"Criminal Jury Trials Are Not Likely to Resume Prior to 2021" in Federal Court in Seattle

|The Volokh Conspiracy |

From a letter to parties by Judge John Coughenour (W.D. Wash.):

As reflected in the General Orders recently issued by the Western District of Washington, the coronavirus pandemic has substantially affected the Court's ability to conduct in-person proceedings. It is the considered view of most judges in the Western District of Washington that criminal jury trials are not likely to resume prior to 2021. The Court cannot configure its courtroom for trial to comply with the social distancing guidelines promulgated by local and national health officials, and the Court is not confident that potential jurors will (or should) respond to subpoenas before they are convinced that it is safe to do so. Therefore, the Court will continue the trial dates in pending criminal matters consistent with future General Orders, which exclude the time of such continuances under the Speedy Trial Act.

However, the Court believes that it is important to maintain existing case schedules to the greatest extent possible under the current circumstances. Therefore, in granting future continuances of trial dates, the Court will keep case management dates the same absent a showing of good cause. This will ensure that trials are efficiently resolved once in-court proceedings are safe for the parties, counsel, and jurors.

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  1. I wonder how many cases will be thrown out due to inability to provide a speedy trial. That certainly isn’t something I’d want to risk waiving right now.

    1. I’d put the over-under at 1.

      1. Or rather, .5. And I’d take the under.

  2. “which exclude the time of such continuances under the Speedy Trial Act.”

    Is this constitutional?
    Will any of the defendants challenge it?
    What will the government do if they all challenge it?
    Should they be allowed to hold anyone in custody pending trial under such continuances?

    1. The Speedy Trial Act is a statute that is designed to move cases to trial faster than required by the speedy trial guarantee of the Sixth Amendment in order to ensure that it is not violated. There is no serious question that these exclusions satisfy the Speedy Trial Act (at least barring a very unusual situation in a particular case). It is theoretically possible that this could nevertheless violate the constitution, but it doesn’t seem very likely.

      I’m not sure I see the connection with the authorization for pretrial detention.

      1. “It is theoretically possible that this could nevertheless violate the constitution, but it doesn’t seem very likely.”

        It seems even less likely that, if it did, the courts would deign to admit it.

        I see a real constitutional issue here: There may be people in pre-trial detention who will end up detained for longer than the potential sentences they face if convicted.

      2. I don’t see how indefinite postponement of trial can not be a violation of 6A. The reasons for the postponements are completely irrelevant.

        Though I tend to agree with Brett that the courts will bend over backwards to ignore the obvious problem.

        You don’t see any constitutional issues with holding people in custody without trial indefinitely?

  3. It strikes me that if people are having their trials postponed they should not then continue to be held in pretrial detention. Try them or release them pending trial. I don’t see how the government can have it both ways.

    1. It can have it both ways in the usual manner: The government’s actions are judged by it’s own courts.

  4. The feds are usually pretty good about not detaining people pre-trial unless there is a strong reason to do so. So this worries me less than it would if issued by most State court systems.

  5. State court systems are facing similar hurdles.

    I practice criminal law in a western state (not Washington). My local county courthouse had problems before COVID-19 — it is too small, with all but the first floor serviced by two tiny, slow elevators that are also used transport prisoners from the basement to whatever floor their case is being heard. To follow current social distance protocols, only two people could fit in each elevator at a time, but only if each is crammed into opposing corners to have the appropriate six feet separation.

    The courtrooms themselves are also relatively small, and expanding the jury box so that jurors could social distance would require appropriating space from the well of the courtroom. The jury rooms themselves barely held 12 people BEFORE the current crisis.

    In word, its a mess. Unfortunately, neither the federal point in the OP nor the county court I regularly practice in are the exception. Instead, I suspect they are the rule.

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