The number of criminal trials that have been put on hold is harder to pin down, as most cases are resolved with a plea agreement before reaching trial.
08/24/2020 - Lawrenceville, Georgia - Tape is used to mark off areas of court benches for social distancing in the courtroom of Chief Judge George F. Hutchinson III at the Gwinnett Justice and Administration Center in Lawrenceville, Monday, August 24, 2020. (ALYSSA POINTER / ALYSSA.POINTER@AJC.COM)
Criminal defendants can still ask for bond or accept a plea deal right now, but those charged with murder, rape or other serious crimes are typically not granted bond before their day in court. One case that’s waiting for courts to be restarted: Emmett Davis Jr., charged with killing 19-year-old Silling Man and leaving her body to decompose in the Gwinnett Place Mall in 2017. Davis has been in jail since his June 2018 arrest and was expected to go to trial in November before the judicial state of emergency was issued.
Defendants who end up going to trial tend to wait months or years before seeing a jury under normal circumstances. Both Porter and DeKalb County DA Sherry Boston estimate their waits will likely be extended by more than just the six months the courts will have been closed for when the latest judicial order expires.
Defense attorney Lawrence Lewis, who regularly handles serious felony cases, expects some of his clients will endure waits of up to two to three years. Such a long delay could be detrimental to defendants’ well-being if they are not granted bond, Lewis said.
“You can’t keep a man in jail for a year without a prospective trial date and expect them to stay the same. The longer they are in jail, I see my clients get worse and worse as far as their mental capacity and willingness to fight,” Lewis said. “When they finally see a jury, they look guilty because they’ve been incarcerated for so long.”
District attorneys and judges are grappling with how to safely assemble juries and grand juries once the judicial emergency is lifted. Selecting grand jurors and trial jurors usually requires dozens or hundreds of people to come to a courthouse for the selection process.
“The processes and procedures of the past are going to have to be completely rethought and reworked,” said Gwinnett County Superior Court Judge George Hutchinson.
DeKalb County District Attorney Sherry Boston has a plan to safely assemble grand juries once the emergency order is lifted. Because grand jury selection is much simpler than selecting a jury for an individual criminal trial, Boston believes she can perform that process via video conference. Once she has enough people for two grand juries, the members could be assembled in a room large enough for everyone to have their own six-foot table to sit at. Grand juries usually consist of 26 people and serve two days a week for two months.
The number of witnesses and people coming in and out of the grand jury room could be limited, and evidence presented electronically whenever possible. The second group would remain as a backup in case the first grand jury must be quarantined, which Boston believes is a question of when, not if.
“Losing a grand jury for 14 days is a really big deal once everything is turned on,” Boston said. “There will be a time when grand juries will have to be quarantined. We have to plan for the possibility that there will be an exposure or potential exposure.”
08/24/2020 - Lawrenceville, Georgia - Gwinnett County Chief Judge George F. Hutchinson III (right) presides over a virtual court case conducted in his courtroom at the Gwinnett Justice and Administration Center in Lawrenceville, Monday, August 24, 2020.The cases were conducted over Zoom. (ALYSSA POINTER / ALYSSA.POINTER@AJC.COM)
Juries for individual trials are a more complicated problem to solve. Typically, a pool of hundreds is called to the courthouse and split off into smaller group. Each is whittled down to around a dozen after a day or more of questions from prosecutors and defense attorneys. Jury selection usually comes with a packed courtroom, and the final group sits close together in the jury box; the entire process is incompatible with social distancing, Porter said.
An approach similar to Boston’s grand jury plan could be taken for jury trials.
“Maybe we go to a bigger space,” Porter said. “The chief judge could authorize some space as a temporary emergency courthouse.”
When jury trials can resume, they’re not expected to snap right back to the past timeline. Each step will likely take a little longer after social distancing measures and other health precautions are taken into account, Porter said.
“Every process will be extended,” Porter said. “A weeklong trial will take two weeks, a two-week trial will take three weeks. If they’re right and a vaccine shows up by the end of the year, that will change the dynamic, but I’m not planning for that.”
The effects of the pause in trials and grand juries could linger for years; Boston believes it could be two years before DeKalb’s courts are back to the pace and volume of 2019, the last full pre-pandemic year. Gwinnett added a new superior court judge in January out of necessity; the fast-growing county’s raw number of criminal cases rose just as the population did.
“I don’t know how you’re ever going to catch up because the system was busy before,” Lewis said. “It’s not like people were sitting on their hands.”