Update: Late Wednesday night the Washington State Supreme Court postponed "all out of custody criminal matters already pending" and some in custody cases until April 24, which should solve the problem I report below for now. Thanks, Supreme Court!Sponsored
Task forces composed of defense and prosecuting attorney associations convened to draft the order. Amy Muth chaired the defense attorneys' task force and Adam Cornell chaired the prosecuting attorneys' ad hoc Committee on COVID-19.
In a statement, Muth said she was "humbled by the fact that we practice in a state where it was possible to do this in 48 hours," and hopes Washington will be a model for other states. "Our criminal justice community—our defense attorneys and allies, our prosecutors, and our very own Supreme Court—values people over procedure. Lives will be saved," she said. That said, please continue reading so you can see how messed up this situation was, and trust that I'll continue to monitor the situation in the coming days.
In the last week courts across the country have closed their doors for non-essential operations in order to flatten the curve during the coronavirus outbreak. New York did it. North Carolina did it. Georgia did it.
On Tuesday Chief U.S. District Judge Ricardo Martinez closed the western district courts in Seattle and Tacoma and moved all "criminal initial appearances and detention hearings" to telephone and video conference. In the last few days, Thurston, Snohomish, Pierce, and Clark County Superior Courts have all continued out-of-custody cases until next week or mid-April as a matter of course.
But King County Superior Court? Not so much. Though Governor Inslee has suspended residential eviction cases for a month, people are still crowding into a tiny, poorly ventilated waiting room at the King County courthouse in downtown Seattle only to be told, in the vast majority of cases, to come back a few months from now.
As I reported Monday, attorneys and defendants are working in close quarters. A couple bottles of hand sanitizer sit on tables, and there's a box of disposable gloves people can use.
Noting that clients and staff have been convening "far in excess of what the public health guidance is," thereby imperiling the well-being and the lives of pretty much everybody, King County Department of Public Defense director Anita Khandelwal has called on the court to suspend appearances for out of custody defendants, i.e. people who aren't in jail, for two months.
On Monday King County Presiding Judge Jim Rogers said he didn't anticipate doing that anytime soon, and that was the last of it. But today he has gotten back to me with more.
In an email, Rogers remains resolved not to suspend out of custody appearances "at this time."
"The stakeholders in criminal courts need to think longer than a month out as this crisis will be with us for some time. We can’t suspend arraignments and hearings indefinitely. Also, some people just show up and there’s no way to control for that entirely," he added.
Rogers said he's proposed limiting the number of people in court by "constitutionally" closing the courtroom, i.e. holding hearings behind closed doors, but public defenders object.
They've also moved cases around to other courts in an attempt at social distancing, but then public defenders and prosecutors complain that it spreads their work too thin.
"It feels a little like living in a Joseph Heller novel," he said.
As courts in other states have done, defendants can and have been calling in to be issued their continuances. The Court is also standing up a video system, and "within a short period of time" that system will allow "in custody and out of custody video appearances," Rogers said. "No one has to come in."
And yet, they still are. Partly because many defendants are poor and don't have phones, partly because some are English language learners, partly because arraignments can't be done over the phone, but mostly because they've been summoned by the Court, and they're afraid of being issued a bench warrant if they don't comply.
In an email, Khandelwal said she "continues to advocate that the court take constitutional measures to end out of custody arraignments, case setting hearings, sentencing, and other hearings."
"The constitution doesn’t bar common sense," she added. "Judge Rogers’s problems can be simply, quickly, and professionally solved by ending out of custody hearings. The rhetorical somersaults he is willing to take to avoid this simple truth suggest he is acting more like a contortionist than a jurist."