S--t Public Defenders See: The Great Covid-19 Jury Charade

In response to the pandemic, one New Mexico County convened grand juries to indict, and eliminated preliminary hearings and jury trials. The result? More indictments, fewer speedy trial rights

When the world ground to a halt a year ago thanks to Covid-19, Americans quickly worried over the important questions. Will we still get to go to basketball games? Will McDonald’s only be Drive-Thru now? Do manicurists deliver?

The parts of the country that were already out of sight to most receded further from view. Covid-19 struck at the elderly in rest homes, but the population that took perhaps the toughest hit was behind bars. By June, the rate of infection in America’s jails and prisons was seven times that of the general population. By this month, 612,000 cases had been reported in correctional facilities, with at least 2,700 deaths among prisoners and corrections officials.

In news reports, we mostly read that prosecutors and corrections officials were trying to find ways to reduce the risk of disease both in jails and in court, another institution that traditionally required people to congregate indoors. Many districts suspended jury trials indefinitely, a serious problem for those awaiting trial, and one that raised a question: if officials were too worried about the safety of jurors to schedule trials, what did that mean for grand juries?

In other words, was the pandemic too dangerous for speedy trial rights, but not dangerous enough to slow indictments? Were there places where jury trials were canceled, but grand juries were not?

In some select jurisdictions across the country, the answer appeared — and appears — to be yes.

“It highlights the way in which the pandemic is being used selectively,” says Scott Hechinger of Zealous, a national public defender advocacy organization. “In some places it’s used to perpetuate the system, in some places, to make it worse.”

The significance of jury trials is obvious. Defendants have a right to them, and they also have a constitutional right to a speedy trial, i.e. the government is not allowed to charge a person and leave them under suspicion indefinitely.

Cases must be adjudicated in a reasonable period of time. In some jurisdictions, the satisfaction of speedy trial rights means getting a defendant to trial within a concrete number of days, though the calculation is often complicated (in The Divide, a trick used by New York prosecutors to legally keep defendants in jail far beyond the supposed limits of speedy trial rules is detailed).

During the pandemic, however, jury trials were suspended in many jurisdictions. In some of those places, it was understood that speedy trial rights simply had to be put on hold until officials could, as Donald Trump would say, figure out what the hell is going on. This left a lot of people who had not even been convicted of a crime but couldn’t afford bail in a purgatory-like state of open-ended detention.

However, official concern for jury safety seemed limited in some places to trials. Police continued to arrest people and prosecutors continued to use grand juries to indict.

“The speedy trial rules only worked in one direction,” explains Hechinger. “Officials basically said: because we’re still arresting people at the same rate and need to keep prosecuting them, we’re just going to have jurors risk their lives in a way we said we really cared about, in order to have them vote on new indictments.”

Grand juries are secret proceedings, usually consisting of 16 to 23 grand jurors, whose purpose is to investigate crimes and, ultimately, decide whether or not to indict. Every state has provisions for using grand juries, but only about half of them do. How states and localities use grand juries varies. In New York, for instance, grand juries have to approve all felony indictments. In other jurisdictions, officials can choose between grand juries and preliminary hearings to secure indictments.

The rub is that grand juries are essentially a home-court advantage for the prosecution. The rules vary, but a brief list of some of the prosecutorial advantages you might find include: the use of hearsay evidence, no right to appear for defendants unless invited, no right for defendants to present evidence on their own behalf, no judge presiding, secrecy, etc. For this reason, the notion that a grand jury will “indict a ham sandwich” is widely understood by prosecutors and defense counsel alike.

Conversely, preliminary hearings, which are overseen by a judge and allow the accused to introduce evidence, are much preferred by defense counsel for obvious reasons. However, in the jurisdictions where there is a choice between prelims and grand juries, the District Attorney’s office often has discretion over which to use.

What has that meant during the pandemic? Anecdotally, public defenders and advocates like Hechinger have heard many tales of officials using the disease to tilt the field in their favor. In Oakland, the Alameda Superior Court System is trying to use Covid-19 to institute a change rejected two years ago following a public outcry, one that would open the jury pool for cases involving Oakland defendants to all of Alameda County (effectively, this would put more black defendants in front of more white jurors). In some places, recognition by defendants that jury trials might be delayed indefinitely is leading to more guilty pleas.

In one particular jurisdiction — New Mexico’s Twelfth Judicial District, a mostly rural area encompassing Lincoln and Otero Counties, and including the city of Alamagordo — defendants at least for a time had the worst of all worlds: no jury trials, no preliminary hearings, and full steam ahead for grand jury indictments.

