Courts backlog prolongs suffering, with pandemic keeping victims and defendants on hold

So did courthouses nationwide. But unlike most, the one in Newport - a small, lakeside community nestled near the Canadian border - has never fully reopened.

 

Photo Credit: Washington Post photo by Jonathan Newton

With jury trials still suspended, cases are being dismissed by the dozen. Defendants live with charges they can't shake. And Dick Collier lies awake at night, wondering if he will die before the man accused of killing his daughter faces justice.

"That's my fear," said Collier, 81, and in precarious health. "That I might not live long enough to see him go to trial."

Nearly two years after the American justice system was paralyzed by a pandemic, the repercussions continue to radiate through communities nationwide, from tiny towns to the largest cities.

District attorneys face some of the longest case backlogs in living memory. Defendants languish in jails that have become breeding grounds for the coronavirus. Others are set free - and, some prosecutors say, may be contributing to a spike in violent crime that is only compounding the pileup.

Although the shutdown in Newport is extreme - most courthouses are back in action, even if they are not yet at their pre-pandemic capacity - legal officials from coast to coast say justice delayed by covid-19 will continue to be a feature of the American landscape for several years to come. And that's assuming the courts don't have to shut down again for omicron or another 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, officials say.

In Wisconsin, Darrell Brooks was set to stand trial this year for allegedly firing a gun at his nephew. 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 requested - 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 junior 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 understood 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 disappear."

Delays in the U.S. court system are nothing new, of course. Long before the coronavirus, America stood out among its industrialized peers for the extensive wait times from charges filed to verdict delivered.

"It's not that the criminal justice system was a model of efficiency prior to the pandemic," said Christopher Slobogin, a law professor at Vanderbilt University. "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 immediate and far-reaching: The Pennsylvania Supreme Court declared a "statewide judicial emergency" and extended filing deadlines. Virginia's Supreme Court issued an order suspending nonessential proceedings in circuit and district courts. The Iowa Supreme Court announced that it was pushing back criminal trials, while Alabama's Supreme Court suspended in-person court proceedings.

Because criminal defendants have a constitutional right to face their accusers, criminal trials - unlike civil and family law cases - generally could not be conducted remotely. And amid fears of superspreader events, jury trials in cramped quarters seemed especially unwise.

The shutdowns reverberated nationwide, but to varying degrees. 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 released 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, Rahman 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 employment 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 never go to trial, with the vast majority ending in plea agreements, the backlogs have made it substantially harder to cut a deal, prosecutors and defense attorneys said.

In some cases, said Michael Young, the chief public defender in Bexar County, Texas, 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 docket," Young said. "With no threat of a jury trial, there's very little incentive for the state to do anything or the defense to do anything."

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 coronavirus clusters behind bars.

Given that reality, some prosecutors 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.

To catch up, Flynn has been pushing his most serious cases into court: murder, attempted murder, sexual assault.

"But all the miscellaneous felonies - burglaries, robberies, assaults, 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 pandemic, people are at home more, for instance, so there's less opportunity for criminals to commit crimes like breaking and entering.

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 dumping 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 widespread, there are some places where the problem has been resolved. Joseph Cole, a public defender in Casper, Wyo., said court officials did have to wade through a backlog stemming from the shutdowns in 2020, but "we finally 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 Milwaukee County - the jurisdiction where Brooks was twice freed on bail before the Waukesha parade massacre - said the courts there have a backlog of about 1,700 felony cases and about 3,100 misdemeanor cases still pending.

"You're just constantly trying to move cases," she said. Triggiano 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 courtroom will be open for jury trials for the first time since March 2020.

"Nobody has ever seen anything like this," she said. Officials are "trying to balance public safety on the streets with public safety in the courtrooms" as the world continues to battle the coronavirus, Triggiano said. That courtroom safety extends to people 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 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 because 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 issues, 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 following 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 stressful."

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 perpetrators 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 ventilation and small rooms. Court officials have repeatedly said it's not a safe place to hold jury trials while the coronavirus remains a threat, though they recently announced 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 pretrial detention, they have to be released each time.

"There's a lot more property crime, more drug-related violence," 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 defendants 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 expected 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 described 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 excruciating.

"Grieving is hard enough," she said. "But having to go through what we've been through, I wouldn't wish that on anybody."