COVID and the courts

JASPER COUNTY — Patience is a virtue with the county court system these days.

In order to address the COVID-19 guidelines set by the federal and state governments, health departments and the CDC, courts have had to take take it slow when hearing court cases, both big and small.

The smaller criminal, juvenile and welfare cases that involve quicker decisions are being heard, but because people are required to stay six feet apart for safety reasons and only a limited number of people are allowed in court rooms, hearings take longer, according to Jasper County Circuit Court Judge John Potter.

“Instead of having 35 people come in at nine o’clock and work through the whole list and get done at 11 or 11:30,” he said, “we’re now bringing in four people at a time per half-hour to space them out.

“The cattle call days of putting a bunch of people in a room and running through a list, those days are done for the near future. There’s only so many hours in the day.”

Jasper County’s courts sent a plan to reopen to the Supreme Court at the end of the June, which was approved. Those plans are expected to go into effect on Aug. 15, but Gov. Eric Holcomb’s decision to stay in Phase 4.5 until the end of August in his plan to reopen the state may delay the courts’ plans as well.

The Supreme Court set time limits and statute of limitations for court cases in March. Those were set to expire on Aug. 15, but nothing is guaranteed during a pandemic.

“This isn’t our first plan to reopen for Aug. 15,” Potter said. “Things change so fast with either the governor’s proclamations, federal ones or the Supreme Court. The circumstances in the world change so fast that the plans before have been canceled. This current plan was made four weeks ago by the Supreme Court, and now when I think about it, we made a plan on June 29 for Aug. 15, that looks silly now in hindsight. You can’t make a plan for Aug. 15 on July 29 the way things are going right now. That’s what’s very frustrating.”

With cases continuing to pile up, it also takes longer to schedule a hearing.

“There’s a saying that justice delayed is justice denied. Well, we’ve been delayed for nearly four months now. I don’t like making people wait, but in this case, I don’t know what options we have,” Potter said.

When courts reopen to all court cases, judges will face a backlog of civil and small claim cases that were put on the back-burner by order of the federal and state governments.

That includes evictions and foreclosures, which have not been heard since March when the COVID virus began running rampant.

“Nobody has been able to evict anybody since March and that’s still in effect. The same with foreclosures,” Potter said.

“Lots of stuff is piling up in the court system because of those type of orders that ban evictions and foreclosures. The civil stuff has been piling up also. We haven’t been doing much family law unless there’s issues with children or harm is involved. Those are getting heard. Protective order-type things. Beyond that, things haven’t been heard and it’s the plan to hear those cases again after Aug. 15 providing we’re on track.”

When courts do open up, it will look much different than what people are used to, Potter added. There will be less people in the court rooms because of social distancing so officials plan to discourage family members and friends from coming to the courthouse.

“Those days of having a court room full of people, those days are gone for a while,” Potter said. “Even when we reopen, we’re still going to be limited to the number of people who can watch a trial. It’s going to be first-come, first-serve. We’re only going to have eight or 10 spots six feet apart in the court room.”

Putting court cases on the Zoom platform, which allows people to listen to the proceedings from their laptop or phone, is one way for the public to stay involved, Potter said.

Many courts haven’t held jury trials since mid-March, with Jasper County forced to postpone three major cases involving two murders and a person leaving the scene of an accident involving a death.

Potter and Superior Court Judge Russell Bailey have tried to keep ahead of those cases with hearings and conferences. But it’s been months since those involved have been in a court room setting.

“We’re working on ways to do a trial,” Potter said. “At the very least, it would require both courts to be closed to use the whole floor. Some place to put the jury in a court room, put the trial in another court room.”

Then there is the issue of putting together a jury of 12 people who must spend several days with one another and share space in a small jury room. Their safety is another matter to consider, Potter added.

“The jury trial system is set up to put strangers in close contact with each other three or four days at a time as soon as they walk through door. We put 12 people in chairs and put them in a little room. We pick 50 to get to 12 and we can’t do that now,” he said.

“Those are citizens coming to serve for two or three days at $35 a day that the state says they’re paid. I don’t want them running the risk of getting sick, especially when they go home to other people. It’s going to be difficult to do juries if and when we start doing jury trials.”

Potter believes he will have to increase the jury pool in order to find 12 people healthy enough to sit through a trial.

“If you exclude people who are COVID high risks — people over 60, 65, people with heart problems, diabetes or other conditions — we’re talking half the people,” he said. “Normally I would call in 50, but I may have to call in 80 to 100 if I have to excuse people who are at high risk for COVID.

“If we have to do a trial, we’ll figure it out, but it will take a lot longer.”

Judges will also need to be careful in their decision to dismiss too many jurors who could be at risk for COVID, Potter said.

“Some people can say, ‘I didn’t get a fair jury pool to pick a jury from because the judge kept dismissing them,’” Potter said. “Those issues could come up in appeals to higher courts.”

Keeping exhibits safe for jurors to pass around is another concern. Many will have to be placed in plastic bags and paper items will need to be laminated so that they can be cleaned easily.

“We can give jurors masks and hand sanitizer, but it’s still not the greatest idea to put them together in a little room,” Potter added.

How long to keep someone in jail before trial is another issue judges must consider. Forcing someone who hasn’t officially been charged with a crime to stay in jail when a trial might be many more weeks or months away is a concern.

“There’s a timeliness factor, but it’s obviously a lot faster if they are incarcerated,” Potter said. “We may have to make some very difficult decisions in the near future because of COVID where we’re letting people out who normally would not be let out of jail due to the seriousness of those charges. Most people are in jail for minor offenses anyway pending trial. But major offenses, many people are in jail and it’s hard to contemplate letting anyone out who face murder charges or attempted murder or robberies.

“When that time starts running again, we’ll have to see if a trial will work and is feasible somehow. But we might have to make tough decisions with the time limit issue.”