Allegedly Special: Covid's Impact on Courts, One Year Later

Good morning, everyone.

At 5 p.m. on March 16, 2020, New York City’s courts ground to a halt. All non-essential state court functions were postponed until further notice. The shift toward virtual proceedings took hold the next day, with videoconference-based arraignments starting in New York City’s criminal courts. While many non-essential functions have resumed via remote platforms, the change has dramatically impacted court proceedings this year. News emerged several weeks ago, however, that jury trials would kick off in March. “As you know, the COVID metrics have improved and the vaccination campaign is expanding to reach more and more people in New York State. As a result, we are moving forward with our plans to incrementally expand in-person operations and re-start a limited number of civil and criminal jury trials on Monday, March 22nd,” Chief Judge Janet DiFiore said Monday.

As part of our efforts to show how Covid-19 has impacted courts over the past year, and what these impacts might mean for the future, Allegedly will be publishing several stories this week about what’s happening in New York City’s halls of justice.

Our first installment is brought to you by Andrew Denney. Please enjoy!

Jurors Are Returning To Court. Things Will Still Be Weird.

By Andrew Denney

New York City’s courthouses are sputtering back to life, which means that residents may soon find themselves taking on a role they’ve largely avoided for many months: jury duty. Even as jury duty resumes, the pandemic will likely have longterm effects on how court business is conducted. Masks and witness testimony by Zoom will be de rigueur. Potential jurors should expect temperature checks and even regular COVID-19 tests.

The slow resumption of trials has put into sharp relief just how much their postponement has impacted New York City’s defendants, plaintiffs, and prosecutors.  Defendants in civil cases have been under less pressure to settle with plaintiffs without a pending jury trial looming over them. At the same time, defendants in criminal cases who are presently held pending trial have had to wait longer for their day in court. 

But those who are out might have benefitted from the fact that charges against them largely depend upon witnesses’ fading memories. Prosecutors might be increasingly willing to seek lesser charges just to lessen case backlogs, attorneys told Allegedly.

“It’s a mixed bag,” said Joel Rudin, a criminal defense and civil rights attorney representing Kareem Bellamy, who was wrongfully convicted of murder in 1995, and who is still locked in a lawsuit against the city. 

“It depends on the nature of the case,” Rudin said. “If it’s a criminal case, where the government holds all the cards, if the government seems to have a strong case, then generally the defendant is not going to be in a rush to go to trial…a civil defendant may hope the case [weakens] over time, the plaintiff’s case may weaken over time, a criminal defendant may hope that the prosecution’s case [weakens] over time.”   

In the federal courthouse for the Southern District of New York in Lower Manhattan, two men are currently standing trial for accusations of laundering more than $160 million in transactions for the San Francisco-based marijuana delivery service Eaze Technologies, the so-called “Uber of weed.”  The trial for Los Angeles businessman Hamid Akhavan and German consultant Ruben Weigand  is the first, in-person criminal jury trial held in the city this year.

Rakoff’s courtroom has all the signs of the new normal for any public gathering. Jurors and attorneys are socially distant and masked up. Witnesses deliver testimony from behind a plexiglass barrier or by videoconference platforms. Despite the precautions, one of the jurors tested positive for COVID-19 a few days into the trial and had to be swapped out. “That’s why we have alternate jurors,” Rakoff said from the stand.

The trial for Akhavan and Weigand began almost one year after New York City’s bustling courthouses—perhaps the busiest in the United States—went mostly pin-drop quiet as judges and court officials took steps to limit the number of people in their halls. That included pausing jury trials, a process that places perfect strangers shoulder-to-shoulder for periods of time that range from a few hours to several months. There were about 800 criminal jury trials in New York City’s federal and state courts in 2019. From March to December 2020, there were just nine completed jury trials, The New York Times reported. 

The trial for Akhavan and Weigand is one of three held so far this year in the Southern District. In February, two Southern District judges each held a jury trial for civil cases, according to a court official.

As for New York’s state court system, officials have set March 22 as the start date for a “slow ramping up” for trials to resume, starting with less-complex civil cases and criminal matters involving jailed defendants, said court system spokesman Lucian Chalfen.

Chalfen said that about 7,300 jury summonses are already in the mail. Service dates will be staggered to reduce the headcount in courthouses during jury selection. “Anyone uncomfortable with reporting will be excused,” Chalfen said.

State Supreme Court Justice Lawrence Knipel, Brooklyn’s administrative judge for civil matters, presides over the highest-volume civil court in the state. He said that there are eight jury trials planned for the week of March 22.

