Steve Lash//November 13, 2020
//November 13, 2020
Prosecutors, defense counsel and civil litigators have greeted with frustration but understanding the decision by Maryland’s top jurist to suspend jury trials again, just six weeks after they resumed, due to resurgence of the COVID-19 pandemic.
“We were running smoothly,” Montgomery County State’s Attorney John McCarthy said Friday of the now-stalled resumption of jury trials on Oct. 5 after a nearly seven-month pandemic compelled hiatus. “Having made that progress, it’s very deflating to know you’re back to square one.”
Court of Appeals Chief Judge Mary Ellen Barbera on Thursday ordered criminal and civil jury trials in Maryland to be suspended at least through the end of the year beginning Monday except for those cases in which the jury has already been empaneled. Barbera’s order came amid data showing a seven-day positivity rate of more than 5% for COVID-19 tests conducted in the state.
McCarthy said Barbera’s order was expected in light of the test results and Gov. Larry Hogan’s recommendation that indoor gatherings be limited to at most 24 people due to the resurgence – a capacity inconsistent with holding a jury trial.
McCarthy added he has “realistic concerns” that jury trials will not resume in January, creating an even great backlog of cases and making it more difficult to prosecute those defendants when they do come to trial because witnesses may have moved and their memories might have clouded.
“Criminal cases are not like fine wine,” McCarthy said. “They don’t get better with time.”
Baltimore County State’s Attorney Scott D. Shellenberger said he agrees with Barbera’s decision to again suspend jury trials, noting the order protects not just the many jurors but his staff and court employees. However, he added, the delay is nevertheless frustrating.
“We will at some point figure out a way to try cases,” Shellenberger said.
“There is obviously a constitutional right for a defendant to have a jury trial,” he added. “Their cases will have to wait.”
Criminal defense attorney A. Dwight Pettit said time is neither a luxury detained criminal defendants have nor a delay the Constitution will tolerate even amid a pandemic.
“It’s a horrible situation,” Pettit said of the suspension of jury trials. “It seems to be unavoidable.”
But “the right to a speedy trial is paramount,” he added. “The Constitution is still paramount.”
Pettit, who also represents plaintiffs, said the renewed suspension will further delay civil trials, with many being put off for a year or more as criminal proceedings are given top priority.
The delay in civil, personal-injury litigation will generally benefit corporate defendants and their insurance companies, which have the financial wherewithal to await a verdict while the plaintiffs they allegedly harmed do not — especially amid the economic turmoil wrought by the pandemic, Pettit said.
In such desperate times, financially strapped plaintiffs are often willing to accept settlement offers for far less than the economic and emotional costs of their injuries rather than wait what could be years for a verdict that may or may not be in their favor, he added.
“All you can do is give the client the pros and cons” of accepting the lowball offer, said Pettit, a Baltimore solo practitioner. “My advice (to them) is that ‘you hold on but if you can’t, I understand. It’s your call.’”
Attorney Lauri E. Cleary, who represents management in civil litigation, said the suspension of jury trials and the resulting delay in courtroom resolutions have increased plaintiffs’ willingness to settle.
“Some cases have settled more easily than I would have expected without the pandemic,” said Cleary, of Lerch, Early & Brewer Chtd. in Bethesda. “When the system increases delay, it puts pressure on plaintiffs.”
The suspension of jury trials has also reduced the desire for litigation between businesses as they are now more concerned with staying afloat and protecting their employees’ health amid the pandemic than waging an expensive courtroom battle that might not be resolved for years.
“There’s more hesitation and more caution when they know they aren’t going to get to trial in a reasonable time,” Cleary said. “Both sides of every dispute must factor into their calculus that any resolution is likely to be delayed beyond the usual timetable for litigation.”
McCarthy, the Montgomery County state’s attorney, expressed optimism that the Maryland Judiciary’s experience in resuming jury trials – albeit short-lived – will make the process of return easier when the positivity rates decline and when a vaccine is approved and distributed.
“While we wait, the number (of backlogged cases) will grow, but we’ve been through this before,” McCarthy said. “The fact that we have a blueprint is a huge advantage.”F