Fresno County courts scaling back operations, putting large numbers of people in small spaces

FRESNO, Calif. (KFSN) -- The Fresno County courthouse was still busy Thursday morning even as a new emergency order started scaling back operations.

Fewer people are scheduled for court dates and fewer courthouse staff members are at work. As a result, they've reduced the number of courtrooms in use.

But people still lined up to get inside and dozens of attorneys, defendants, and court staff crammed into just a few courtrooms and into just two elevators.

"People are trying as hard as they can to keep the courtroom running and to keep people safe," said public defender Scott Baly, who wore a mask and gloves into the smallest felony courtroom, where an Action News reporter saw at least 40 people who had no way to practice social distancing. "At the same time, we still have a lot of people close together."

Courts are deemed essential, especially for time-sensitive hearings mandated by the Constitution and those that can help protect families and victims of domestic violence.

Former prosecutor Sabrina Ashjian says one of the most pressing solutions needs to be a focus on tele- and video-conferencing for attorneys, court reporters, and defendants.

"We just saw the Merced County courthouse come to a halt as it was determined during trial that an officer was exposed to COVID-19. The judge, attorneys, defendants and jurors involved in this trial are all being placed on quarantine. All of the DDAs and PDs in the courthouse may have also been exposed. This is going to start happening at courthouses everywhere as this virus multiplies which will cripple our criminal justice system. We need to act now to protect everyone in the criminal justice system and public as a whole.
Today courthouses are public gathering places where people are compelled to be, despite any shelter or public health orders put into effect. Judges, staff, reporters, interpreters, attorneys, clients, witnesses, victims, and jurors have to occupy the crowded spaces in our courthouses and they are all ordered to be there by law. These individuals are then interacting with everyone in their networks and in the public for essential activities (groceries, gas, bank, doctor appointments, etc.). This is going to be ground zero for the spread of this virus throughout our community. The number of reported cases in the United States jumped from 6,000 yesterday to 10,000 today. Further, this only covers reported cases and we know there are so many more that are going undetected with asymptomatic individuals. The President said this would last until August and public health officials are saying this will last the next 12-18 months so we need to develop solutions that will accommodate the dangers of today through the future.

The solution to the immediate problem is space, which our courthouses have but are not using. In Fresno County there are one dozen trial courtrooms that could accommodate cases from the calendar courtrooms, where the majority of cases flow into. Rather than choosing this solution Fresno and some other counties, likely in an effort to protect court staff from exposure, are crowding even more individuals into fewer courtrooms. This is shortsighted because all of the judges and staff will be at risk as this virus spreads through the legal community. We need to be doing all we can to spread people out to minimize social contact and increase distance between all case parties. Every courtroom should be handling just a handful of cases. This can be done if every courtroom is open and if cases are staggered hourly rather than having the general masses all arrive at 8:30 am. This crowd of hundreds all trying to filter through security, up the elevators, and into a couple of rooms at one time is the worst system imaginable. This spacing and staggering is the only way to halt the spread of this virus.

In addition one of the most pressing solutions needs to be a focus on tele- and video-conference for all parties involved including attorneys, reporters, and defendants. This technology is currently utilized in our civil court, and in many civil and criminal courts throughout the state and country. All parties-judges, attorneys, reporters and inmates could appear remotely. Telephonic appearances could be implemented immediately. More extensive technology, such as that allowing for communication with the jail, could be installed now. This technology does not need to be installed in every courtroom, but could be done in just a couple of designated courtrooms. Further, one area could be set up in the jail to accommodate this. This would allow the essential service of criminal justice to be administered without any risk to individuals and the community.
The next solution needs to involve continuing cases. We are at a critical tipping point in Fresno where we could contain the virus and stop the community spread. For the next couple of weeks we should be continuing everything possible to achieve this. The Fresno Superior Court has asked for, and received, the authority to extend time limits that are mandated by law. Though the authority has been granted by the Chief Justice of the Supreme Court, implementation has been sporadic and inconsistent. While the defense bar must, in accordance with their oaths and professional obligations, advocate for their client's speedy trial rights, it is within the court's power to extend out many of the cases beyond their usual dates based on the emergency facing the courts and public. This solution also involves all of the justice partners working collaboratively to release those in-custody defendants who pose no public safety risk so that defense attorneys are able to continue cases without risk to their duties.

California is among the states that has a particularly vulnerable court community. Unlike other states that follow constitutional time limits on cases, California has chosen to create separate statutory time limits in which cases must be heard. While this assures the rights of defendants during normal state operation, during times of crisis this creates crowded and dangerously contagious courtrooms. This ties the hands of the Chief Justice from doing more to shut the entire court system down.

The coming week and months demand legislative action from our government to address this. The legislature should convene in emergency session to write emergency legislation which would halt some of our current statutory rights, deferring to the more flexible constitutional speedy trial rights, will give courts the flexibility to address the massive influx of COVID-19 cases it is likely to be dealing with in the coming weeks and months.

As Dr. Fauci stated in one of his daily press conferences, what we see today is likely two weeks behind where the virus actually is. We cannot wait to see how bad the damage is before taking action. In Fresno County, and in courthouses across the nation, judges, attorneys, and legislators need to be developing the processes and tools that will assure the constitutional rights of defendants while also protecting the public. It can be done, provided that our leaders step up and lead with the willpower and character needed to make hard choices."
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