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The State Of Speedy Trial During The COVID-19 Pandemic

| May 11, 2020 | Criminal Defense |

The COVID-19 pandemic has turned the world upside-down, and the criminal justice system is no exception. Judges statewide face the difficult challenge of ensuring access to the courts while also taking appropriate steps to slow the spread of the novel coronavirus. The question of whether to continue to hold jury trials — and how to do so safely and responsibly — has significant implications for anyone accused of a crime.

Shortly after the pandemic began, the Ohio Supreme Court issued Guidance to Local Courts recommending that all non-essential proceedings be continued[1]. The Guidance defined “essential proceedings” as those in which “relief is necessary to protect a person’s health, safety, housing, or to prevent some other imminent, serious harm that cannot be remedied if allowed to occur.”

In most cases, criminal jury trials do not meet this definition of “essential.” Furthermore, jury trials carry additional risk because the process of selecting a jury necessarily involves a large public gathering that may violate the Department of Health’s prohibition on gatherings of more than 50 individuals[2]. Attorney General Dave Yost opined that “[a]lthough tolling speedy-trial time by suspending jury activity is an extraordinary step, it is lawful — and responsible — to do so during a pandemic emergency.”[3]

What about speedy trial?

Although suspending jury trials might be responsible from a public health perspective, the constitutional rights of the accused should remain an important part of the conversation. The right to a speedy trial is guaranteed by both the Federal and State constitutions as well as Ohio law. Unfortunately, in response to the COVID-19 pandemic, the right to a speedy trial has already been significantly curtailed.

The statutory right to a speedy trial is codified at R.C. 2945.71 and requires that a case be brought to trial within a specific number of days. In response to the COVID-19 pandemic, the Ohio General Assembly passed House Bill 197[4] (effective March 27, 2020) which tolled statutory speedy trial in all cases set to expire between March 9, 2020 and July 30, 2020. For a significant number of criminal defendants, H.B. 197 effectively eliminated the statutory right to a speedy trial.

On the other hand, the Constitutional right to a speedy trial remains alive and well. Unlike the statutory right, the Constitutional right does not require that a case be brought to trial within a specific number of days. Instead, both the U.S. Supreme Court and the Ohio Supreme Court have identified four factors that courts should consider when determining whether a trial delay violates the constitutional speedy-trial guarantees. They include: 1) the length of delay, 2) the reason for the delay, 3) the defendant’s assertion of his right, and 4) prejudice to the defendant[5].

Is tolling Speedy Trial during the pandemic constitutional?

The Ohio Attorney General has already concluded that the delay caused by the COVID-19 pandemic is constitutionally justifiable:

The question, then, is whether a pandemic emergency is a valid reason for a delay. For the reasons discussed above, it is. It poses a health threat to jurors, court personnel, and defendants themselves. As a result, it poses a public-health threat to the entire community in which jurors, court personnel, and anyone else in the courtroom live. The nature and requirements of jury service means that this threat cannot be mitigated or reduced by implementing the social-distancing measures that health experts have recommended.[6]

Initially, the Supreme Court of Ohio appeared to agree with the Attorney General that non-essential in-person hearings created an unacceptable risk to the community. On April 16, 2020, at the request of attorneys stating that in-person hearings put them, their clients, and the public at risk, the Supreme Court ordered the Medina County Domestic Relations Court to stop holding all in-person, non-emergency hearings[7][8].

Then, on April 27, 2020 — only 11 days later — the Court reversed course and allowed the Ashland County Common Pleas Court to hold an in-person criminal jury trial. Just like in the Medina County case, the defendant argued that holding a jury trial would put him and the community at risk. This time, however, the Supreme Court disagreed and allowed the trial to go forward as long as “appropriate social distancing is maintained throughout the trial both inside and outside the courtroom[9].”

What can we make of all of this?

By allowing the Ashland jury trial to go forward, the Ohio Supreme Court has undermined the constitutional speedy-trial arguments that would justify the suspension of jury trials during the pandemic. Although Attorney General has argued that the “nature and requirements of jury service means that this threat cannot be mitigated or reduced by implementing the social-distancing measures,” the Ohio Supreme Court has now ruled that jury trials may be held during the pandemic as long as social distancing is observed.

A defendant wishing to assert his or her constitutional right to a speedy trial would be right to ask: “If a jury trial can be held in Ashland County, why not in my case?”

The Ohio Judicial Conference is asking similar questions. Currently available on the Conference’s website is a memorandum titled Continuing Jury Operations[10], prepared by the OJC Jury Service Committee. The document prefaces by stating that it is “a work in progress and will be updated in throughout the coming weeks.” In its current form, the OJC memorandum states that “[t]he work of juries, both grand and petit, must go on and we hope that this document helps courts continue the fair administration of justice — safely — in these trying times.”

To increase support for holding jury trials during the pandemic, the memo encourages judges to “try to get a story in local papers about the heroic jurors that possess the civic mindedness and moral courage to report to jury duty during a difficult time.” Judges are also encouraged to “[c]reate a statement about the long tradition of jury trials and how continuance of jury trials is inextricably linked to the continuance of our society.” Finally, judges are provided with sample orders to use as templates in structuring social distancing policies during jury trials — including an order from the Ashland County Common Pleas Court.

Although the COVID-19 pandemic continues to disrupt life as we know it, the conversation will inevitably turn to when and how “normal” life can resume.  Recent statements from the Supreme Court of Ohio and the Ohio Judicial Conference provide strong support for the position that jury trials are not only possible during the pandemic, but essential to the functioning of our society.  Furthermore, if jury trials can be safely held during the pandemic, it follows that undue delay in holding jury trials is not constitutionally justifiable.

Individuals accused of a crime should not assume that their right to a speedy trial is a thing of the past. Criminal defendants can — and should — cite the examples of Ashland and others to assert their constitutional rights and demand swift resolution to their cases.

[1]GUIDANCE TO LOCAL COURTS, COVID-19 Public Health Emergency, https://sc.ohio.gov/coronavirus/resources/localCourtGuidance03.20.20.pdf (updated March 30, 2020).

[2] https://www.wksu.org/post/coronavirus-orders-issued-ohio#stream/0

[3] Ohio Attorney General Opinion No. 2020-002, https://sc.ohio.gov/coronavirus/resources/2020-002OHAG.pdf

[4] House Bill 197, https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-197

[5] See Barker v. Wingo, 407 U.S. 514 (1972); State v. Selvage, 80 Ohio St.3d 465, 467, 1997-Ohio-287.

[6] Ohio Attorney General Opinion No. 2020-002, https://sc.ohio.gov/coronavirus/resources/2020-002OHAG.pdf

[7] https://supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-ohio-1489.pdf

[8] https://www.abajournal.com/news/article/state-supreme-court-orders-judge-to-stop-holding-in-person-hearings-in-most-cases

[9] http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=223014.pdf

[10] Continuing Jury Operations, http://www.ohiojudges.org/Document.ashx?DocGuid=68b50fa1-ca43-406a-bc65-54ab7a65610a (updated May 7, 2020).

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