A Year Without Jury Trials

After more than a year without jury trials in the state of Connecticut, lawyers and legal observers warn that the effects of the delay will far outlast the pandemic. 

Already hundreds of defendants, convicted of no crime, have sat in pretrial detention for the past year – some held for bail amounts of as little as $1485 – as many others are released back into their communities to await trials that may not come for years.

Witnesses have moved, memories have faded, and in some cases, victims of sexual assault share neighborhoods with their alleged perpetrators. 

Criminal jury trials can already take years to be resolved. Matt Maddox, a criminal defense attorney with Maddox Law Firm in New Canaan, said that in some courts in Fairfield County, he has sometimes waited two or three years for criminal trials, even before the pandemic.

Dan Barrett of the ACLU estimated that in some of Connecticut’s courthouses, it could take four years to work through the current backlog of cases. 

“The dam’s been building up,” said Stephen Sedensky III, State’s Attorney for the Judicial District of Danbury. “We expect a flood of demand for jury cases, and I don’t know if we’ll have the judges or prosecutors to deal with it. When you have a jury trial, you need a prosecutor, judge, clerical staff, and space to do it.” 

The “default position is that people get released”

According to Maura Crossin, that delay can leave her clients, many the victims of sexual assault, terrorized as they wait years for a case to be resolved while the accused remains free in the community. Crossin is program director and senior attorney with the Victim Rights Center of Connecticut.

“Sex assault cases can already take two or three years to be litigated, so an automatic backlog of another two or three years on top of that will be devastating,” Crossin said. “There could easily be a six year window between the arrest and the trial, let alone the event itself.” 

Crossin said that more than a year into the pandemic, the fact that her clients still have no idea when they could go to trial has taken a psychological toll. She said that some of her clients have committed to seeing the process through, no matter the delay, but others just want to “move on with their lives, because the prospect of waiting years with no end in sight is terrifying.” 

Crossin said that that many of the people her clients have accused of sexual assault are out on bail, so they could run into them at any time. She shared one example of a minor whose mother is considering moving her out of state due to the fear that her child will run into her alleged assailant in their small town in Connecticut. 

“Sex assault cases can already take two or three years to be litigated, so an automatic backlog of another two or three years on top of that will be devastating,” Crossin said. “There could easily be a six year window between the arrest and the trial, let alone the event itself.” 

In another case, she said that a defendant charged with assault was released on bail. Crossin requested GPS monitoring, but was denied when the public defender successfully argued that it would be a violation of the defendant’s civil liberties to live with GPS monitoring for what could be years. 

Crossin said that many of the people her clients have accused of sexual assault are out on bail because Connecticut’s criminal justice system has attempted to minimize the number of people remaining in pretrial detention during the pandemic.

According to Sendensky, the state’s “default position is that people get released.”

“Courts have gone through the cases of people in pretrial detention to see if this is someone we can safely release into the community,” explained Sedensky. “People who are still incarcerated have either exhibited danger to the community or they have historically just not shown up to court when they’ve been released in the past.”

That amounts to 684 people who have been in pretrial detention for the entire duration of the pandemic, or eight percent of the total incarcerated population, according to data from the state Department of Correction.

The top ten offenses for inmates currently in the pretrial status of the court process are murder (111), first degree sex assault (68), first degree assault (56), injury or risk of injury to a minor (38), first degree robbery (35), home invasion (32), criminal possession of a firearm (20), violation of probation (20), first degree larceny (19), and felony murder (16). 

Of inmates in pretrial detention since last March, nearly 90 percent have a bond of greater than $100,000. The highest bond is set at $7 million, and the lowest at just $1,485. The median is $410,000.

Barrett said that while judges have tried to decrease the population of pretrial detainees by lowering bond amounts, it’s not always enough for lower-income people charged with crimes.

“If the judge sets bond at $10,000 dollars, that might as well be ten million dollars to a homeless person facing their fifth low-grade charge,” Barrett said. 

James Pastore, an assistant public defender for Fairfield Judicial District, who deals with homicide and sexual assault cases, said that he has about thirty clients in pretrial detention.

“If the judge sets bond at $10,000 dollars, that might as well be ten million dollars to a homeless person facing their fifth low-grade charge,” Barrett said. 

“The system dealt with the more readily resolvable cases in the first few months of the pandemic by setting bails a little lower than normal to get people out, so there’s really nothing left,” Pastore said. “After that, we were left with the stuff that just has to be tried, and those people have been sitting there, waiting for months with no end in sight. Some of my clients have been waiting three years.” 

Pastore said that some of his clients, who have been charged but not convicted of any crime, contracted COVID-19 while incarcerated.

According to the Marshall Project, one in three prisoners in the state has tested positive for COVID-19 over the course of the pandemic, four times the rate in Connecticut overall. In total, 4,399 people in Connecticut’s state prisons and jails have tested positive for the virus, and 19 people have died.

A delay in settling cases

Stephanie Roberge, president of the Connecticut Trial Lawyers Association, said that without the natural deadline of a jury trial, there has been little incentive to settle cases.

“A trial is your drop dead date,” Roberge said. “With the prospect of a scheduled jury trial, a decision has to be made. Are you going to try the case, or is there an interest in trying to settle it? There’s no looming deadline anymore, because everyone can just wait it out, so settlements begin to slow down.”

There are “virtually no criminal trials” even in normal times, Barrett agreed, but the threat of a trial is necessary to move the system along. Criminal procedures inflict costly penalties on defendants, from bail itself to finding childcare to missing work to appear into court every few months for what could be years.   

