A8 EZ RE THE WASHINGTON POST.SATURDAY, DECEMBER 25 , 2021
To get through the backlog,
King said, officials are having jury
trials going every week. In a
normal year, King said, she would
handle two or three felony trials.
King said she has already handled
four this year and has another on
deck this month.
“We’re going to trial more be-
cause of the backlog, but it kind of
adds to the backlog in the sense
that when you’re in trial, you
really can’t do anything else in
your other cases,” she said.
King said one of her clients has
been in the county jail since
December 2019. His case was
ready for a trial in May 2020, King
said, but no trials were being set
then, so it kept getting delayed.
Now it looks like a trial is not
happening until the spring of
2022, she said.
“Setting aside all the legal is-
sues, the constitutional issues —
on just a human level, I feel so bad
for my client,” King said. “Even if
he ends up convicted, that’s time
he could’ve been plugging away
on his sentence, and getting to
probation eventually, or maybe
parole.”
Candice Jones, another of
King’s clients, said it took about
two years for her to have a felony
case resolved. According to Jones,
she was driving when another
woman claimed Jones was fol-
lowing her too closely, tried to hit
her with her car and threatened
her with a knife. Jones faced two
felony charges as a result.
King, who called it a “she said,
she said situation,” was ready for
trial in March 2020, but it was
delayed until July 2021. Jones,
now 26, said she kept having to
take time off work to deal with the
case during that long wait. She
also had a baby, and while she felt
like she could have been doing
better financially at another job,
she considered herself unable to
apply because of the lingering
case.
“I don’t want to apply for a
good job, then they see this on my
record as pending or whatnot,
and I’m not able to be hired,”
Jones said. “It was really stress-
ful.”
Her jury trial was held over a
single day this summer. She was
acquitted on both counts.
On the other side of the justice
ledger are people like Dick Collier
— victims and relatives of victims
who have grown increasingly
frustrated waiting to see perpe-
trators held accountable.
Collier’s daughter was killed in
May 2018, and the case against
her husband still had not gone to
trial by the time the courthouse in
Newport, Vt., shut down in the
spring of 2020.
The courthouse — more than
130 years old — has poor ventila-
tion and small rooms. Court offi-
cials have repeatedly said it’s not
a safe place to hold jury trials
while the coronavirus remains a
threat, though they recently an-
nounced plans to make fixes that
will allow for a resumption in
2022.
In the meantime, said Orleans
County State’s Attorney Jennifer
Barrett, “people are spiraling out
of control,” racking up charge
after charge. But because they
don’t meet the standard for pre-
trial detention, they have to be
released each time.
“There’s a lot more property
crime, more drug-related vio-
lence,” she said of the rural area
that is one of the state’s poorest.
“And a lot of it has to do with our
inability to address these cases in
a timely fashion.”
Recently, judges have begun
dismissing cases, ruling that de-
fendants have been deprived of
their right to a speedy trial.
The man accused of killing
Collier’s daughter has been held
since his 2018 arrest. Thea
Swartz, 54, was shot dead while
she was on the phone with a 911
operator, whom she had called to
report that her husband was
drinking and pointing a pistol at
her.
Randall Swartz has pleaded
not guilty to the charges, which
include first-degree murder.
Initially, Collier said he expect-
ed the trial “would be fairly
quick” given the overwhelming
evidence.
But 3½ years after their only
child was killed, he and his wife,
Dot, have begun to despair that
they won’t see the end of it.
Neither can sleep at night.
Their health is deteriorating.
They both think constantly of
Thea, whom Dot Collier de-
scribed as “my best friend,” a
constant companion for travel,
shopping trips and shared meals.
Dot Collier knows the trial
won’t bring Thea back. But she
said she wants the chance to face
the defendant in court “and tell
him the pain, the suffering, what
he’s done to this family.”
The lengthy delay has made
that pain all the more excruciat-
ing.
“Grieving is hard enough,” she
said. “But having to go through
what we’ve been through, I
wouldn’t wish that on anybody.”
[email protected]
[email protected]shutdowns in 2020, but “we final-
ly got done with the last of those
trials somewhere in the area of
February 2021.”
Other places are still working
to untangle the knot. Mary E.
