Defendants Stranded in Jail By Pandemic

Extended Pretrial Detention Upheld Despite Powerful Dissent

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When Tom was released by the DC Superior Court from DC Jail in December 2020, the twenty-seven-year-old man had been held for over seven months, pretrial and unindicted. Tom (a pseudonym) had been charged by the DC Superior Court with assault with a dangerous weapon and unlawful possession of a firearm with a prior conviction. While incarcerated, he was separated from his young son.

After being jailed for over half a year, prosecutors decided not to prosecute him, dismissing his case.

Given the year-long jury trial suspension in the District, Tom’s extended detention is not unique. On April 21, 2021, there were 719 DC Superior Court pretrial defendants being held in DC Jail. Normally, for people held under most charges, the US Attorney’s Office of DC (USAO-DC) is required to indict, or formally charge, defendants within ninety days, per DC Code. Defendants must be brought to trial within one hundred days or released. However, in late March 2020, the Court paused this deadline, under the authority of a statute which allows for the suspension of time deadlines due to emergencies or natural disasters.

In January 2021, the Public Defender Service for the District of Columbia (PDS) represented approximately 52 clients who were being held in DC Jail under the statute that includes this trial-clock, according to Janet Mitchell, special counsel to the director. The average number of days they had been held was 272, said Mitchell. Of the 110 PDS clients detained pretrial under a statute reserved for those facing serious charges such as murder, the average number of days detained was 462. “And the numbers—both of clients and of the days [of] the average length of detention—have only grown since then,” said Mitchell.

“You have people that are waiting, they have not been legally found guilty yet, so they are awaiting their trial, their day in court. They are innocent until proven guilty as is their legal right,” said Ward 6 Councilmember Charles Allen (D). Allen chairs the Council’s Committee on the Judiciary and Public Safety.

Lawmakers disagree on whether the pause of the trial clock is statutorily authorized or constitutional. From March 2020 to January 2021, the number of pretrial detainees in DC Jail grew 57 percent, Capital Community News previously reported in its first article in a series on the impact of the Covid-19 pandemic on the DC system of justice. This third article in the series, which is funded by SpotlightDC.org and supported by DC Witness, examines the recent ruling on the appeal against the tolling of the trial clock.

In March 2021, the DC Court of Appeals ruled on the question of extended pretrial detention during the pandemic. A majority found that detaining two defendants, who had appealed their detention past one hundred days without trial, did not violate DC Code or the Constitution under the current emergency circumstances. The view was not unanimous.

“Many” of those detained pretrial “will eventually be acquitted, have their charges dropped, or plead to charges carrying sentences that are less than the time they have already served pretrial,” wrote Hon. Judge Corinne Beckwith in her dissent.

Pausing the Clock

In its most recent order, published on March 30, 2021, the DC Superior Court extended “the period during which deadlines are suspended, tolled, and extended for all statutory and rules‐based time limits” in DC Code and Court rules until at least May 20.

The original order was issued by then Chief Judge Robert Morin in late March 2020 with authority from the Joint Committee on Judicial Administration, soon after DC announced its first presumptive case of Covid-19.

Due to public health precautions, jury trials were suspended in the city until April 5, 2021, when they resumed on a limited basis. Specifically, per the Court’s site, a maximum of one case will be scheduled for trial per day and two trials can be held per week. Bench trials, or those in front of a judge, resumed in December. However, the lengthy pause in trials due to Covid-19 has created a backlog of unresolved cases.

Jury trials are the “bread and butter of the court system,” said Attorney Paul Zukerberg. “That is what drives the system along,” he added, either because cases are tried before a jury or the impending jury creates a “firm deadline” which “encourages people to resolve the case.”

“While PDS appreciates the challenges the Superior Court faces in resuming jury trials that are safe for all participants and that meet constitutional requirements, the large numbers of PDS clients who are being held indefinitely at the jail pending resolution of their cases is staggering,” said Mitchell, who is a former PDS trial chief, a few days before trials’ constrained resumption.

Under DC’s progressive pretrial supervisory system, 92 percent of all Superior Court defendants were released pretrial in 2020. For those charged with felonies, however, the number drops to 76 percent, and 24 percent are detained.

“That is not a small number,” said Megan Stevenson, an economist and criminal justice scholar and an Associate Professor of Law at the University of Virginia School of Law, given the presumption of innocence and the cost of incarceration on defendants.

Stevenson and Sandra Mayson, assistant professor of law at the University of Georgia School of Law, released a paper in February that quantified, per the paper’s abstract, “[h]ow dangerous must a person be to justify the state in locking her up for the greater good?”

“It’s hard to quantify the harm of being uprooted from one’s life, one’s family and job and neighborhood and home and being held in a jail facility,” explained Mayson. However, this study attempts to “get a grip on how that harm compares” to the potential harm of a person committing a serious crime while released.

“The results suggest that even short periods of incarceration impose grave harms, such that a person must pose an extremely high risk of serious crime in order for detention to be justified,” they concluded in the paper.

