Stuck in an Overwhelmed Legal System: Civil Suits, Criminal Defendants and Trump’s Tax Returns

By Renato Mariotti

The nation’s health care system and its economy are already reeling from the effects of the still spreading coronavirus. But the pandemic has had a profound, though less noted, impact on our legal system as well.

I practice in courts across the country, and over the past week my inbox has been full of orders and notices from courts regarding changes in their practices due to the coronavirus. These orders give us a peek into how courts across the country are scrambling to ensure that justice is served and constitutional rights are protected while they make serious accommodations in the face of this public health threat. While these measures are a necessary response to a global crisis, if any of them stick after the threat has abated, they could permanently alter the legal system—and not necessarily for the better.

Even temporary changes have a big impact. For example, federal and state courts around the country have rapidly issued orders that delay thousands of cases en masse. For example, the federal court in Manhattan postponed all civil and criminal jury trials scheduled to begin before April 27, and Chicago’s federal court extended all deadlines in civil cases by 21 days and struck all hearings and trials in civil cases through April 3. New York state courts have postponed all trials “until further notice.”

While significant attention has been focused on the Supreme Court’s delay in oral arguments regarding President Donald Trump’s effort to shield his tax returns from New York prosecutors, which makes it even more likely that this issue will not be resolved until after the presidential election, a more immediate impact will be felt by the thousands of people who have filed civil suits and are waiting for the legal system to compensate them for their losses or injuries.

Social distancing runs counter to the way our legal system works. The jury selection process requires dozens of people to congregate for hours in a room. Motions are argued in person by lawyers who sit in an often packed courtroom waiting for their case to be called. Depositions involve a witness, court reporter and multiple lawyers seated together for hours around a conference table.

The criminal justice process involves even more in-person interaction. Law enforcement officers interact closely and personally with defendants, and criminal cases often involve defendants who are incarcerated and must be brought to the courtroom so they are physically present for proceedings. Charging a defendant with a felony involves convening a grand jury, which requires a dozen grand jurors to assemble in a small room with a prosecutor and witnesses.

The constitutional requirement that felony cases must be charged by grand jury will greatly reduce criminal charges. For example, the federal court in San Francisco recently suspended all grand jury proceedings until May 1. Arrests can be made prior to that time, but the defendant’s rights to a speedy trial and to be charged by indictment would need to be put on hold until a grand jury is convened. And who knows whether that May 1 deadline might have to be extended?

Given the risk of community spread imposed by arrest and incarceration, you can expect law enforcement to arrest fewer people in the weeks ahead, particularly for minor offenses. Brooklyn District Attorney Eric Gonzalez recently announced that his office “will immediately decline to prosecute low-level offenses that don’t jeopardize public safety.” His office also asked defense counsel to alert them to defendants who “are vulnerable to infection” and should be considered for release. More recently, Senator Kamala Harris (D-Calif.) pushed for the release of low-risk federal prisoners after inmates in a California jail tested positive.

But the criminal justice system can’t shut down completely, even during a pandemic in which the number of diagnosed cases is rising exponentially. Serious offenses cannot be ignored by police, so courts are turning to technology and changing their procedures in order to preserve defendants’ constitutional rights. For example, New Jersey state courts are conducting all hearings with incarcerated defendants as “video hearings, phone hearings, or will be adjourned as necessary.” Federal judges in Chicago are encouraged to review search warrant and wiretap requests via “reliable electronic means” rather than in person.

Given the global pandemic we face, these accommodations may be necessary in the short term, although the specter of defendants pleading guilty after a brief video conversation with a lawyer they have never met calls into question the constitutional adequacy of procedures in some jurisdictions. In any event, everyone understands that accommodations must to be made in the short term in the face of a global crisis.

But significant short-term changes can result in long-term shifts. A central feature of our criminal justice system is that defendants are physically present at all critical proceedings, which ensures that prosecutors and judges see the defendant in person while they make decisions about that person’s life, and enables the defendant to consult with his or her attorney in real time. The personal, face-to-face nature of our criminal justice system gives it humanity that a highly automated procedure would lack.

A streamlined process for investigating and prosecuting crimes can make law enforcement much more efficient. On its face, that may sound like a good thing, and it very well might be. But current penalties and legal standards are based upon a system that punishes only a fraction of people who commit crimes that can be difficult to detect and prosecute. If prosecutions are streamlined and our legal standards don’t change, incarceration could increase despite a widespread bipartisan consensus that criminal justice reform is needed.

Our legal system needs to evolve in the short term to respond to the coronavirus, and it is doing so. Recent positive tests by U.S. Marshals and courthouse employees drive home how necessary that evolution is right now. But once this crisis passes, we need to be mindful before using this experience to make permanent changes to our system. The humanity and face-to-face nature of our legal system is important and can't be replicated by a video screen.