Triggiano, the chief judge in Mil-
waukee County — the jurisdiction
where Brooks was twice freed on
bail before the Waukesha parade
massacre — said the courts there
have a backlog of about 1,
felony cases and about 3,100 mis-
demeanor cases still pending.
“You’re just constantly trying
to move cases,” she said. Triggia-
no said that in her district, they
have been gradually reopening
courtrooms that had shuttered
during the pandemic, and the
hope is that by early January,
every criminal division court-
room will be open for jury trials
for the first time since March
2020.
“Nobody has ever seen any-
thing like this,” she said. Officials
are “trying to balance public safe-
ty on the streets with public
safety in the courtrooms” as the
world continues to battle the cor-
onavirus, Triggiano said. That
courtroom safety extends to peo-
ple who work there — including
attorneys, judges and staff — as
well as members of the public
cycling through for cases and
summoned for jury duty, she said.
Hillary King, a public defender
in Salt Lake City, described a
ballooning caseload following
what she called a year-long pause
in jury trials.To catch up, Flynn has been
pushing his most serious cases
into court: murder, attempted
murder, sexual assault.
“But all the miscellaneous felo-
nies — burglaries, robberies, as-
saults, you name it. None of them
have gone to trial since March of
2020,” he said. “So just imagine
the backlog.”
It would be worse, except that
new cases in Buffalo are down
dramatically. Nationwide, total
crime has been lower during the
pandemic, even as violent crime
has risen.
That makes sense to Flynn on
one level: Because of the pandem-
ic, people are at home more, for
instance, so there’s less opportu-
nity for criminals to commit
crimes like breaking and enter-
ing.
But part of it, he suspects, is
that police officers are aware the
courts are jammed, and don’t
want to add to the problem.
“You don’t want to keep dump-
ing water in a clogged sink,” he
said. “So there are fewer and
fewer arrests, and more potential
for people who are a danger to our
society to be out on the streets.”
Flynn said he suspects that is
helping to fuel the rise in violent
crime.
While backlogs are wide-
spread, there are some places
where the problem has been re-
solved. Joseph Cole, a public de-
fender in Casper, Wyo., said court
officials did have to wade through
a backlog stemming from thebacklogs have made it substan-
tially harder to cut a deal, pros-
ecutors and defense attorneys
said.
In some cases, said Michael
Young, the chief public defender
in Bexar County, Tex., a defendant
might wait until the last second
before a trial to enter a guilty
plea, or prosecutors could wait
until the same moment to dismiss
a case.
“Having that threat of a jury
trial really helps move the dock-
et,” Young said. “With no threat of
a jury trial, there’s very little
incentive for the state to do any-
thing or the defense to do any-
thing.”
Prosecutors, for their part,
don’t agree that the pressure is off
to do deals. If anything, they say,
it has risen as their case count
swells and jail populations climb
to or past capacities that were, in
many places, set lower in an
attempt to stem the tide of coro-
navirus clusters behind bars.
Given that reality, some pros-
ecutors believe they have “no
choice but to move product. And
moving product means giving out
plea deals,” said John J. Flynn, the
district attorney in Erie County,
N.Y., which includes Buffalo.
Flynn, the incoming president
of the National District Attorneys
Association, said that for much of
2020, there were no jury trials
taking place in Buffalo. Then one
was allowed at a time. Now it’s up
to two. But pre-covid, there were
typically three or four at once.American landscape for several
years to come. And that’s assum-
ing the courts don’t have to shut
down again for omicron or an-
other new variant.
“This is a three-year project to
get the number of pending cases
back to what it was. And I’m an
optimist,” said Dan Satterberg,
prosecuting attorney in King
County, Wash., which includes
Seattle. “It’s a historic challenge
that we’re facing right now.”
The backlogged system has
had deadly consequences, offi-
cials say.
In Wisconsin, Darrell Brooks
was set to stand trial this year for
allegedly firing a gun at his neph-
ew. Prosecutors were ready, as
was the defense. But there was no
courtroom available. With the
system unable to deliver the
speedy trial that Brooks had re-
quested — and that the state was
required to deliver — he was
released on $500 bail.
