Editorial: COVID-clogged courts are failing the accused 



In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. – Sixth Amendment, U.S. Bill of Rights 

Even pre-pandemic, American justice was not known for its swiftness. Throw in a highly contagious globe-trotting virus that made gathering in a courtroom a public health hazard and the case backlog only grew larger.  

Moreover, safety precautions, disruptions and general confusion have further eroded public access to court operations funded by that very public, members of which may have their lives and livelihoods tied up in legal limbo. The Hancock County Unified Court’s October docket was canceled due to a shortage of judicial marshals, a continuing problem around the state and particularly in Calais, according to District Attorney Matt Foster. He said the court is relying heavily on Zoom. 

Last week, the Maine Judicial Branch announced effective Monday that the preferred format for most court proceedings in all Maine trial courts will be telephone or video. Unless a judge orders otherwise and until further notice, dispositional conferences, non-testimonial hearings or conferences and other important court business will be done remotely. In the announcement, court officials cited safety concerns as well as the fact that many attorneys and litigants have competing obligations and court appearances. In this era of COVID catchup, many lawyers have found they need to be in two places at once. 

Still, something profound is lost when members of the public cannot just wander into a courtroom on any given day and observe the proceedings in-person. How is it we can run airports, but not our courthouses? The stops and starts on the way to a full reopening have been maddening for judges, prosecutors, defense attorneys and defendants.  

A near complete halt to criminal trials last year contributed to a backlog of 26,600 felony and misdemeanor cases statewide as of May 2021 — an increase of more than 56 percent from just before the pandemic began, according to The Maine Monitor. 

The shortage of marshals, who provide courthouse entry screening and courtroom security, is further gumming the works. The state is hiring. Deputy marshal wages start at $19.17 an hour, apparently an insufficient sum in the current job market. 

Those awaiting their day in court before a jury of their peers may feel mounting pressure to just settle and be done with it even as they protest their innocence. The accused — presumed innocent — sit behind bars or are out on strict bail conditions, waiting. 

Barker v. Wingo, 407 U.S. 514 (1972) found that a defendant’s constitutional right to a speedy trial cannot be established by any “inflexible” rule. Instead, the merits of each case should be “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.”  

These days, the balance is not in anyone’s favor. Throwing up our hands and saying, “Well, that’s a pandemic for you” or “That’s the new normal” means discarding our most basic civil liberties. Unacceptable. 

This past summer, the state Appropriations and Financial Affairs Committee reached a compromise to add $18.5 million to the Maine Commission on Indigent Legal Services, which should bolster the state’s strained public defender system. Meanwhile, the judicial branch must step up efforts to recruit marshals so that courtrooms can be reopened safely and stay open. Temporary solutions such as contracting with law enforcement agencies for courthouse coverage or even calling in the National Guard should be explored. 

The pandemic has taken too much from Americans. It must not take justice too.  

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