THE NEW YORK TIMES, WEDNESDAY, DECEMBER 2, 2020 N ALast month, the chief judge in
New York State halted new jury
trials until further notice because
of surging virus cases. More than
400 defendants have been waiting
in New York City jails for more
than two years for their cases to
be resolved, according to the may-
or’s office.
“Is it fair for people to be lan-
guishing in pretrial detention and
presumed innocent with no
prospect of a trial in the future for
them?” said New York’s chief ad-
ministrative judge, Lawrence K.
Marks. “A criminal justice system
cannot be, in any sense of the
word, fully functioning, if it is not
conducting jury trials.”
And in the past week, the fed-
eral courts in the city also an-
nounced that all trials would be
suspended until mid-January.
Some prosecutors, citing safety
concerns, have pushed to delay
trials because their witnesses live
out of state or work in hospitals
with Covid-19 patients. In other
cases, prosecutors said the fears
of catching the virus during trials
had been overblown.
The problems in New York have
been mirrored across the country.
Federal judges in Nebraska, Ne-
vada, Colorado and several other
jurisdictions recently suspended
jury trials in response to rising vi-
rus cases. A court in McKinney,
Texas, a suburb of Dallas, held the
state’s first virtual criminal trial
last month.
Each court has determined its
own protocols. One local court-
house in Orange County, Calif., has
completed 114 criminal trials since
May, while the federal courthouse
across the street has determined
it is unsafe to hold any trials.
In New York City courts, the
challenge of preventing the vi-
rus’s spread is magnified by the
dense population. In normal
times, clerks, court officers and
lawyers squeeze into courtroom
galleries and line the crowded
hallways, waiting for cases to be
called.
In November alone, at least
three dozen people who appeared
in nine criminal courthouses in
the city tested positive for the vi-
rus, according to the state’s court
administrators.
Many judges have been eager
to begin trials, worried about vio-
lating the constitutional rights of
people charged with crimes. With-
out speedy trials, jails become
overcrowded, evidence grows
stale, and witnesses’ memories
fade.
Early in the pandemic, after
New York City officials released
hundreds of inmates, the city’s jail
population dropped to its lowest
level since the 1940s. But the pop-
ulation has increased again — to
4,669 people last month — raising
fears about the virus spreading
among inmates and jail staff. A
majority of the inmates are await-
ing trial, according to the Center
for Court Innovation, a criminal
justice nonprofit.
But one of the biggest hurdles to
restarting trials has been finding
defense lawyers who are willing
to do them.
At a federal hearing in Manhat-
tan, Susan Kellman, a defense
lawyer, said she felt unsafe vis-
iting her client in jail, which hin-
dered their ability to prepare for a
drug-trafficking trial that had
been scheduled for October. Her
client has been adamant about go-
ing to trial quickly, she said, and
regularly screams at her on the
telephone.
“I’m a single parent. I have two
kids. I’m really not ready to die,”
she told the judge, who resched-
uled the trial.
In Brooklyn, Aleksandr Zhukov,
a defendant charged in a cyber-
crime scheme, was finally set to
begin trial last month after wait-
ing in jail for two years. But all
three of his lawyers asked to quit
weeks before the start date, citing
fears about the new virus wave.
Saritha Komatireddy, a pros-
ecutor on the case, questioned
why the lawyers had raised the
concern for the first time so close
to trial.
“They may be entitled to their
own fears, but they’re not entitled
to their own facts,” she said at a re-
cent hearing. “Trials are possible.”
Out of desperation, Mr. Zhukov
asked the judge if he could repre-
sent himself, even though Mr.
Zhukov, a Russian national, has
never studied American law.
“For me, there is no options anymore,” Mr. Zhukov said at the
hearing. “It’s a must choice right
now. It’s the only opportunity to
get to trial on time. Otherwise, it
will be postponed, postponed,
postponed, postponed.”
The judge assigned Mr. Zhukov
a new lawyer and delayed the trial
until at least February.
Courthouse security officers
and defense lawyers have sued to
oppose the reopening of New
York’s state courts, accusing court
administrators of failing to take
adequate safety measures.
The chief administrative judge
has said the courts are thoroughly
and regularly cleaned. But a team
of physicians hired by the city’s
public defender groups contended
in an August report that the state’s
courthouses were ill-equipped to
stop the spread of a virus, pointing
to crowded holding cells for de-
fendants, improperly installed
plexiglass and poorly ventilated
rooms.
The virus has infiltrated the
city’s courtrooms in ways that
threaten the health of those inside
and the constitutional rights of de-
fendants.
At a drug trial in state court in
Manhattan in October, a police of-
ficer testified while wearing a see-
through mask and face shield, sur-
rounded by plexiglass. But his tes-
timony was interrupted by
drilling noises from the sidewalk,
which were audible because the
courtroom’s windows had been
propped open to improve ventila-
tion.
The jurors and the defendant,
Demetre Cornish, strained to hear
the officer. The judge decided to
close a window, but kept the oth-
ers open, saying, “We want to
keep the air circulating.”
Mr. Cornish was acquitted by
the jury of some drug and firearm
offenses but convicted of others.
