S--t Public Defenders See: The Great Covid-19 Jury Charade
In response to the pandemic, one New Mexico County convened grand juries to
indict, but eliminated preliminary hearings and jury trials. The result?
More indictments, fewer speedy trial rights
Matt Taibbi
Feb 16
When the world ground to a halt a year ago thanks to Covid-19, Americans
quickly worried over the important questions. Will we still get to go to
basketball games? Will McDonald's only be Drive-Thru now? Do manicurists
deliver?
The parts of the country that were already out of sight to most receded
further from view. Covid-19 struck hard at the elderly in rest homes, but
the population that took perhaps the toughest hit was behind bars. By June,
the rate of infection in America's jails and prisons was seven times that of
the general population. By this month, 612,000 cases had been reported in
correctional facilities, with at least 2,700 deaths among prisoners and
corrections officials.
In news reports, we mostly read that prosecutors and corrections officials
were trying to find ways to reduce the risk of disease both in jails and in
court, another institution that traditionally required people to congregate
indoors. Many districts suspended jury trials indefinitely, a serious
problem for those awaiting trial, and one that raised a question: if
officials were too worried about the safety of jurors to schedule trials,
what did that mean for grand juries?
In other words, was the pandemic too dangerous for speedy trial rights, but
not dangerous enough to slow indictments? Were there places where jury
trials were canceled, but grand juries were not?
In some select jurisdictions across the country, the answer appeared - and
appears - to be yes.
"It highlights the way in which the pandemic is being used selectively,"
says Scott Hechinger of Zealous, a national public defender advocacy
organization. "In some places it's used to perpetuate the system, in some
places, to make it worse."
The significance of jury trials is obvious. Defendants have a right to them,
and they also have a constitutional right to a speedy trial, i.e. the
government is not allowed to charge a person and leave them under suspicion
indefinitely.
Cases must be adjudicated in a reasonable period of time. In some
jurisdictions, the satisfaction of speedy trial rights means getting a
defendant to trial within a concrete number of days, though the calculation
is often complicated (in The Divide, a trick used by New York prosecutors to
legally keep defendants in jail far beyond the supposed limits of speedy
trial rules is detailed).
During the pandemic, however, jury trials were suspended in many
jurisdictions. In some of those places, it was understood that speedy trial
rights simply had to be put on hold until officials could, as Donald Trump
would say, figure out what the hell is going on. This left a lot of people
who had not even been convicted of a crime but couldn't afford bail in a
purgatory-like state of open-ended detention.
However, official concern for jury safety seemed limited in some places to
trials. Police continued to arrest people and prosecutors continued to use
grand juries to indict.
"The speedy trial rules only worked in one direction," explains Hechinger.
"Officials basically said: because we're still arresting people at the same
rate and need to keep prosecuting them, we're just going to have jurors risk
their lives in a way we said we really cared about, in order to have them
vote on new indictments."
Grand juries are secret proceedings, usually consisting of 16 to 23 grand
jurors, whose purpose is to investigate crimes and, ultimately, decide
whether or not to indict. Every state has provisions for using grand juries,
but only about half of them do. How states and localities use grand juries
varies. In New York, for instance, grand juries have to approve all felony
indictments. In other jurisdictions, officials can choose between grand
juries and preliminary hearings to secure indictments.
The rub is that grand juries are essentially a home-court advantage for the
prosecution. The rules vary, but a brief list of some of the prosecutorial
advantages you might find include: the use of hearsay evidence, no right to
appear for defendants unless invited, no right for defendants to present
evidence on their own behalf, no judge presiding, secrecy, etc. For this
reason, the notion that a grand jury will "indict a ham sandwich" is widely
understood by prosecutors and defense counsel alike.
Conversely, preliminary hearings, which are overseen by a judge and allow
the accused to introduce evidence, are much preferred by defense counsel for
obvious reasons. However, in the jurisdictions where there is a choice
between prelims and grand juries, the District Attorney's office often has
discretion over which to use.
What has that meant during the pandemic? Anecdotally, public defenders and
advocates like Hechinger have heard many tales of officials using the
disease to tilt the field in their favor. In Oakland, the Alameda Superior
Court System is trying to use Covid-19 to institute a change rejected two
years ago following a public outcry, one that would open the jury pool for
cases involving Oakland defendants to all of Alameda County (effectively,
this would put more black defendants in front of more white jurors). In some
places, recognition by defendants that jury trials might be delayed
indefinitely is leading to more guilty pleas.
In one particular jurisdiction - New Mexico's Twelfth Judicial District, a
mostly rural area encompassing Lincoln and Otero Counties, and including the
city of Alamagordo - defendants at least for a time had the worst of all
worlds: no jury trials, no preliminary hearings, and full steam ahead for
grand jury indictments.
