As coronavirus cases continue to surge nationwide and across the Washington region, the Maryland Judiciary announced last week that it will reimpose certain restrictions on court operations — shifting some proceedings back online and halting jury trials through the end of the year.
Now prosecutors, defense attorneys and advocates are concerned about how the setback could further slow the criminal legal system.
The reversion to Phase 3, which is outlined in five administrative orders from Maryland Court of Appeals Chief Judge Mary Ellen Barbera, will go into effect Monday and last through Dec. 31. Under the new guidelines, grand juries can continue at the discretion of administrative judges, and new grand juries can be empaneled.
Jury trials that were set to begin in that time period will be rescheduled, the orders say. Trials that have already empaneled a jury may continue.
All other jury trials are expected to resume Jan. 4.
“The health and safety of the public, judges, and Judiciary staff remains a top priority, and we will continue to monitor the COVID-19 heath emergency and adjust Judiciary operations as necessary,” Barbera said in a news release. “We will keep the public apprised of any changes in operations and ensure that as many of the core functions of the Judiciary will remain available to the extent the emergency conditions allow.”
Earlier last week, federal courts in Maryland also suspended in-person proceedings, closing courthouses to the public.
The head public defenders in Prince George’s and Montgomery counties said they support the chief judge’s decision to return to Phase 3 for health and safety reasons. But they also expressed disappointment that jury trials will again be suspended.
Allen Wolf, the head public defender in Montgomery County, said some jury trials were completed in circuit court before the judge’s new orders. Two of their clients, who had been awaiting trial in jail during the pandemic, were acquitted.
Under the Hicks rule in Maryland, unless a judge grants a postponement, a criminal trial in a circuit court must begin within 180 days of the defendant’s first appearance in court or when the defense counsel is assigned. But during the pandemic, it has been nearly impossible to abide by that timeline, said Keith Lotridge, the top public defender in Prince George’s County.
“We’re really caught between a rock and a hard place,” Lotridge said, adding that keeping court staff members, attorneys and the public safe is important. “The flip side of that is everyone who is in jail, and the pressure to make sure they either get a fair and speedy trial or they get out of jail.”
Three jury trials were conducted in Prince George’s during the brief period the state had entered Phase 5 of reopening, according to the state’s attorney’s office. The return to restricted guidelines could affect more than 200 cases pending in the circuit court.
Lotridge said his office will be asking the court on a case-by-case basis to consider pretrial release and other avenues to keep people out of jail — especially as the incarcerated population in Prince George’s has climbed back to pre-pandemic numbers.
When Prince George’s County State’s Attorney Aisha Braveboy launched her “Operation Safe Release” initiative on March 1, at the beginning of the pandemic, the jail population was 718. By mid-April, it had been reduced by 150 through a collaboration with the Office of the Public Defender and the judiciary to review each case and discuss pretrial release options.
But as of Oct. 15, the average daily jail population had risen again to about 725 people, according to data from Braveboy’s office. That number is less than half the total capacity of the jail.
About 91 percent of those incarcerated at the county detention center are being held on charges related to violent offenses, including murder, armed robbery, assault or rape, the state’s attorney’s office said. The remainder of those incarcerated people have been charged with gun-related offenses, the office said.
In a statement, Braveboy said that “Operation Safe Release” is still in effect and that her office has taken “proactive” steps to try to reduce the jail population, including filing joint motions for release, reviewing the jail list weekly and recommending early release for those approaching the end of their sentences.
Her top priority, she said, “will always be the safety of our victims and our community.” Her office will not recommend the release of anyone charged with a violent offense, she said.
“Under no circumstance will 100 percent of the jail population be released,” Braveboy said in her statement.
Montgomery County State’s Attorney John McCarthy said concerns that certain defendants might have to stay in jail longer awaiting trials should be seen in the context of how well the county jail facilities have done keeping the virus away. The daily counts he receives have largely showed no cases among inmates or correctional officers over the past three months.
“It’s really almost miraculous how well they’ve done,” he said.
But just recently, he said, he received a report of one incarcerated person testing positive and two employees testing positive.
Last week, three employees in the state’s attorney’s office also tested positive, McCarthy said. All are doing well, he said.
Montgomery County Administrative Judge Robert Greenberg said the county’s circuit courthouse conducted approximately 15 jury trials for criminal and civil matters after going back to in-person proceedings in early October.
“It went really well,” he said, with jurors, attorneys and other parties were spaced apart. “I’m not aware of any covid illnesses from the trials.”
The judge said he agreed with the decision to move back to Phase 3, given the troubling numbers of infections and positivity rates locally and across the state.
“It’s all around us,” he said. “And it’s troubling.”
