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Defendants, Victims in Arkansas Left Waiting for Justice in Pandemic

Jury trials have essentially been on hold for almost a year by order of the Arkansas Supreme Court. Defendants can't get their day in court. Victims can't get justice. And lawyers and judges see cases stacking up, waiting to be resolved when the pandemic finally ends.

The delay is taking a toll on people caught in the system.

"I have had more than one client who has been in the free world who, when I have discussed their case with them, have repeatedly said 'I just want to get this over, one way or the other,'" said Jay Saxton, the chief public defender in Benton County.

And, if their case is set for a jury trial, it's just one of many on hold in a pandemic that nobody has control over, he said.

Dana Scott, victim and witness coordinator at the Washington County prosecuting attorney's office, said reactions have been mixed among the victims of crimes she helps shepherd through the legal system.

"Over the past 10 months, responses to covid-related delays have ranged from tears of disappointment and feeling like no one cares, to acceptance and understanding," she said.

After state and national emergency declarations, the Supreme Court suspended in-person proceedings, including jury trials, in all appellate, circuit and district courts in the state, subject to some exceptions. Its order waived speedy trial rules and other requirements in the Arkansas Rules of Criminal Procedure until further notice.

In Arkansas, the prosecution normally has a year to take a person to trial on felony charges if he is out on bail or has nine months if the person is in jail, according to the American Civil Liberties Union of Arkansas.

The clock for speedy trial begins when the probable cause hearing is held. That is when bail is set and legal counsel is appointed.

The Supreme Court's order suspending jury trials has been repeatedly extended over the past year and is in effect until at least May.

That has left victims and their families in a holding pattern, waiting to find out how their cases will be resolved, if they will be resolved, and if they will have to testify.

"Victims are stuck in the system's timeline, and the longer it takes for cases to resolve, the longer it is before they can move forward [with their lives]," Scott said.

On the other hand, Junior Teorea has been in the Washington County jail, charged with killing a Springdale man, since August 2017. He has waited longer than any other pretrial detainee at the lockup.

Teorea was 16 when he was charged as an adult with capital murder. He is one of 19 other people currently facing murder charges in Washington County.

COURTS OPEN

No jury trials are being held, but the courts are open.

"Criminal matters, such as initial appearances, detention hearings, arraignments, omnibus hearings, suppression hearings, plea hearings and sentencing hearings shall continue to take place either by video conference or in person, as scheduled by the presiding judge," according to a subsequent order from the high court.

"All civil hearings and other court proceedings shall take place either by video conference or in person, as scheduled by the presiding judge," the order says.

Matt Durrett, 4th Judicial District prosecutor, said high court justices are "monitoring the numbers like everybody else is, and, while there is a concern about these cases languishing, there is a bigger concern over public safety" during the pandemic.

"So, I think that until there is a more widespread distribution of the vaccine, you're still going to have solid grounds for that exception for speedy trial," he said.

Durrett noted that jury trials require lawyers, witnesses, the parties in the case, judges, court reporters, transport officers and support staffs.

"It's not feasible to be having big rape cases, big murder trials and what-not when you're going to be calling 50 to 100 people in as prospective jurors," he said.

Federal courts also suspended trials in March, and the speedy trial time is excluded from consideration under the federal Speedy Trial Act. That order has been extended multiple times. Federal judges are conducting initial appearances, arraignments, detention hearings and issuing search warrants. Plea changes and sentencings are being done by video or in-person, as decided by the presiding judge. Civil hearings and other court proceedings are being done by video or in-person as decided by the judge.

Saxton said his defenders are resolving as many cases as they can.

"My office has not lost sight of the fact that even if a person is in the free world, their life is on hold. They may not be able to get a job, they may not be able to get into housing, if they have a criminal charge," he said. "We have a very heightened sensitivity to try to move as many cases as we can through."

Madeline Porta, operations manager with the Bail Project, a national nonprofit organization that provides free bail assistance and pretrial support to low-income people, said ongoing delays mean many who can't afford to post bond are stuck in jail indefinitely.

"There's a growing backlog," Porta said. "A case that used to take a few months could now take over a year, so pretrial releases are all the more critical."

Early in the pandemic, Durrett preauthorized the use of prisoner release on felony citations, rather than cash bond, for certain low-level, nonviolent offenses to curb the number of people waiting in jail.

Saxton said fewer than 5% of cases his office handles end up going to trial. The majority are resolved by plea bargains. The problem comes when a client insists on a trial, he said.

CAPITAL CASES

Longtime defense attorney Doug Norwood said he expects someone at some point to file a legal challenge to the high court's decision to delay trials.

Speedy trial rules typically aren't a big issue in theft or drug charges, but capital murder cases are different.

"When you get past the speedy trial period, the defendant wins," Norwood said in capital murder cases.

Capital cases take longer to resolve and tend to raise more opportunities for speedy trial issues, Durrett said.

It's not unusual for murder cases to take a couple of years to resolve "because there are so many moving parts," Durrett said. "You're dealing lots of times with Crime Lab stuff, mental evaluations and just the time it takes for preparation for both sides."

Washington County has more than 4,000 pending felony criminal cases. Before the pandemic, about 30 cases a year actually went to trial, about 1%.

Judges have been moving as many cases along as they can, Durrett said.

"I don't want to make it sound like nothing's getting done. We're resolving what we can resolve," he said. "It's not just from our side; defense attorneys are having more trouble because there are covid restrictions down at the jail when you have defendants who are in custody."

Durrett said not being able to talk to a client face-to-face is challenging.

"It's a whole lot more difficult to have a real, in-depth discussion over a pretty big penalty via email or telephone," Durrett said. "It needs to be done in person. It's harder to talk through the pros and cons of an offer, or not taking an offer, with a defendant when you're having to do it by distant means."

Durrett said his deputies know a day is coming when they'll be back in the courtroom dealing with the backlog.

"We're focused on making sure that we're still working our cases as if we've got jury trials coming up so when the stuff does start going again, we're not going to be caught by surprise," he said.

A typical pre-covid day in court saw about 25 pleas and arraignments, Durrett said. That number will almost certainly have to increase once the pandemic abates.

Washington County Circuit Judge Mark Lindsay said he recently hired a full-time law clerk to review cases and make recommendations about which ones can be quickly resolved.

"Once the gates open on this, I'm gonna have to be in the courtroom all day long, and I'm not going to have time like I used to to review files and motions and stuff like that," Lindsay said. "Plus, I need someone to confer with the lawyers and give me a snapshot of what's going to happen in a hearing or a trial or whatever. The issues that are coming up."

Source: Ron Wood, Arkansas Democrat Gazette, 2021

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