Pretrial detention, especially during Covid-19, can impact defendants significantly. Anthony Petty, who was detained in DC Jail for the last few months of a 30-year sentence, described to CCN the potential consequences of pretrial detention, which he said include loss of employment and difficulty for incarcerated peoples’ families. Petty, a mentor with the Young Men Emerging program, witnessed the impact of detention, including the mental toll of the medical stay-in-place. Petty serves on the advisory board of organization Neighbors for Justice.

Additionally, as CCN previously reported, attorneys raised concerns that the Court’s detention of defendants for an indeterminate amount of time could increase pressure on defendants to accept a plea deal rather than wait for a trial.

Notably, however, according to Mayson, DC is the “vanguard in terms of rational regulation of pretrial detention and release.”

Most jurisdictions, unlike DC, rely on cash bail systems to determine who is held pretrial.

The tolling of indictment and trial deadlines poses both constitutional and statutory issues, argued defense attorneys who filed appeals against their clients’ detention past 100 days. One such consolidated case was adjudicated recently.

The Appeal

On Dec. 15, 2020, attorneys and judges convened for oral arguments streaming live to dozens of viewers for a consolidated case of two pending pretrial detention appeals. They met, on behalf of two defendants who were detained pretrial in DC Jail for longer than one hundred days, to consider whether the DC Superior Court’s pause of the trial clock met statutory and constitutional requirements.

The Superior Court had denied both defendants’ motions for release. Their lawyers appealed, arguing that the Court’s decision to “toll” the trial clock violated DC Code and the US Constitution’s Due Process clause.

The first defendant, represented in the appeal by PDS attorney Mikel-Meredith Weidman, had not yet been indicted in December but has been since, formally charged with sex abuse while armed. The second defendant, represented by Attorney Carrie Weletz, was indicted on 45 counts in March 2020 including possession of a firearm during a crime of violence, kidnapping while armed, assault with a dangerous weapon and burglary while armed.

The USAO-DC did not respond to a request for a comment on the appeal. It previously declined to comment on the pending case.

In an opinion published on March 11, the DC Court of Appeals ruled in a two-to-one decision that the DC Superior Court had the authority to detain the two defendants beyond 100 days.

The Ruling

The pandemic had “severely disrupted” operations in the Superior Court, wrote Court of Appeals Hon. Judge Stephen Glickman, a President Bill Clinton appointee, for the majority. The other judge siding with the majority ruling, Hon. Senior Judge Frank Nebeker, was originally appointed to the Court by President Richard Nixon.

Courts are authorized to pause deadlines during emergencies and natural disasters under a DC Code provision passed by Congress in 2011, he cited.

The opinion also noted that the emergency tolling statute allows for the pausing of any deadline and disagrees with the defense’s categorization of the 100-day limitation as not a time deadline, defined as “the latest time by which something must be done.” Additionally, extensions of deadlines are permitted in increments with “good cause,” Glickman argued.

Glickman addressed constitutional arguments by citing a previous case. The emergency tolling is not indefinite, as it will end when the emergency does, he wrote. It is “reasonably foreseeable that trials will resume in the Superior Court in the not-too-distant future,” noted Glickman, weeks before they did, for felony 2 cases previously set for trial where defendants were detained under the statute that includes the trial-clock.

Glickman also cited the facts of the cases at hand and the rationale for holding the defendants.

The DC Court’s decision to pause pretrial detention clocks is not unique. A blanket pause on formal or informal speedy trial mechanisms due to Covid-19 has been nearly universal in the US, according to Jenny Carroll, Professor of Law at the University of Alabama School of Law.

“There’s been pretty robust litigation around this,” Carroll said.

The DC Court of Appeal’s ruling was “consistent with opinions we’ve seen out of other state level appellate courts” in which defendants challenged their non-finite pretrial detention due to Covid-19, Carroll stated.

Still, Carroll pointed out pretrial detention imposes significant costs on defendants, their families, and their communities, as well as victims and the court system writ large.

The three-judge panel was not unanimous in their ruling. In her dissent, Judge Corinne Beckwith raised the consequences of her colleagues’ ruling.

The Dissent

The defendants’ detention was “unlawful,” concluded Judge Beckwith, a President Barack Obama appointee. Neither statute in question “clearly authorizes their continued incarceration pending trial,” she argued.

“The law’s drafters, some or all, may well have deemed it sensible to toll any and all discovery, indictment, trial, and briefing deadlines while having no intention of authorizing further pretrial detention of people who are presumed innocent,” wrote Beckwith, noting that “many” of them will be acquitted, have charges dropped, or plead to charges with shorter sentences than they have already served.

“Each additional day of pretrial incarceration, however, could mean the difference between a job and no job, or absence from the birth of one’s child, or the risk of being physically assaulted or contracting a deadly virus,” Beckwith wrote.

Noting that one defendant had been held for around 500 days and the other for 300 days, Beckwith pointed out that prosecutors had not filed for the 20-day extensions for good cause allowed by the statute. Nor did the other statute, allowing for suspension of time deadlines, “expressly authorize such detention,” she stated.

The majority’s logic of applying a “breadth and generality” to the emergency tolling statute, Beckwith cautioned, could lead to the extension of time limits “for any number of significant intrusions on liberty.” For instance, it could be applied to post-conviction sex offender registrations, family court’s jurisdiction, or prison sentences.

