continuance, and they are aware that they are likely waiving a speedy trial complaint. My suspicions are that some of the courts seeking permission to proceed with a jury trial at this time involve cases where the client has demanded their right to a speedy trial.

Practicing law in a rural area during this pandemic has led me to rethink my practice and I have some thoughts to share with you:

  1. Remember where you come from;
  2. Know where you are going;
  3. Check in on friends and colleagues;
  4. Stay in regular contact with your clients;
  5. Remain accessible via Zoom, by telephone or in-person;
  6. Stay in regular contact with your local judges, prosecutors, court clerks and personnel;
  7. Protect your client;
  8. Protect your family;
  9. Remember you cannot protect anyone if you do not protect yourself; and
  10. Be thankful for what you have and do not obsess about the rest.

The Rural Practice Committee continues to meet monthly. We are developing helpful hints and a checklist for use when we return to the courtroom. This information will be posted on the TCDLA Rural Practice list serve. Each member on this committee is dedicated to making themselves available to assist you and address any of your concerns. If something unusual or exciting happens in your neck of the woods, please let us know how we can help.

Lastly, I take my hat off to all of us that have endured the hardships of this pandemic and continue to advocate on behalf of the accused during these trying times. We have continued, unphased and undaunted, despite impossible circumstances and a myriad of the Governor’s executive and emergency orders, to protect and preserve our client’s rights. Stay strong and vigilant. Remember TCDLA has your back, from west Texas to east Texas and all parts in between. We are TCDLA strong.

From the Front Porch: An Introduction to the Rural Practice Committee

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Hopefully, this will be the first of many articles during which we will explore the differences and challenges faced by the criminal defense attorney in a predominately rural area. I know that many of us have handled cases in rural areas throughout the State as part of our practice, and we realize there are some distinct differences which exist between representing the citizen accused in a rural versus urban environment. Those differences can be seen in how cases are docketed, pre-trial hearings are held, and ultimately, the type of jury pool you encounter.

As we begin to adapt to this ever-changing landscape of criminal defense work during the COVID-19 pandemic, it is apparent that many rural areas are much closer to attempting to get back to business as usual. This is partly because the positivity rate has been decreasing in smaller counties, and the courts are ready to get back to conducting jury trials. However, it is also because of the lack of infrastructure, where smaller county jails are near or at capacity, and their respective criminal dockets and backlog of jury trial settings have exponentially increased since March of this year. It is like that old pressure cooker your grandma used to use – you can hear the pot rattling and the whistle blowing, but we cannot quite take it off the stove yet. We don’t know what our jury trial experience will resemble when we get back to the courtroom, but it is likely that many of our brothers and sisters in rural areas will begin to understand how the ongoing pandemic will impact that experience before some of us handling cases in cities such as Houston, Dallas, Fort Worth, San Antonio, or Austin.

The bulk of my practice surrounds counties in and around the Texas Hill Country, and I rarely handle cases in Bexar or Travis counties. From my limited perspective, I have heard from several criminal defense practitioners who are anxious to get back to the courtroom so long as it is safe and we have an established set of procedures and rules that everyone must follow. I can’t assume that is the perspective of all of our rural members throughout the state, but if I were a betting man, I would hedge my bets that we need to brace ourselves for a future of conducting jury trials during this pandemic. Please understand, I am not endorsing the idea that we must get back to the courtroom and jury trials this week or next, but I do believe it is a situation that over the next couple of months will require us to hone our trial skills and find a way to adapt when we are required to get back into the courtroom. It has become clear that commencing jury trials at least by December 1, 2020, will become the norm with or without a vaccine, unless God forbid, there is another huge spike in the COVID-19 positivity rate which requires another shutdown. Keep in mind that a small county jail can only hold so many people before they start bursting at the seams, and much like the pressure cooker, the only way to diffuse that pressure is take it off the stove. Like it or not, this is the situation that many of us may find ourselves in as soon as December 1, 2020.

As the co-chair of the Rural Practice Committee, we are working on organizing our thoughts and resources on this situation and preparing for the circumstances when we will have to start returning to trial. Within the next month, we should all have access to all the county plans for returning to jury trials as approved by each of the respective administrative regional judges throughout the state. The COVID-19 Response Task Force has come up with a checklist of procedural requirements and safeguards for returning to the courtroom for purposes of trial. I would encourage all our members to access the checklist via our website and use it, as necessary. 

The Rural Practice Committee hopes to add to this functional checklist, taking into consideration some of the specific problems sometimes encountered by the rural practitioner. As such, if you are handling or have handled a case in a rural area and have a particular question or believe there is an issue of particular concern which needs to be addressed moving forward, please contact me or John Hunter Smith to let us know how we can help.

Many of us have probably picked a jury in a small town in the local Civic Hall, American Legion Hall or other county wide venue facility designed to hold hundreds of people versus a hundred people. However, we have never had to do that wearing a mask and face shield with each juror socially distancing 6 feet apart. We are social creatures, and this new age is going to present some challenges, but we all must stay safe and healthy or we cannot help anyone, let alone our clients.

In small towns social distancing requirements are often difficult and not well received by our neighbors which makes jury selection even more difficult and time consuming. I believe if it was going to take you a half-day to pick a jury prior to the pandemic, it will now take a full day. Also, I have not yet seen a plan for a rural area, as of writing this column, but how is a shuffle going to work, and where is the court going to park a hundred or two hundred folks while they work that out and then re-seat the panel? These are just some of the issues we have been discussing on the Rural Practice Committee, and we would like your input and any information pertinent to this situation to help us develop some local resources for the benefit of all of our members.

As an example, today as I was writing this column, I received an email from one of the Rural Practice Committee Members asking for assistance for a fellow member because a judge in a small county was picking a jury and sent out 200 summons – 35 people showed up and 6 were excused. The Court decided it would just round up 30 more jurors for the panel and start a general voir dire that afternoon. Within a few minutes of sending out a request for help, Allison Clayton, one of the current co-chairs of the Covid-19 Response Task Force, responded by sending out a motion to the challenge of the array. It is this type of support and development of resources that TCDLA hopes to continue to refine over the course of the next couple of months.

We are here for our members, and we need your input and assistance so that we can be proactive and responsive to our members and their needs regardless of where they practice. Whether you are in Alpine or Austin, we are here for you. Please know that it is never just you against the government because we can bring to bear the collective voice, experience, and knowledge of over 3,200 members statewide. As we navigate these uncertain times, please send us any questions you have or issues that you have encountered practicing in a rural area. Do not assume someone else has already contacted us or experienced the same thing. We want to help if we can, and there is no such thing as a bad question. We are in this together and remain TCDLA Strong.

John Hunter Smith Co-Chair of the Rural Practice Committee can be contacted at .

Clay Steadman Co-Chair of the Rural Practice Committee can be contacted at .

Melissa Schank can be contacted at .