According to Matt Chavez, District Defender for the 12th, and Dayna Jones, Supervising Attorney for the Alamagordo Public Defender’s office, the New Mexico Twelfth is the poster child for the dualistic approach to jury selection. Public defenders around the country share horror stories, but this little enclave of New Mexico manages to raise eyebrows even among those who think they’ve heard most everything.

“I'm not just saying this, but I don't think that anyone is dealing with it like we are here,” says Jones. “It's terrible when you talk to someone, they're like, ‘Oh my gosh, it's bad, but at least it's not like it is for you.’”

TK talked with Chavez and Jones about their experiences. The District Attorney’s office has not yet responded to requests for comment.

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TK: What exactly was the situation in the twelfth with jury trials and grand juries?

Jones: Our jury trials were paused from... what was it, November until February 8th?

Chavez: It was from March to June, and then from November to February 8th.

Jones: We've resumed now, and we’re like hell on wheels doing trials. I did two felony trials this week… Our chief judge has said we're doing trials every single day now, to catch up, which is another completely another problem for a different day. (laughs) Do you want to talk about attorney burnout? I'm not sure how we're supposed to do felony trials every day for months to catch up on the backlog.

But before that became the issue, I just found it extraordinarily problematic and hypocritical that we were bringing people in for grand juries while we had no jury trials. We could indict somebody, but we couldn't acquit them. We couldn't get them in front of a jury for an acquittal.

Also, they just stopped doing preliminary hearings, which I think are a really valuable part of the process. So there was the health portion of it: why are we bringing in people for grand juries when it's unnecessary? And then there was also the due process part of it. Why are we just completely blanket canceling these proceedings for no reason at all?

TK: So not only did they not halt grand juries, they halted preliminary hearings?

Jones: Everything is going to grand jury. Everything. Whereas most districts are going the opposite. Most districts stopped doing grand juries, because you don't want to bring people into a room unless it's necessary. But our district, the 12th, we stopped doing jury trials, and all the bind-overs were done by grand juries.

TK: It’s usually understood that prosecutors have an advantage with grand juries, as opposed to preliminary hearings. Do you feel this was part of the rationale?

Chavez: Yeah, definitely. Preliminary hearings are preferred, because prelims are like a little miniature trial, and the defense side has due process. We have the right to cross-examine witnesses. The rules of evidence do apply to those hearings. We do get discovery disclosures, and we get to test the prosecution's case early, and so do the prosecutors. They get to actually test the law enforcement account of what happened, and the law enforcement investigation.

A grand jury, as the saying goes, can indict a ham sandwich, because they’re basically secret proceedings, run by the prosecution… The grand jury is its own constitutional animal, and even the court has limited authority to intervene in a grand jury. But it's just tremendously easy to indict someone through a grand jury, especially if you have like our district, a chronic work overload crisis at the public defender's office. And so it's just an easier path for the prosecutor to get these indictments and keep the prosecutorial machine going.

TK: Who decides whether to go to a grand jury or to a preliminary hearing?

Chavez: It is entirely up to the prosecutor.

TK: If the advantage is so great with a grand jury, why would a prosecutor ever choose a preliminary hearing?

Chavez: The bottom line answer is because it’s a more accurate process for examining the evidence, because both of these are probable cause hearings, and so the prosecution is attempting to establish that there’s probable cause that this criminal offense occurred, and that the person that's being accused is the person that allegedly perpetrated this alleged crime.

A sensible prosecutor will say, "My job is not just to win, my job is not just to incarcerate, but it is actually to do justice." And so if law enforcement brings me a case that’s garbage, it's easier to throw out the garbage in a prelim than in a grand jury.

Jones: A grand jury is a lot more reasonable for instance in sex cases, where you have vulnerable victims. You don't want to put them on a stand in a prelim, maybe that's really traumatic and unnecessary. Or, cases where you have child victims, same exact thing. I think there’s a place for the grand jury proceeding, and that's the kind of place.

But you have an embezzlement-of-a-motor-vehicle case, that's not necessary. You can bring that victim up, and bring the cop up, and you go through and you find out whether or not the elements of the crime are even legitimately there, in a prelim. And before, a lot of times, the prosecutor would be happy to get rid of their garbage cases also, through the filter of a prelim.

TK: Has this dynamic resulted in some people staying in jail longer, awaiting trial longer than they normally would? Are people getting sick?