The majority opinion called this argument a “mini-parade of horribles,” examples which do “not involve deadlines involved in court proceedings.”

Additionally, Beckwith noted that the two defendants do not qualify for a trial under current plans for the resumption of jury trials, based on their charges.

There are also due process concerns, Beckwith stated in agreement with the defense. Beckwith agreed with the majority that the constitutional test “hinges on the indefinite nature of the detention,” but she disagreed that her colleague’s interpretation of the statutes hadn’t “effected indefinite detentions.”

“For an ever-increasing number of people in the D.C. Jail awaiting trials, there is only uncertainty,” Beckwith wrote.

In The Meantime

In the nearly eight months that Tom was held in DC Jail after he was arrested and before his case was dismissed, the twenty-seven-year-old man never himself appeared before a judge, he said.

Before the pandemic, even if Tom’s charges were dismissed months after his initial arrest, with the charges he faced, he likely would not have been held for so long.

The USAO-DC did not respond to a request for a comment on Tom’s case.

DC Jail “was on lockdown” because of Covid-19, Tom said.

Since the start of April 2020, the DC Jail has had a medical stay-in-place, limiting its residents to one hour a day for leaving their cell. For a large part of the lockdown, residents were not allowed outdoors.

“We barely could get on the phone, barely take a shower,” Tom stated.

In March 2020, the PDS and the ACLU of DC sued the DC Department of Corrections on behalf of residents of DC Jail, challenging conditions in the facility due to Covid-19, in the US District Court for DC. In a June 2020 preliminary injunction, the Court ordered the jail to improve detainees’ access to medical resources, enforce social distancing, and more. However, this January, the Court found the jail hadn’t properly complied with that order.

The medical stay-in-place policy was implemented to follow “the science that was recommended by the CDC and DC Health” and the preliminary injunction, said DOC Director Quincy Booth in an interview. That is, the policy was calculated in order to facilitate social distancing. DC Jail provides tablets for its residents, he also added, which has provided its residents with opportunities for certain activities that previously would have had to take place outside of the cell.

Regarding the suit, Booth said that DOC works with its partners as part of “an ecosystem of actors” and they “continue to do the things that have been outlined in the preliminary injunction.”

“Our number one goal is the safety and security of the individuals that are in our care,” said Booth. “[…]What I follow is guidance by [Director of DC Health] Dr. [LaQuandra] Nesbitt and her team, the CDC, as well as what’s in the preliminary injunction,” Booth added.

“Such punishing conditions raise serious concerns about [detained defendants’] physical and mental health, both in the short-term and over the long-term,” said Jade Chong-Smith, a criminal defense lawyer at KaiserDillon PLLC and board member at DC Justice Lab. This is not only a health issue, but also a racial justice issue, she added.

Booth disagreed with the view that DOC’s Covid-19 measures are punitive. According to a statement from DOC, residents receive physical and mental health services.

As of April 23, 262 residents of DOC facilities have tested positive for Covid-19.

According to Mayson, “there is a gaping open question of federal constitutional law, which is: what constraints does the US Constitution place on pretrial detention?”

Neither defendant in the appeal has filed an appeal en banc, meaning the case would be heard by all of the judges in the Court of Appeals, according to court dockets. Patrice Sulton, founder and executive director of DC Justice Lab, predicts motions for release based on statutory or constitutional grounds due to defendants being held past one hundred days will still be filed, though she clarified her prediction is not legal advice. This is due to the fact that changes in circumstances, including time passing and the pandemic, could alter a judge’s analysis.

Moreover, while criminal jury trials resumed on April 5, 2021 on a limited basis, the backlog that was created by the pandemic will take time to address.

“There’s simply no way even once we resume jury trials that we’re going to be able to start the clock running and try a year’s worth of cases within the hundred day time period,” said the Superior Court’s Criminal Division Presiding Judge Juliet McKenna in early December, before jury trials had resumed. To safely and competently make their way through the backlog of cases in the Court, McKenna predicted that even once jury trials resumed the timelines would remain suspended for some time.

At the moment, they remain paused through at least May 20.

The resumption of jury trials at the start of April “was done in close consultation with public health experts and reviewed by the DC Department of Health, which authorized the court to proceed with a limited number of jury trials,” said McKenna in a statement. McKenna further added that a Court survey found 97 percent of people who reported for jury duty felt “very safe” in the courthouse.

“It’s not a light switch,” said Councilmember Allen. “It’s not like we’re going to be able to just eliminate that backlog overnight.”

In the meantime, detained defendants will await movement in their case amid these delays while incarcerated.

Gavrielle Jacobovitz is a graduate of Columbia University and a freelance reporter at Capital Community News. She has previously interned with HuffPost Politics and NBC Owned TV Stations.

DC Witness, a non-profit dedicated to creating transparency in the District’s justice system, is providing data on criminal cases for this project. For more information, visit www.dcwitness.org.

This article was supported by a grant from Spotlight DC: Capitol City Fund for Investigative Journalism. Spotlight DC encourages the submission for proposals by independent journalists. For more information, visit www.spotlightdc.org.