Access to Justice: Are your constitutional criminal rights protected during a pandemic?

constitutional criminal rights protected

How Coronavirus is impacting criminal court proceedings in Coconino County.

constitutional criminal rights protected


UPDATED: June 4th 2020

Throughout the entire coronavirus stay-at-home order, courthouses in Arizona and locally in Coconino County have remained open. Government in general is classified as essential but the courthouses go a step further because they are our access to justice in the United States. The Coconino County courthouses take their instructions from a statewide judicial administrative order but the chief administrative judge for each county also has authority to further mandate how courthouses in their jurisdiction will function during coronavirus. The judges in Coconino County have individual discretion to decide what proceedings are going forward, which ones are postponed, and whether parties and their attorneys may appear in person or virtually. They are under a new administrative order from the Supreme Court that is statewide. No jury trials are to happen before June 15th at the earliest. Realistically, as of this moment, no jury trials will happen until July at the earliest because the clerks office has to send out jury summons for a date 3 weeks in advance and as of today (June 4th) they have not sent any out.

Many Coconino County court proceedings are still happening, at least the criminal ones are – arraignments, initial appearances, preliminary hearings, bail reviews, sentencings, violation of probation hearings, fugitive from justice hearings, and pretrial motions hearings specific to each individual case. If you are charged with a crime, you have the right to be present for all of these proceedings so you may appear in person if you demand it or appear virtually. Bench trials where the judge, not a jury, decides whether the County Attorney has proven beyond a reasonable doubt that the person charged committed the crime alleged are still happening. What is not happening at least through May 31st are jury trials. The courthouse does anticipate the prohibition of jury trials being extended even longer into the summer. 

The grand jury is how the County Attorney’s Office charges more serious criminal offenses and that too was impacted by coronavirus. The grand jury was paused mid-March until the first week of May. This past week it was back in session and some indictments were handed down. This particular grand jury session has been extended and will be called upon to hear evidence and determine charges on a week by week basis. 

What the Coconino County Courthouse is doing to protect workers and citizens.

Each courthouse is tasked with balancing access to justice with protecting employees, parties, attorneys, and any members of the public who wish to attend court proceedings. While courthouses always have maximum occupancy restrictions due to safety and fire concerns, there are currently additional limitations on the number of spectators permitted in each courtroom at a time to preserve social distancing.  Here locally in Flagstaff, masks, gloves, and hand sanitizer are available for use by employees and any persons entering the courthouses.  Employees have also been shifted to an alternating telecommute/in person work schedule to minimize the number of employees working together to also preserve social distancing. A cleaning service has been employed to complete a thorough cleaning of the entire courthouse every evening for everyone’s protection. Furthermore, anyone who is not feeling well is asked to do their business online if possible. 

Attorneys are asked to make court appearances on behalf of their clients or themselves by pleadings and/or telephone/video conference when possible.  Each judge has the full discretion to grant telephonic/videographic appearance for any party. A person charged with a crime has the right to be present at every proceeding in their case, so the courthouse is equipped with video conference equipment so that the accused can see and hear the entirety of the proceedings if they do not waive their appearance.  With exceptions, most criminal defendants who are in custody at the jail are appearing via video conference from the jail and are not being transported to court. The parties have been encouraged to limit the number of witnesses they call where possible for all proceedings where testimony is needed.  Additionally, the jail is equipped for those being held in custody to have private telephonic meetings with attorneys because the right to counsel still takes priority during this time.

Your constitutional rights that Coronavirus is threatening.

The United States Constitution and Arizona State Constitution afford numerous rights to those charged with a crime. Everyone needs a defense attorney to help them understand what their rights are and how to protect them. Many rights are WAIVED if not DEMANDED. The courthouses have announced they are balancing the safety of everyone and preventing the spread of coronavirus with the efficient administration of justice. Despite these stated goals, many of your constitutional rights are being violated and you need a criminal defense lawyer to help protect you.

The first is the Right to Due Process which essentially means there must be a fair application of the United States laws and Arizona law and, thus, a fair trial before you can be punished, have your property taken away, or be imprisoned. This is currently being impacted by coronavirus because the courts have been shifting how they adjudicate criminal cases. It is of course a moving target for everyone regardless of industry to try to adapt to coronavirus, but there does not seem to be a clear equal application of how court proceedings are being handled. Each judge has the discretion to decide what proceedings are happening and whether they happen in person or virtually.

