Covid-19 v. Criminal Defendants
| Jurisdiction | Kansas,United States,Federal |
| Citation | Vol. 89 No. 8 Pg. 32 |
| Pages | 32 |
| Publication year | 2020 |
November, 2020
By John Eric Rapp and Ben Bigham
The COVID-19 worldwide pandemic has altered many racers of life, and the legal community has nor been spared. To navigate this new norm, lawmakers and judges at both the federal and Kansas stare levels have had to navigate the protection of nor only public health and safety, but also our constitutional freedoms.
One of the most complex problems lawmakers must resolve is what to do about criminal defendants awaiting trial, especially when disruptions to courts standard operating procedures occur. With courts limiting public access across the United States to curb the spread of COVID-19, we need to understand and consider that decisions to resume court proceedings remotely may have unforeseen effects on criminal defendants" constitutional rights, this article aims to educate practitioners and lawmakers on the constitutional ramifications, both at the federal level and at the Kansas state level, involved with either delaying criminal jury trials altogether, or continuing them remotely.
Federal and State Law Impacted by Limiting Court Access
Some of the most fundamental rights a criminal defendant has in the United States are enumerated in the Sixth Amendment of the United States Constitution. The Sixth Amendment States:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an Impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him: to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense"[1]
The same rights enumerated in the Sixth Amendment are also protected in Kansas through its state constitution and state laws.[2] With the passage of emergency orders by the Kansas Supreme Court that have, among other things, authorized the use of remote communication in court proceedings[3] and suspended statutory speedy trial deadlines and time standards,[4] the constitutional implications of those orders need to be considered.[5] To better understand how a criminal defendant's rights to (1) a speedy trial, (2) an impartial jury, (3) confront their accuser(s) and (4) effective assistance of counsel have been impacted by COVID-19 and the use of remote judicial proceedings at the federal and Kansas state court levels, each will be separately discussed in greater detail.
The Right to a Speedy Trial
In the United States and Kansas, criminal defendants are afforded the right to a speedy trial.[6] With COVID-19 limiting operations of courts across the United States at both the state[7] and federal levels,[8] some states, like Kansas, entered blanket orders that reduce the tolling of time limits for speedy trial periods.[9]
For example, consider the impact of reducing the tolling of time limits at the federal level under the Speedy Trial Act, which states that the federal government must begin a trial for federal charges either no later than 70 days after either (1) the indictment or (2) after the defendant's first appearance in court, whichever is later.[10] The orders made by federal courts to suspend in-court proceedings[11] may be permissible in the Speedy Trial Act's catch-all provision, which allows extensions for the tolling of those time periods.[12] However, nowhere in the Act are those orders definitively permissible.[13] Even though a continuance may be granted when "...continuation of such proceeding [is] impossible [,]" there is no way to determine if the limiting of in-person court proceedings as a result of a pandemic would constitute a finding that court proceedings are impossible.[14] Until federal precedent is available on the constitutionality of such orders in the wake of a pandemic, the uncertainty of their validity will remain.[15]
Concurrently, in Kansas, administrative orders have been entered by the Kansas Supreme Court, which limit the expiration of speedy trial protections enumerated in K.S.A. 22-3402.[16] Normally, a criminal defendant in Kansas must go to trial within 150 days of the defendant's arraignment on the charges.[17] However, this period can be extended without violation of the Sixth Amendment of the United States Constitution so long as it does not fail the four-factor Barker test recently adopted by the Kansas Supreme Court. To pass this test, the following four factors must be evaluated "... (1) length of delay, (2) reason for the delay, (3) defendant's assertion of his or her right, and (4) prejudice to the defendant."[18] Without a concrete end date to the COVID-19 pandemic in sight, prosecutors will have to hope criminal defendants either (1) consent to continuing their trials remotely and avoid this issue entirely, or (2) entrust that the orders suspending the expiration of speedy trial times will pass the four-factor Barker test.
Further, unlike jurors and court staff who can remain at home while these orders delay criminal proceedings, many criminal defendants are subject to lengthened stays in prisons and jails while awaiting trial. Unfortunately, the places where criminal defendants are held is where the risk of contracting the COVID-19 virus is often the highest.[19] "Incarcerated people are infected by the coronavirus at a rate more than five times higher than the nation's overall rate."[20] This also opens a Pandora's Box of Eighth Amendment issues related to holding those accused in an environment where they are at a higher risk of becoming infected with COVID-19.[21]
Generally speaking, officials overseeing the holding of accused criminals must "respond reasonably" to substantial risks to inmate health and safety to ensure they do not infringe on their Eighth Amendment rights.[22] If institutions holding people with pending criminal charges fail to (1) implement proper holding policies (such as allowing for proper social distancing), (2) maintain reasonably sanitary conditions, (3) identify and take additional precautions for high-risk inmates, (4) quarantine sick inmates, or (5) provide treatment for those diagnosed with COVID-19, those institutions have potentially violated inmates' Eighth Amendment rights and may be liable for the violations.[23]
The Right to an Impartial Jury
Criminal defendants are also afforded the right to an impartial jury under the Sixth Amendment of the United States Constitution[24] and Kansas's state constitution.[25] One of the most important components of an impartial jury is that it accurately reflect the diversity of the community from which it is selected.[26] Areas where courts have resumed jury trials during the COVID-19 pandemic are experiencing decreases in the number of people willing to report for jury duty due to fear of contracting COVID-19·[27] Those individuals who do not report for duty because of this fear are most often those medically or economically vulnerable to the virus.[28] This results in jury pools being underrepresented by the following demographics: elderly people, immuno-compromised individuals, racial and ethnic minorities, and even women (likely due to more children staying at home because of remote schooling.)[29] With the lessened availability or altogether lack of availability within these demographics for the jury selection process, jury pools are a much less accurate representation of the community from which they are selected.[30] The less diverse the jury pool, the lower the likelihood that a criminal defendant will have their case tried before an impartial jury[31]
Additionally, if the solution to in-person jury concerns is to switch to remote criminal jury trials—either through Zoom...
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