Chavez: One of the scary things is that we don't know how many people are getting sick, being hospitalized, or dying because of these jury trials. And I'm thinking mostly about the jurors themselves, because they go and do the trial, a few days later they get symptoms. We don't have any contact tracing or follow-up, and so I try to tell the judges about this. This is one of those spooky, semi-imperceptible concerns that we try to raise with the court. So I guess the basic answer is, we don't know.

Jones: The local newspaper, the Alamogordo Daily News*, recently did a story that involved how we just can't even get the records from the Otero County Jail. We're trying to find out if our clients have Covid-19 in order to get them out, or limit our contact with them, or do whatever we need to, to advocate for them medically, and the jail refuses to give us their records. That reporter actually did an IPRA request [an “Inspection of Public Records Act” request in New Mexico is similar to a FOIA request] to the jail to try to find out how many people have been infected since they've been there, and the jail told her three times, three times — and she actually put this in her page — that they have no access to the records.

They don't have records of who's contracted COVID and who hasn't at the jail, which I believe is not true. I do not believe that the jail is not reporting positive COVID tests to the health authority that they should be. I think they don't want to share that information. But because they don't share that information, we can't protect ourselves. We go to the jail, we talk to people. We're having trials right now, so it would be really nice to know what's actually happening, but we don't. We just flat out don't.

TK: Does the 12th District have a relatively high volume of cases?

Chavez: We do more trials than Albuquerque, and we have a fraction of the population.

TK: Is that because of a higher crime rate?

Chavez: Just an antiquated approach — where they're just going after indictments. They don't care about treatment. The jails don't have treatments. It's like a throwback to, I don't know, some other era. I don't even know what era to pick.

Jones: There's a very high meth issue here. We're a very poor area, so you get all that quality-of-life stuff that comes along with it, which is sad, because then we have habitual offender time here, so you get picked up and convicted of meth a few times, then all of a sudden you're looking at eight years just in habitual offender time, just because you're an addict.

TK: And the idea is, they push as many cases as they can?

Jones: The trial I took yesterday was a fourth-degree felony. The guy had borrowed his roommate's car. He was supposed to bring it back that night, he didn't. The roommate told him he'd give him two hours to bring it back, called the cops 15 minutes later. They picked up the car in like 30 minutes, and that was it. That was the case.

So I asked the complaining victim on the stand, just because I knew they didn't want to be there, I said, "And you didn't even want to press charges in this case, did you?"

And he said, "No." And I said, "You didn't even want to testify?" Again, "No." Then it was, "You don't even want to be here, but you're here because the DA subpoenaed you, isn't that right?" "Yes."

And I mean, we won in that case, but my guy was in there for nine months.

TK: What happens to speedy trial rules during the pandemic?

Chavez: The running theory among all attorneys, all criminal defense attorneys and prosecutors, is that during the pandemic, the Supreme Court, or the District Court and then the court of appeals, as the argument moves its way up, will be analyzed, and they will say, "It was the pandemic. It was like an act of God. We're not going to say that the defendant's right to a speedy trial was violated by the court or the prosecution, or the defense. We're just going to say it's a wash."

So it's almost like the rules took a pause. It's not actually written anywhere, but that's what people anticipate, because we’re going to argue this. I mean, there are cases that have been delayed an additional year, that were already delayed a year or two, or three. So it's a little bit complex, but it's going to be a fight.

TK: How will they sort this out?

Chavez: It's very complicated because there are a lot of cases on it, but the presumptive trigger for speedy trial analysis is basically when the court says, "We will presume that the defendant's right to a speedy trial has been violated is 12 months for a simple case, 15 months for an intermediate case, and then 18 months for a complex case." And then they define all that stuff. They unpack it all.

TK: So there's an unspoken thought that all those analyses are going to go out the window with this time period?

Chavez: Yes.

TK: What would you say to the argument that, “Well, all of this is necessary, to put criminals away!” Some people will say, hey, why not indict as many people as possible?

Chavez: We have this enormous prosecutorial punishment machine, almost like an automated terminator machine. But they lose all the time. We really do have way too much success than we should have at trial. The kind of anecdotal number people throw out is that for prosecutors who take cases to trial, they should be winning 70%, 80% of the time. But we've crunched the numbers now for three years in a row, and we win either more than half, or somewhere around half, of the cases that we take to trial.

So truly, these are garbage cases. And it's wasteful. The taxpayers don't know about it. They're just kind of going about their day, living their lives, but if they knew just the amount of waste that this style of prosecution and law enforcement creates, I think they would be really shocked. Especially now.

* The Alamagordo Daily News shares a legal reporter with the Las Cruces Sun-News, which is why the screenshot indicates that the Sun-News asked for the information. The Alamagordo paper ran the same story.