According to Matt Chavez, District Defender for the 12th, and Dayna Jones,
Supervising Attorney for the Alamagordo Public Defender's office, the New
Mexico Twelfth is the poster child for the dualistic approach to jury
selection. Public defenders around the country share horror stories, but
this little enclave of New Mexico manages to raise eyebrows even among those
who think they've heard everything.
"I'm not just saying this, but I don't think that anyone is dealing with it
like we are here," says Jones. "It's terrible when you talk to someone,
they're like, 'Oh my gosh, it's bad, but at least it's not like it is for
you.'"
TK talked with Chavez and Jones about their experiences. The District
Attorney's office has not yet responded to requests for comment.
________________________________________
TK: What exactly was the situation in the twelfth with jury trials and grand
juries?
Jones: Our jury trials were paused from... what was it, November until
February 8th?
Chavez: It was from March to June, and then from November to February 8th.
Jones: We've resumed now, and we're like hell on wheels doing trials. I did
two felony trials this week. Our chief judge has said we're doing trials
every single day now, to catch up, which is another completely another
problem for a different day. (laughs) Do you want to talk about attorney
burnout? I'm not sure how we're supposed to do felony trials every day for
months to catch up on the backlog.
But before that became the issue, I just found it extraordinarily
problematic and hypocritical that we were bringing people in for grand
juries while we had no jury trials. We could indict somebody, but we
couldn't acquit them. We couldn't get them in front of a jury for an
acquittal.
Also, they just stopped doing preliminary hearings, which I think are a
really valuable part of the process. So there was the health portion of it:
why are we bringing in people for grand juries when it's unnecessary? And
then there was also the due process part of it. Why are we just completely
blanket canceling these proceedings for no reason at all?
TK: So not only did they not halt grand juries, they halted preliminary
hearings?
Jones: Everything is going to grand jury. Everything. Whereas most districts
are going the opposite. Most districts stopped doing grand juries, because
you don't want to bring people into a room unless it's necessary. But our
district, the 12th, we stopped doing jury trials, and all the bind-overs
were done by grand juries.
TK: It's usually understood that prosecutors have an advantage with grand
juries, as opposed to preliminary hearings. Do you feel this was part of the
rationale?
Chavez: Yeah, definitely. Preliminary hearings are preferred, because
prelims are like a little miniature trial, and the defense side has due
process. We have the right to cross-examine witnesses. The rules of evidence
do apply to those hearings. We do get discovery disclosures, and we get to
test the prosecution's case early, and so do the prosecutors. They get to
actually test the law enforcement account of what happened, and the law
enforcement investigation.
A grand jury, as the saying goes, can indict a ham sandwich, because they're
basically secret proceedings, run by the prosecution. The grand jury is its
own constitutional animal, and even the court has limited authority to
intervene in a grand jury. But it's just tremendously easy to indict someone
through a grand jury, especially if you have like our district, a chronic
work overload crisis at the public defender's office. And so it's just an
easier path for the prosecutor to get these indictments and keep the
prosecutorial machine going.
TK: Who decides whether to go to a grand jury or to a preliminary hearing?
Chavez: It is entirely up to the prosecutor.
TK: If the advantage is so great with a grand jury, why would a prosecutor
ever choose a preliminary hearing?
Chavez: The bottom line answer is because it's a more accurate process for
examining the evidence, because both of these are probable cause hearings,
and so the prosecution is attempting to establish that there's probable
cause that this criminal offense occurred, and that the person that's being
accused is the person that allegedly perpetrated this alleged crime.
A sensible prosecutor will say, "My job is not just to win, my job is not
just to incarcerate, but it is actually to do justice." And so if law
enforcement brings me a case that's garbage, it's easier to throw out the
garbage in a prelim than in a grand jury.
Jones: A grand jury is a lot more reasonable for instance in sex cases,
where you have vulnerable victims. You don't want to put them on a stand in
a prelim, maybe that's really traumatic and unnecessary. Or, cases where you
have child victims, same exact thing. I think there's a place for the grand
jury proceeding, and that's the kind of place.
But you have an embezzlement-of-a-motor-vehicle case, that's not necessary.
You can bring that victim up, and bring the cop up, and you go through and
you find out whether or not the elements of the crime are even legitimately
there, in a prelim. And before, a lot of times, the prosecutor would be
happy to get rid of their garbage cases also, through the filter of a
prelim.
TK: Has this dynamic resulted in some people staying in jail longer,
awaiting trial longer than they normally would? Are people getting sick?