“You have to invest time and money to fight any criminal charge, even if it’s frivolous, so your incentive is always to just plead guilty and take a deal,” Barrett said. “Now, with no actual trial on the horizon, that incentive becomes much more powerful. In the past, a criminal defendant could just say, look, I’m done negotiating, I’m not taking a deal, let’s just go to trial, and if the charges really are frivolous, the prosecution might drop it. Now, that’s not much of a threat.”

“A trial is your drop dead date,” Roberge said. “With the prospect of a scheduled jury trial, a decision has to be made. Are you going to try the case, or is there an interest in trying to settle it? There’s no looming deadline anymore, because everyone can just wait it out, so settlements begin to slow down.”

Delayed criminal trials can also benefit defendants, Matt Maddox, a criminal defense attorney with Maddox Law Firm in New Canaan explained.

“The fact that there is no threat of a trial provides defendants time to work, go to school, better themselves, and change direction, so when they reach the trial, they have much greater color and definition for a judge to take a measure of the person in front of them,” Maddox said. “The passage of time is a great advantage for people who are industrious. We have a fair number of clients who have really improved their situations, gone to school, gotten degrees, gotten hired and been promoted. It’s superb, when standing in front of a judge, to have been able to build up a resume.” 

Defendants in criminal trials also benefit from a delay that often makes it more challenging to prove guilt beyond a reasonable doubt. 

“The longer a case goes on, the better it gets for the defense,” Pastore said. “Memories fade, and people die and move, so the more time that passes, the better it gets.” 

This provides a particular challenge for survivors of sexual assault, Crossin said. 

“Even pre-pandemic, keeping memories intact over time and keeping track of victims was always a challenging reality of sex assault cases,” Crossin said. “We’re now talking about the effect of time on memory times a thousand. This is already a system that wasn’t great for victims in sex assault trials, and it’s now seriously exacerbated.” 

‘A Constitutional crisis’ 

In an effort to contain the spread of COVID-19 and accommodate the effects on the state’s criminal justice system, last March Gov. Ned Lamont issued an executive order suspending statutes of limitations and the right to a speedy trial. 

Normally, criminal trials must begin within a year after charges are filed, if the defendant requests it, or within eight months if the defendant is held in pretrial detention, unable to make bail. While many defendants have filed speedy trial motions during the pandemic, all have been denied in deference to the governor’s executive order. 

But Sedensky said that it remains to be seen how appellate courts, and eventually, the state’s Supreme Court, will view the order. If it is overruled, many charges could be dropped. 

“Even pre-pandemic, keeping memories intact over time and keeping track of victims was always a challenging reality of sex assault cases,” Crossin said. “We’re now talking about the effect of time on memory times a thousand. This is already a system that wasn’t great for victims in sex assault trials, and it’s now seriously exacerbated.” 

“It’s not an exaggeration to call it a constitutional crisis,” Maddox said. “Speedy trial rights are a foundational concept in our federal and state constitution. Is government encroachment on speedy trial rights justified by sufficiently compelling public need such that the violation of constitutional right is justified? That’s the million dollar question that is going to be tested in our appellate courts and in the Connecticut Supreme Court.”

Connecticut’s Chief Public Defender, Christine Perra Rapillo, said she had a hard time imagining hundreds of convictions reversed for violations to the right to a speedy trial, but she said that in individual cases, lawyers may be able to show that if trials have restarted in one jurisdiction and not in another, it was prejudicial for a client.

“It’s clear people have the constitutional right to a speedy trial and to not be unjustly held for long periods of time, but this pandemic is an unprecedented emergency, and my guess is that the court will balance on the side of the decision to keep people safe.” Rapillo said. “Still, we’re a long ways away from a legal determination of whether the pandemic emergency was sufficient to overcome speedy trial rights.” 

“It’s not an exaggeration to call it a constitutional crisis,” Maddox said. “Speedy trial rights are a foundational concept in our federal and state constitution. Is government encroachment on speedy trial rights justified by sufficiently compelling public need such that the violation of constitutional right is justified? That’s the million dollar question that is going to be tested in our appellate courts and in the Connecticut Supreme Court.”

Restarting jury trials will also present a series of constitutional hurdles, Pastore said, noting that there is no clear road map for which cases will go to trial first. How long a defendant has been waiting, which charges are most serious, and who is actually ready to go to trial could all play a role in prioritizing trials.

“Once you start jury trials again, people have that right to a speedy trial, so you can’t just say oh, sorry, you have to wait two years until we get to your case,” Pastore said. “But the courts won’t be able to start all of the trials at the same time, so the appellate courts might have to set those priorities, keeping in mind speedy trial rights.” 

Rapillo said she was certain that those in pretrial detention would receive jury trials first, but that beyond that, systems could prioritize cases in a number of ways. 

“We just don’t have enough lawyers, judges, and courtrooms to try everybody who might file a speedy trial motion immediately, so it’s going to have to be ordered in some way,” Rapillo said. 

Crossin said she anticipated the prioritization of which cases start up again first could prolong her clients’ delays. 

“We’ve been told that when jury trials resume, the most serious cases, like high level murder cases, are going to be the priority,” Crossin said. “Incarcerated defendants are going to be prioritized, so cases considered low-level sex assault cases where the offender is out on bail? I can’t fathom how long it’s going to take to get to them on the trial list.”

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