Prior to the pandemic, the courthouse at 360 Adams Street in Downtown Brooklyn held more than 900 jury trials annually on matters that include medical malpractice, personal injury, and divorce cases. 

Knipel’s courthouse was especially hard hit in the opening months of the pandemic, before widespread adherence to edicts for mask wearing and social distancing. Knipel himself was “very, very ill” last year when he became infected with Covid-19. Two of his fellow judges at 360 Adams, Johnny Lee Baynes and Noach Dear, died from coronavirus last spring. They were 64 and 66 years old, respectively.

Knipel said that safety measures such as required masking, temperature checks, and questionnaires asking about exposure to coronavirus, will be in place as in-person proceedings resume. He said the court plans to start holding trials for relatively simple matters, such as slip-and-fall cases and auto-accident disputes, that won’t need lengthy periods of deliberation, before moving on to more complicated issues like medical malpractice.

“We want to do shorter cases,” Knipel said. “We don’t want to do longer trials. At first, anyway.” 

The headcount in the jury pool room on the ground floor of the courthouse, which can fit roughly 400 people, will be limited to about 80, Knipel said. Jury selection will be held in courtrooms and the number of spectators will be limited, he said.

Additionally, Knipel said that the court used to call up jurors to its central part for possible assignment to 120 cases each day. That number will likely be reduced to 30 or 40 for the foreseeable future, he said. Knipel also said that he expects videoconferencing of some court matters to remain a lasting change. Generally speaking, he said, courts are going to be a “different world.” 

“The courts, we’re a very conservative institution. And we adopt changes slowly,” Knipel said. “But the world itself has been more digital all the time. The old attorney who practiced 50 years ago, if he popped up in our courthouse one year ago he would be very familiar with what’s going on, because nothing changed much. But now it’s changed. Now we’re digital.”

He added: “A lot of these changes, a great saver in time and energy. And they will not go away.” 

For plaintiffs in civil matters, the virtual disappearance of jury trials means they might be waiting longer for their adversaries to throw up their hands and make a settlement offer, Rudin said. 

“Settlements have slowed down tremendously,” Rudin said. He said that, while technological improvements have helped cases move along more quickly—now depositions are increasingly handled online—it’s been difficult for attorneys and judges to nail down trial dates.

Rudin, who is fighting on Bellamy’s behalf in the federal court for the Eastern District of New York, also said that federal judges are giving preference for trial dates to criminal cases over civil matters. 

On the criminal side, the disappearance of jury trials have been either a curse or a gift, depending on the defendants’ situation.

Criminal defense attorney Robert Tsigler noted that some defendants also face immigration consequences—such as potentially getting deported or missing their shot at getting their asylum applications approved—while they wait for their day in court. 

But Tsigler said that others are aided by the fact that district attorneys are subject to re-election every four years and that some of their assistants may feel pressure to resolve cases—and thus cut deals with defense attorneys for lesser charges—knowing that a trial date may be far down the road.

“For some clients of mine, this is a benefit,” he said. “For other clients of mine, it’s a disaster.”   

Tsigler also noted that for state court defendants who are waiting in jail to see a jury, the amount of time they spend in lockup gets knocked off their sentence.

Spoliation of evidence is a concern for attorneys in any practice area. For prosecutors, cases often hinge on the accounts of witnesses and victims whose memories—and even their willingness to take the stand against defendants—may fade over time.

Former Westchester District Attorney Anthony Scarpino Jr., who last year lost a bid for re-election after one term in office, said that time is not always on the side of the prosecution. In some cases, a far-flung trial date may allow for more time for violent threats to witnesses to keep them from testifying.

“From the prosecution side, you’re always concerned about the nature of the delay, the loss of witnesses, the problems with their memory, whether they leave the area, whether they get COVID, whether they became ill or we lost them,” Scarpino said. “You’re also worried, in certain types of cases as time goes on, [about] their reluctance to testify based upon their own personal safety.”

Criminal defense attorney Patrick Brackley said that the drop in jury trials has also made life easier for the defense bar because they have not been faced with the complicated task of working on jury selection, an often subjective affair in which lawyers weed out potential jurors based on small details, like the way they look when they answer questions, or the books they bring to court.

Brackley said that in an environment where in-person trials might be months or even years away, prosecutors are feeling increased pressure to get matters resolved more quickly, especially since cases have been piling up throughout the pandemic.

“In the same way as any other organization or any other business has to move product, if that’s what it is,” Brackely said. “And these are all people, cases involving witnesses. How many witnesses can they bring in? How many cases can they try? So, it benefits defendants because there is a clear motive to separate the serious cases from the not-so-serious cases.”