This is a very serious issue. We have the “Speedy Trial Act” in the United States which generally requires trials to occur within 70 days from the date of the indictment. During the emergency, because of the unavailability of grand juries and the inability to promptly hold conferences and hearings, I have excluded this delay time from counting against speedy trial requirements. As Chief Judge, I have statutory authority to suspend these rules in an emergency, and this is the kind of emergency that allows us to do that. But we are trying to proceed with our cases as much as we can using video conference, except for trials. This way can move the process along, avoid later backlogs, and help guarantee the rights of defendants.
Speaking of criminal proceedings, the constitutional tradition of the US has long recognized the right to counsel and the right to consult with a lawyer. This is also a precondition to move the proceeding along. How can courts facilitate the enjoyment of this guarantee under these circumstances?
This is a very important point. There was a real roadblock for us initially because many of our criminal defendants in pending criminal cases are being detained. They are at a local detention facility which locked their doors to the outside to prevent the virus from infecting the people there. We appreciate what they have done very much as there are yet no cases of coronavirus infection at our detention facilities. However, making sure that lawyers can fully consult with their clients was a challenge. To meet this challenge, we set up rooms at the detention facilities with iPads. Defendants are scheduled for those rooms and they can confer directly to their attorneys through the iPads without anyone listening. This allows us to move their cases along. It took us about a month to get that organized just to make sure that we had sufficient video conference technology, sufficient bandwidth, iPads, rooms, and also guards ready to bring detainees to the room. It has been a real set of challenges. We have finally reached the point where those meetings can be effectively conducted and that has enabled us to start scheduling the criminal hearings. Normally, lawyers meet in person with their clients in the detention facilities. That cannot be done during a lockdown and our solution has overcome this challenge.
It is indeed quite impressive. But let’s take a look at the other side of the coin. As you mentioned, the operations of juries, including grand juries are now being put on hold. Another constitutional provision, however, envisions that some criminal charges can only be brought by the decision of a grand jury. How can communities be defended against criminals if no grand jury is able to continue its operation?
We are planning to bring back a grand jury previously scheduled on May 14 to hear evidence and to vote on indictments. We think that we can do that with grand jurors in separate courtrooms, socially distanced, and hearing witnesses and arguments from the prosecutors and law enforcement agents by video conference. We are hoping that this will work. We cannot wait for a long time for individuals accused of crimes to be charged. It is true that in an emergency a person can be charged by a federal prosecutor by complaint. That is what happens when a person, for example is arrested for a bank robbery and must be charged and detained immediately before a grand jury can meet. The rules require that a grand jury hear the basis for an indictment and vote on an indictment within thirty days of a complaint being issued. On behalf of my court, I extended that thirty-day deadline during this emergency so that people charged with complaint can wait longer for the indictment. But this cannot last for very long. The Constitution does require that all felonies be charged by a grand jury unless the defendant waives the right to have the grand jury hear evidence and vote on whether to return an indictment. The grand jurors understand their important role in our criminal justice system and the need to meet to consider indictments. We will take all possible precautions to make sure that they can socially distance themselves and are kept safe.