His lawyer, Thomas Kenniff, filed
a motion on Monday asking the
judge to set aside the verdict, ar-
guing that his client did not have a
fair and public trial because of re-
strictions caused by the pan-
demic.
Mr. Cornish’s relatives were de-
nied entry into the courtroom.
Their presence would have “had
the potential to allow jurors to see
him as an individual as opposed toan anonymous masked Black man
sitting in the defendant’s chair,”
Mr. Kenniff wrote.
Face coverings prevented the
defense from assessing facial ex-
pressions and reactions of poten-
tial jurors, Mr. Kenniff said.
And the 12-person jury had in-
cluded only two Black jurors and
did not reflect the demographics
of the borough, Mr. Kenniff said.
Some defense lawyers have
raised concerns that the virus’s
disproportionate effect on Black
and Latino residents might make
jury pools less representative.
Even before trials were halted
entirely, jury selection had been
transformed during the pan-
demic, screening out anyone un-
comfortable with health risks.
Once seated, juries deliberated in
a separate courtroom, giving
them more space than they had in
cramped jury rooms.
Still, some jurors have not
seemed keen to stay for too long. A
murder trial in the Bronx in July
ended in an acquittal on all
charges after jurors deliberated
for less than an hour. A federal gun
possession trial in Brooklyn last
month led to a guilty verdict in 30
minutes.
Communication between law-
yers and their clients, who are
supposed to sit six feet apart dur-
ing trial, has been difficult. Fed-eral courts have provided special
phones that operate like walkie-
talkies, although lawyers have
said that the whispered conversa-
tions are picked up by micro-
phones used to address the court.
“The whole technology seems
like it was from the days of Alex-
ander Graham Bell,” said Eric
Creizman, a lawyer whose client
was convicted of securities fraud
last month after a federal trial in
Manhattan.
Even with careful preparations,
trials have been derailed by the
pandemic.
On Long Island, a judge stopped
a trial after two days of testimony
in September when the defendant
revealed that his wife had tested
positive for the virus. He said he
was unable to isolate from her in-
side their small house. The trial
resumed last month, and a jury
convicted him on several drug of-
fenses.
One or two other trials that had
been halted in March may have
also resumed during the pan-
demic, state court officials said.
“We are concerned for both vic-
tims and defendants that the
wheels of justice continue to
move,” said Karen Friedman Ag-
nifilo, chief assistant to the Man-
hattan district attorney. “Lan-
guishing court cases is not good
for anybody.”The delays have been frustrat-
ing for people like Halley Hopkins,
who filed a police report more
than a year ago accusing her hus-
band of beating and choking her
until she was unconscious. Her
husband has been out on bail
while awaiting trial in Queens.
Though a judge has ordered him
not to contact her, she remains un-
easy.
“My whole life is on hold,” Ms.
Hopkins, 41, said.
A lawyer representing Ms. Hop-
kins’s husband declined to com-
ment.
A Brooklyn man charged with
burglary said he was kept from
entering a drug-treatment pro-
gram for several months when
courts slowed in the spring. Be-
fore the pandemic, his case would
have been resolved sooner, his
lawyers said, but because the
state had suspended speedy trial
rules for most of the pandemic,
there was no urgency.
While waiting for trial in jail, he
contracted the coronavirus in
April.
“I wrote a letter to the D.A., beg-
ging him to please get me help,” he
said in an interview, speaking on
the condition of anonymity for
fear it could affect his case. After a
year in jail, he was finally released
and entered a treatment program
in October. He is still awaiting a
resolution in his case.
Some trials have stalled be-
cause witnesses are unwilling to
travel.
Stephen M. Calk, founder of
Federal Savings Bank in Chicago,
has been eager to go to trial since
he was charged with bribery last
year. Prosecutors have accused
him of giving loans to Paul Man-
afort, President Trump’s former
campaign chairman, in an effort to
obtain an administration job.
“I want to do everything I can to
clear my name as soon as possi-
ble,” Mr. Calk told the judge at a
hearing in October.
But prosecutors said they were
struggling to persuade witnesses
from Illinois to travel to Manhat-
tan to testify.
Over Mr. Calk’s objections, the
judge postponed the trial to Feb-
ruary.In October, Demetre Cornish, left, became the first defendant to stand trial in State Supreme Court in Manhattan since the pandemic began. His lawyer said virus restrictions denied him a fair trial.
PHOTOGRAPHS BY JEFFERSON SIEGEL FOR THE NEW YORK TIMESVirus Is Wreaking Havoc on a Backlogged Court System
From Page APHOTOGRAPHS BY GABRIELA BHASKAR FOR THE NEW YORK TIMES‘My whole life is on hold.’
HALLEY HOPKINS, who a year ago accused her husband of beating and choking her. He is still out on bail.
‘I wrote a letter to the D.A., begging him to please get me help.’
A Brooklyn man charged with burglary who was kept waiting in jail while seeking a drug-treatment program.Stephen M. Calk’s bribery trial was delayed because witnesses
were unwilling to travel to New York City from Illinois.A THREAT TO HEALTH AND JUSTICE
Tracking an OutbreakNew York City