Tales of a Defense Attorney during COVID-19

January 2022 began with multiple Colorado judicial districts suspending jury trials—again—due to the wildfire-like spread of COVID-19, and specifically, the highly contagious omicron variant. I have a trial set for the end of the month that is now going to be continued. This is our seventh pandemic continuance.


While we shut down and wait to resolve cases and for courts to sort out how to safely resume having jury trials, poor people sit in jails. Jails with near constant outbreaks, quarantines, and lockdowns. Jails that are COVID petri dishes with people who are getting sick and dying. My now-continued trial is a 2019 case, which means my client has now been sitting in jail for almost two and a half years and is still waiting for his day in court.



But this situation is hardly unique, and COVID impacts are not limited to adults. Kids in locked down detention centers are unable to have visitors. No visits and hugs from parents or siblings, and often throughout the pandemic, not even professional visitors. As an attorney, I am no substitute for family. But I’m someone on their side and a friendly face for them to see. Visits get them off their pod and give them a break from the stressful social environment they’re in. During COVID, there have been months-long periods of time during which these kids haven’t even gotten that.


In both juvenile and adult facilities, incarcerated people end up isolated because of COVID, sometimes being put on “23’s” – twenty-three hours in their rooms, one out. It amounts to solitary confinement, which has been deemed torture by researchers due to the extreme negative impact it can have on a person’s physical, emotional, and psychological health.


Remember, we’re talking about jails where most people haven’t even been convicted of anything. Rather, they sit awaiting their trial, often because they are too poor to bond out like their wealthier (and whiter) counterparts.


Lockdowns and quarantines take away our ability as defense attorneys to be effective in our representation. If we can’t meet with our clients, we can’t get to know them and their stories – beyond just the bare facts in the case. Sure, we can arrange video visits at some facilities, but have you ever tried to go over thousands of pages of discovery and hours of video over Zoom? We can’t get team members into facilities to do certain types of evaluations, some of which can take hours and need to be done in person. We can’t send in investigators or social workers to meet with our clients.


Last spring, our Colorado Supreme Court changed the rules of criminal procedure to allow courts to declare a mistrial and tolling the speedy trial period for three months if they can’t safely assemble a jury pool due to a health crisis. This can be done over the objection of defendants, who are stuck waiting… and waiting... The first trial I did last spring when courts opened again was a 2018 case that had been continued ten times before we finally got it into a courtroom.



The right to a speedy trial is one of the most well-established rights in our legal system—set forth in the Sixth Amendment and made stronger by State statutes and case law. Our legal system places great importance on finality and resolution of the proceedings within it. In the time of COVID, that right has all but disappeared. Over the past two years, I’ve written dozens of motions for dismissal for violation of the right to speedy trial on behalf of my clients, who have received no relief from the courts. Our Court of Appeals and Supreme Court have been deaf to the pleas of people whose right to a speedy trial has been repeatedly violated.


The U.S. Supreme Court, in Roman Catholic Diocese of Brooklyn v. Cuomo, last year unequivocally held that even in a pandemic, the Constitution cannot be put away and forgotten.[1] In his concurring opinion in that case, Justice Gorsuch stated, “[We should not] cut[] the Constitution loose during the pandemic” and that “we may not shelter in place when the Constitution is under attack. Things never go well when we do.” The case was brought by the Diocese challenging NY Governor Cuomo’s executive order limiting the number of people who could gather in churches alleging it violated its First Amendment rights. The Court agreed and ruled in its favor. Colorado has apparently determined that we can, in fact, put the constitution away when it comes to the rights contained in the Sixth Amendment.


But it is not just the courts that are causing this problem. The stubborn refusal of too many people to mask up or get vaccinated is infuriating to me. They cite a non-existent constitutional right to infect their communities with what has become the most contagious virus in human history, with their deliberate actions and inactions are keeping the COVID pandemic spreading strong. People I represent are being denied of their actual constitutional rights to speedy trial, effective assistance of counsel, and to have finality in their cases simply because others in our community refuse to take the most basic steps of modifying their behavior surrounding large crowds, mask wearing, and getting vaccinated. These people crow on and on about their nonexistent right to not cover their faces, refusing to see how their actions are harming everyone else around them.


I will never NOT be irate with COVID deniers and anti-vaxxers. I will forever be furious with this virus becoming political to the point that people are willing to risk killing the people around them because of lies and conspiracy. I will never understand how some can be so misled and at the same time so unconcerned about the wellbeing—and rights—of those around them.


And because of their unyieldingly and immorally selfish actions, the COVID-19 pandemic continues.


So people will continue to sit in jail for inhumanely long periods of time in deplorable conditions that put their own lives at risk, watching their opportunity to receive justice be delayed over and over again. And you know what they say about justice delayed.


[1]Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 6948354 (2020) (per curiam).


 

Cassy received her B.S. in Accounting from Oklahoma State University and her J.D. from the University of Colorado. She practices criminal defense along the front range, focusing on juvenile cases and certain post-conviction proceedings. Cassy serves as court-appointed counsel through the Office of Alternate Defense Counsel and provides legal representation to private clients on low pay/slow pay/sliding scale basis.



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