Next is your Right to Confrontation, which means you have the right as the accused to confront the witnesses against you that claim you have broken the law and to ask them questions under oath. This has historically meant face-to-face confrontation in a courtroom. Cases where this right was violated by having a witness testify via video have been overturned in many circumstances. Considering that the vast majority of pretrial hearings are currently being conducted virtually due to coronavirus, this is a violation of your constitutional rights. During pretrial hearings a judge will often decide if your rights were violated by the police. If they were violated that evidence gets dismissed and a jury will never hear it. However, if the judge finds your rights were not violated then a jury can hear that evidence. Oftentimes, whether your case goes to a jury trial or gets dismissed is decided at the pretrial motions stage which is why it is so important. When a judge is tasked with assessing the credibility of a witness to determine a crucial piece of evidence in your case – do they have a bias, a motive to lie, are they inaccurate, have memory problems, etc. – having that person testify live where the judge can hear them, see their affect, and be subject to cross examination by the defense attorney to test them to assist the judge in making that decision, is crucial. So much is lost when it is done virtually. Not to mention technological glitches and delays in hearing/seeing someone virtually. As such, the Right to Confrontation is one of the most important constitutional rights in the United States.

Another right which is being impacted is the Right to be Present for all criminal court proceedings. In the United States we do not have secret trials where someone is convicted and imprisoned and they find out later that their trial took place without them. You have the right to be present physically for every single proceeding unless you waive that right. Aside from your right to be present, there is an equally important constitutional right for the public, including the press, to attend court proceedings. For these reasons the courthouse has remained open but limitations on the number of people allowed inside each courtroom are in place. Similarly, the Right to Present a Defense is being tampered with. The courts are putting pressure on attorneys to limit the number of witnesses they subpoena and call testify in all hearings during coronavirus. 

Another major right being impacted by coronavirus is your Right to a Speedy Trial. With exceptions, the United States Constitution requires that the government bring your case to trial within 180 days of you being charged. Failure to do so can result in dismissal of your case but this is one of the rights that is on you to demand. In addition to the United States Constitution, there are criminal procedure rules in Arizona that guarantee a speedy trial. One is Rule 8 of the Arizona Criminal Procedure Statute and by administrative order, this rule is waived during coronavirus. How exactly a criminal accused rights can be simply “waived” without them waiving those rights will be litigated in the future as this is not how our system of justice is designed. 

There is perhaps nothing more American, than the Right to a Trial by Jury, to have your case decided by your peers from your community.  If you are charged with a crime, with the exception of very minor charges, you have the sole right to decide if a judge or jury determines whether you are guilty. Since mid-March through at least the end of May 2020, no jury trials are happening at all. This means that if you wish to have your case heard by a jury, there is no option except for the court to postpone your case. Demanding a jury trial and demanding a speedy trial right now are crucial because the longer you are denied these rights, the better the chance of your case being dismissed due to constitutional rights violations. 

What to expect in the coming months if you or a loved one has a pending criminal case. 

If you have a criminal case pending in Arizona, you are likely to experience significant delays. It is anticipated that once the courthouses return to being fully operational and impaneling jury trials again, there will be a significant backlog of cases.  What does this mean for you realistically? It depends how many cases the courthouse will feel is safe setting on the same day in the same courtroom. So, either you will show up and there will be an extraordinarily large number of cases to adjudicate in a day, which means many will need to be postponed again because there are a set number of judges, or what seems more likely is that the courthouse will restrict the number of cases set each day and your case will be set for trial months from now. 

While current administrative orders are impacting your right to a speedy jury trial currently, it is crucial to reaffirm your constitutional rights once the order is lifted. It is the government’s responsibility to bring your case to trial quickly.  Failure to do so can result in your case being dismissed in certain circumstances. Judges are currently tasked with assessing the priority of cases. Having charges hanging over your head is not a way to live. Hiring a defense attorney to protect your constitutional rights has never been more important than now!

Our team of dedicated trial attorneys at Antol & Sherman, PC, have more than 60 years of combined legal experience and a strong track record of providing successful legal counsel. We have been practicing criminal, family and divorce, drug and DUI, and accident law in Flagstaff, Arizona and surrounding northern Arizona cities including Camp Verde, Sedona, Williams, Holbrook, Winslow, Cottonwood, Mayer, Seligman, Kingman, Page, St. Johns and more for over 30 years. Antol & Sherman, PC, and their staff of lawyers would love to sit down and discuss your legal needs. Please call us at 928-241-6339, stop in today at Antol & Sherman, PC, 150 N Verde St Suite 102, Flagstaff, AZ 86001, or visit us at flagazlaw.com.

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