Chavez: One of the scary things is that we don't know how many people are
getting sick, being hospitalized, or dying because of these jury trials. And
I'm thinking mostly about the jurors themselves, because they go and do the
trial, a few days later they get symptoms. We don't have any contact tracing
or follow-up, and so I try to tell the judges about this. This is one of
those spooky, semi-imperceptible concerns that we try to raise with the
court. So I guess the basic answer is, we don't know.
Jones: The local newspaper, the Alamogordo Daily News*, recently did a story
that involved how we just can't even get the records from the Otero County
Jail. We're trying to find out if our clients have Covid-19 in order to get
them out, or limit our contact with them, or do whatever we need to, to
advocate for them medically, and the jail refuses to give us their records.
That reporter actually did an IPRA request [an "Inspection of Public Records
Act" request in New Mexico is similar to a FOIA request] to the jail to try
to find out how many people have been infected since they've been there, and
the jail told her three times, three times - and she actually put this in
her page - that they have no access to the records.
They don't have records of who's contracted COVID and who hasn't at the
jail, which I believe is not true. I do not believe that the jail is not
reporting positive COVID tests to the health authority that they should be.
I think they don't want to share that information. But because they don't
share that information, we can't protect ourselves. We go to the jail, we
talk to people. We're having trials right now, so it would be really nice to
know what's actually happening, but we don't. We just flat out don't.
TK: Does the 12th District have a relatively high volume of cases?
Chavez: We do more trials than Albuquerque, and we have a fraction of the
population.
TK: Is that because of a higher crime rate?
Chavez: Just an antiquated approach - where they're just going after
indictments. They don't care about treatment. The jails don't have
treatments. It's like a throwback to, I don't know, some other era. I don't
even know what era to pick.
Jones: There's a very high meth issue here. We're a very poor area, so you
get all that quality-of-life stuff that comes along with it, which is sad,
because then we have habitual offender time here, so you get picked up and
convicted of meth a few times, then all of a sudden you're looking at eight
years just in habitual offender time, just because you're an addict.
TK: And the idea is, they push as many cases as they can?
Jones: The trial I took yesterday was a fourth-degree felony. The guy had
borrowed his roommate's car. He was supposed to bring it back that night, he
didn't. The roommate told him he'd give him two hours to bring it back,
called the cops 15 minutes later. They picked up the car in like 30 minutes,
and that was it. That was the case.
So I asked the complaining victim on the stand, just because I knew they
didn't want to be there, I said, "And you didn't even want to press charges
in this case, did you?"
And he said, "No." And I said, "You didn't even want to testify?" Again,
"No." Then it was, "You don't even want to be here, but you're here because
the DA subpoenaed you, isn't that right?" "Yes."
And I mean, we won in that case, but my guy was in there for nine months.
TK: What happens to speedy trial rules during the pandemic?
Chavez: The running theory among all attorneys, all criminal defense
attorneys and prosecutors, is that during the pandemic, the Supreme Court,
or the District Court and then the court of appeals, as the argument moves
its way up, will be analyzed, and they will say, "It was the pandemic. It
was like an act of God. We're not going to say that the defendant's right to
a speedy trial was violated by the court or the prosecution, or the defense.
We're just going to say it's a wash."
So it's almost like the rules took a pause. It's not actually written
anywhere, but that's what people anticipate, because we're going to argue
this. I mean, there are cases that have been delayed an additional year,
that were already delayed a year or two, or three. So it's a little bit
complex, but it's going to be a fight.
TK: How will they sort this out?
Chavez: It's very complicated because there are a lot of cases on it, but
the presumptive trigger for speedy trial analysis is basically when the
court says, "We will presume that the defendant's right to a speedy trial
has been violated is 12 months for a simple case, 15 months for an
intermediate case, and then 18 months for a complex case." And then they
define all that stuff. They unpack it all.
TK: So there's an unspoken thought that all those analyses are going to go
out the window with this time period?
Chavez: Yes.
TK: What would you say to the argument that, "Well, all of this is
necessary, to put criminals away!" Some people will say, hey, why not indict
as many people as possible?
Chavez: We have this enormous prosecutorial punishment machine, almost like
an automated terminator machine. But they lose all the time. We really do
have way too much success than we should have at trial. The kind of
anecdotal number people throw out is that for prosecutors who take cases to
trial, they should be winning 70%, 80% of the time. But we've crunched the
numbers now for three years in a row, and we win either more than half, or
somewhere around half, of the cases that we take to trial.
So truly, these are garbage cases. And it's wasteful. The taxpayers don't
know about it. They're just kind of going about their day, living their
lives, but if they knew just the amount of waste that this style of
prosecution and law enforcement creates, I think they would be really
shocked. Especially now.
* The Alamagordo Daily News shares a legal reporter with the Las Cruces
Sun-News, which is why the screenshot indicates that the Sun-News asked for
the information. The Alamagordo paper ran the same story.