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As Md. trial backlog grows, attorneys fear impact of justice delayed

It’s essential lawyers and judges continue to advise a Maryland State Bar Association committee on its draft of model voir dire questions, according to committee co-chair Paul Mark Sandler, who noted the bench and bar have different goals during the jury-selection process.

It’s essential lawyers and judges continue to advise a Maryland State Bar Association committee on its draft of model voir dire questions, according to committee co-chair Paul Mark Sandler, who noted the bench and bar have different goals during the jury-selection process.

Maryland courts remain at least 11 weeks away from resuming jury trials, a nearly three-month span that will deepen the backlog of cases wrought by the Judiciary’s effort to ensure that justice is not unduly delayed as it seeks to protect public health amid a pandemic.

On Monday, the Maryland Judiciary sought to make a dent in the backlog of pending cases by resuming nonjury trials in circuit and district court and reopening clerk’s offices to the public for the first time since March 16, when the state’s top jurist issued her first emergency order aimed at stanching the spread of COVID-19.

The court system’s steps toward reopening have not assuaged the concerns of prosecutors, criminal defense attorneys and plaintiffs’ lawyers who voiced understanding but concern for the continued absence of jury trials until at least Oct. 5 under emergency orders issued by Court of Appeals Chief Judge Mary Ellen Barbera.

More cases, both criminal and civil, will be filed in the interim, adding to the backlog, attorneys said Monday.

For example, Montgomery County State’s Attorney John McCarthy said he has a “healthy pessimism” regarding whether criminal jury trials will even be able to resume as scheduled. He cited the virus’ resilience – and, in many states, resurgence — and Maryland’s continued concern about gatherings of people in close quarters, such as a jury box or deliberation room.

“I want the courthouses to open (on Oct. 5), but I’m also realistic as to how things could happen,” McCarthy added. “I can’t tell you where we’re going to be.”

Criminal defense attorney Luiz Simmons spoke of a client who will have been in jail for over a year if his jury trial on a second-degree assault charge begins in January, months after it had originally been scheduled before the pandemic.

“It’s justice delayed,” said Simmons, a Silver Spring solo practitioner.

However, Simmons added, criminal defendants who have been released on their own recognizance pending trial presumably do not mind the pandemic-induced backlog and resultant delay, which could mean “they’re cases have been delayed into the firmament.”

From a practical, lawyerly standpoint, the backlog and delay in jury trials means that witnesses interviewed before the emergency court closures will have to be questioned again by defense counsel or the prosecution prior to trial, Simmons added.

“You have to make sure their testimony hasn’t changed in four months,” said Simmons, a former Democratic state delegate from Montgomery County.

COVID-19 has created an “awkward situation” for Maryland’s criminal justice system, Simmons said. The judiciary is “doing the best they can do,” he added.

Chief Judge Mary Ellen Barbera acknowledged the attorneys concerns last week in an online video message thanking them for their ‘patience and forebearance during these difficult weeks and months.’ (The Daily Record/File Photo)

Chief Judge Mary Ellen Barbera acknowledged the attorneys concerns last week in an online video message thanking them for their ‘patience and forebearance during these difficult weeks and months.’ (The Daily Record/File Photo)

The Maryland Judiciary stated last week it is unable to specify the number of cases that were placed on hold when Barbera issued her initial order shutting down the courts in March except for such emergency matters as domestic violence petitions, detention hearings, bail reviews, arraignments, juvenile hearings and protective orders.

Attorney James MacAlister noted that court filings did not shut down in March and said he expects the resulting backlog in jury trials to affect him and his fellow plaintiffs’ lawyers greatly, as criminal jury trials will be heard first in the state’s circuit courts because the justice system places a defendant’s liberty interests higher than a civil litigant’s financial interests.

MacAlister also voiced concern that additional delay in personal injury cases getting to trial may compel plaintiffs to settle their claims sooner and for less money, rather than enduring  a longer wait for justice with no certainty of ultimate success.

Amid the pandemic, plaintiffs are concerned they will have to “get justice a year from now – maybe,” said MacAlister, of Cohen, Snyder, Eisenberg & Katzenberg PA in Baltimore. “Justice delayed is victory for the defense.”

MacAlister also predicted that jury trials will not resume until well after Oct. 5 because most Marylanders — particularly older residents — will be unwilling to report for jury duty in light of the continuing pandemic’s threat to their health. He said he could foresee juries being comprised entirely of people in their 20s who believe they are immune to COVID-19.

Barbera acknowledged the attorneys concerns last week in thanking them for their “patience and forebearance during these difficult weeks and months.”

“Without your understanding and flexibility … the Judiciary would not be able to resume its core, court functions,” she said in an online video message.

“We are in a different world than the one we knew at the beginning of March,” Barbera added. “We may never return to the old normal. Given this reality, we must take the opportunity it presents to adapting technology, services and processes to deliver our mandate to you, the people we serve.”

The next step in Barbera’s phased-in approach to reopening Maryland’s courts is scheduled for Aug. 31 when nonjury criminal and civil trials in circuit and district court are scheduled to fully resume. That will be followed on Oct. 5 when “all courts will resume full operations, including jury trials in criminal and civil case types in the circuit court,” Barbera’s emergency orders stated.

But even with the reopening of the courts, Barbera has encouraged judges to conduct proceedings remotely to the extent they can.

Barbera’s administrative orders are available on the Judiciary’s website.

 

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