While out, court records show,
the 39-year-old allegedly tried to
use his car to run over the mother
of his child and was arrested once
more. But an overburdened ju-
nior prosecutor juggling a jury
trial and two dozen other felony
cases set his new bail at $1,000 —
an amount the district attorney
would later call “a mistake” — and
Brooks was released again.
Just days later, on Nov. 21,
prosecutors say Brooks plowed
his car into the Christmas parade
in the Milwaukee suburb of
Waukesha, hitting 60 people —
and killing six. This time, his bail
was set at $5 million.
While critics have focused on
the low bail amounts, Milwaukee
District Attorney John Chisolm
said the case was better under-
stood as the tragic consequence
of when courts can’t keep up.
“This is a system issue right
now, and it’s only going to get
worse,” Chisholm told reporters
this month. “These backlogs
aren’t going to magically disap-
pear.”
Delays in the U.S. court system
are nothing new, of course. Long
before the coronavirus, America
stood out among its industrial-
ized peers for the extensive wait
times from charges filed to ver-
dict delivered.
“It’s not that the criminal jus-
tice system was a model of effi-
ciency prior to the pandemic,”
said Christopher Slobogin, a law
professor at Vanderbilt Univer-
sity. “But now things have gotten
much worse, and ultimately that’s
not good for anybody.”
When the pandemic struck, the
impact on the courts was im-
mediate and far-reaching: The
Pennsylvania Supreme Court de-
clared a “statewide judicial emer-
gency” and extended filing dead-
lines. Virginia’s Supreme Court
issued an order suspending non-
essential proceedings in circuit
and district courts. The Iowa Su-
preme Court announced that it
was pushing back criminal trials,
while Alabama’s Supreme Court
suspended in-person court pro-
ceedings.
Because criminal defendants
have a constitutional right to face
their accusers, criminal trials —
unlike civil and family law cases
— generally could not be conduct-
ed remotely. And amid fears of
superspreader events, jury trials
in cramped quarters seemed es-
pecially unwise.
The shutdowns reverberated
nationwide, but to varying de-
grees. Some states reopened far
more quickly than others. Now,
even as certain areas report
lengthy delays, others say their
backlogs are gone. A survey by the
Thomson Reuters Institute re-
leased in August found that the
average backlog in state and local
courts had increased by about a
third.
Vera Institute of Justice Vice
President Insha Rahman said
that, on the whole, the courts
were slow relative to other parts
of society in getting back up and
running. And the reason, Rah-
man said, is insidious: The courts
disproportionately “process cases
for people who are poor, who are
Black and Brown. If the courts
were filled with cases of White
kids from suburban, wealthy
parts of our communities, there
would have been more urgency to
bring things back to normal.”
Attorneys and experts say the
impact of delayed criminal cases
is felt across the board. They
point out that defendants can be
sitting in jail, losing out on em-
ployment and means to support
their families. Victims of crime
who were traumatized face added
anguish waiting to see how the
cases are resolved. And, these
attorneys and experts say, there
are practical reasons for trials to
happen sooner rather than later.
“You don’t want witnesses’
memories to fade,” Slobogin said.
“You don’t want evidence to go
stale. The longer a trial takes, the
greater those dangers become.”
While most criminal cases nev-
er go to trial, with the vast majori-
ty ending in plea agreements, the
BACKLOGS FROM A
Early covid delays lead to drawn-out
court cases — and lingering pain
JONATHAN NEWTON/THE WASHINGTON POST
The D.C. jail is seen on April 8. Due to delayed criminal cases, attorneys and experts say jailed defendants could be missing out on securing
employment. Some judges have dismissed cases, ruling that defendants were deprived of their right to a speedy trial.MARK HOFFMAN/ASSOCIATED PRESS
Darrell Brooks, center, is taken from a courtroom on Nov. 23 in Waukesha, Wis. Brooks was set to stand trial this year for allegedly firing
a gun at his nephew. With no courtroom available, he was released on bail. On Nov. 21 police say he drove his SUV into a crowd, killing six.“You don’t want to keep
dumping water in a
clogged sink.
So there are fewer and
fewer arrests, and more
potential for people who
are a danger to our
society to be out on the
streets.”
John J. Flynn, the district attorney in
Erie County, N.Y., suggesting police
reluctance to add to courts’ backlog
explains why total crime is down even
as violent crime rises.