It has been nearly a year since Texas and the nation’s courts began scaling back in-person operations due to the pandemic. It has been well more than a year since the pandemic became a major problem. This is but an example of a shortcoming with large governmental systems: They often react late to a crisis.
As of February 2021, I would be less than candid if I were to tell you that state and federal jury trials are unsafe and pose an unacceptably high risk of viral transmission. But it would be equally misleading to state that trials and other in-person court proceedings are safe. The truth is, no one really knows.
Here is another stubborn truth I’ve discovered during the past year through consultation with administrators, judges, defense lawyers, prosecutors, and even some scientists: Many of the important stakeholders in the criminal justice system have strong opinions about the “best” path forward and there is little we criminal practitioners — the ones on the front lines of the legal system due to frequent contact with inmates, clients, courthouse personnel, and many others — can do to change their minds.
The time has come to paddle our own boat.
If as a TCDLA member you believe it is unsafe to participate in a court proceeding or that your client’s constitutional rights are not adequately protected, this organization has your back. We have a COVID-19 Committee and a Strike Force to help you with legal and strategic assistance when a judge is dragging you and your client into trial against your will. If you believe there is no reason to postpone a court proceeding and your client has demanded a speedy trial, the same TCDLA people will assist you with the full force and intelligence we’ve assembled. You can reach me personally by text or email 24/7 and I will work for you as well.
Many among us believe that in-person court proceedings are unwise and possibly unsafe until vaccinations are widely distributed and the population has achieved herd immunity. That’s a reasonable position to take. As a single parent of a small child, I will not permit a judge to bully me into something I don’t think is safe and I wouldn’t ask any of our members to allow it, either.
It is not as though the criminal defense bar isn’t trying to improve the situation. In December I sent a letter on behalf of TCDLA to Governor Greg Abbott and vaccine administrators. We asked them to prioritize criminal practitioners in the vaccination pipeline. Not jump ahead of frontline healthcare workers, nursing home residents, medically vulnerable people, and the elderly. Just put us into a group of essential workers with vaccination priority. While that may indeed happen, the Governor’s Office has yet to respond.
During a State Bar Task Force Zoom meeting on February 8, 2021, I suggested that trial judges give priority to defendants who affirmatively demand a speedy trial, so we could possibly avoid situations in which attorneys, clients, and even some prosecutors are dragged into trial against their will. Several of the judges in the meeting (including two regional presiding judges) made it clear it was a hard no. For judges who are bent on going to trial during the pandemic, it’s not about incrementally shrinking trial dockets or safeguarding the accused’s constitutional right to a speedy trial. It’s about running their courtrooms however they see fit.
Worth noting, the vast majority of judges I’ve encountered in my small pocket of the universe (mostly Greater Houston) are doing the right thing and waiting until conditions are safer and not pushing cases to trial unless all parties are willing. When you see a judge doing the right thing, be sure to thank him or her. They’re under a lot of pressure, too.
Trials are about to ramp up, whether it’s the right path forward or not. My advice to colleagues is to follow your conscience. No matter which path you choose, TCDLA will make sure you do not have to walk it alone.