Protect yourself
Here are the current Arkansas Department of Health covid-19 guidelines.
• Get the covid-19 vaccine.
• Wash your hands often with soap and water for at least 20 seconds. Use hand sanitizer when soap and water aren’t available.
• Practice physical distancing. Avoid close contact with others, especially those who are sick, by keeping at least 6 feet between you and others.
• If you think you have been exposed to covid-19 or develop a fever, cough, or shortness of breath, seek testing.
• It’s recommended to wear a face-covering in all indoor public settings in areas of substantial or high transmission, whether you are vaccinated or not vaccinated.
Source: Arkansas Department of Health
Courts in Northwest Arkansas are chipping away at the backlog of criminal cases resulting from a yearlong hiatus prompted by covid-19.
They were allowed to open in May.
The Arkansas Supreme Court suspended in-person proceedings, including jury trials, in all courts March 17, 2020. The order waived speedy trial rules and other requirements found in the Arkansas Rules of Criminal Procedure.
On May 3, the Supreme Court allowed jury trials and other in-person activities in courts to resume. Judges were told to continue to follow the Arkansas Department of Health’s guidelines concerning face coverings and social distancing for the safety of participants. The order followed the availability of vaccines.
Prosecutors, defense attorneys and judges worked to resolve felony criminal cases, but the inability to hold jury trials created a backlog. They’ve been playing catch-up since.
“May to Christmas, if we have ever tried that many cases in that amount of time, I don’t know about it,” said Nathan Smith, prosecuting attorney in Benton County. “I don’t know if we had a two-week period where we didn’t try a case because cases that should have been trying in the previous 18 months were pretty much tried in that window. I think we tried somewhere around 20 cases, which is a lot.”
To compare, Smith said there were entire years in the past when prosecutors tried only seven to 10 cases.
Jay Saxton, chief public defender in Benton County, said his office continues to see client numbers increase.
“We are still treading water,” Saxton said.
About 30 criminal cases a year, or roughly 1%, went to trial in Washington County before covid. A typical precovid day in court saw about 25 pleas and arraignments, according to Matt Durrett, the prosecutor in Washington County.
Washington County Circuit Judge Mark Lindsay said he’s increased the number of cases on his docket almost every day since May. Jury trials have resumed, which has helped resolve cases by plea bargain as well, he said.
Masks and social distancing are still being maintained for now.
“We are making progress and hoping there is not a surge caused by the omicron variant,” Lindsay said.
Durrett said an uptick in violent crime and a backlog of violent defendants awaiting trial mean more people waiting in jail, despite efforts to release as many nonviolent offenders as possible to make room those charged with violent offenses. People who were released earlier are also failing to show up for court, he said.
“We’ve got 25 murder defendants currently incarcerated. That goes along with those charged with sex offenses, robberies, shootings, et cetera,” Durrett said. “It’s getting tougher and tougher to identify those who don’t pose a danger or a flight risk. We’re still trying, though.”
Durrett said he has a series of trials set in January and February for violent offenders.
“It’s just going to take a while because you’ve got so many cases backed up, and you’ve only got so many judges and so many prosecutors and so many defense attorneys,” he said. “You’ve got cases that are backed up and more cases coming in.”
To mask or not to mask
If 2020 was a year of dealing with catastrophe and 2021 was a year of adaption and progress for the judicial system, Smith said he’s for normal this year.
“Obviously, the whole problem with covid is the balancing test of risk versus what you’re trying to do,” he said. “But now, with vaccinations and therapeutics on every street corner, we’re going to have to essentially say ‘OK, we’re going to go back to normal.’ Hopefully, that will be in 2022.”
Smith said he understands why preventative measures were imposed, but he also believes those measures make the legal process harder and more time consuming for everyone involved.
“I think the next big thing for us is masks. I think masking is a huge problem in court, and particularly in jury trials,” he said. “I’m just a firm believer you can’t try a jury trial effectively if you cannot communicate with people, and you can’t communicate with people if you can’t read nonverbal cues.”
Smith said that’s vital for both sides during jury selection.
“For me, as prosecutor, I want to see all the jurors faces for sure, but for anybody picking a jury, it is so critical for you to be able to read their faces,” he said. “You don’t know how important that is until you can’t do it.”
Smith said jurors have told him they need to be able to see the faces and hear clearly during trials, as well.
He said trials play an outsized role, making up maybe 5% of cases, but they’re what people think of as the judicial system.
“The cases you try are the ones the public looks at. So, you want those cases to be representative,” Smith said. “The ability to do them effectively and do your best on them is important.”
Smith said judges have approached masking differently with some still mandating masks.
“At some point, we’re going to have to practice law like we’ve been doing it for a thousand years, where people can speak to one another,” Smith said. “Now the problem is nobody wants to be the first guy to do that.”
Smith said online court proceedings helped keep things moving during the pandemic, but it’s never going to be the same as going to court in person because, when everybody’s live and in court in front of a judge, there’s pressure to get cases resolved.
“In the future my hope is we can drop all that,” Smith said. “The reality is that if you don’t have live, in-court appearances where defendants, their attorneys and prosecutors are standing in court, you are never going to close as many cases as you should because that’s where it gets done.”
Civil side less impacted
Circuit Judge John Threet, in Washington County, said the court restrictions weren’t as onerous for domestic relations and probate cases because fewer people are involved.
“During covid, my docket, except for the jury trials, ran the same. We just did it all on Zoom,” Threet said of the online meeting program. “We had bench trials on Zoom. We had all of our hearings on Zoom. The whole docket was being run except for jury trials. The jury trials themselves kept having to be reset.”
Threet said he’s been doing everything live since the courts opened.
“I’ve had three jury trials since then,” he said.
Threet puts the attorneys in the jury box and spreads out the jurors in the courtroom for trials. Everybody wears their mask during jury selection. Masks are optional once a jury is selected.
The courtroom is equipped with clear plastic partitions between witnesses and court staff, Threet said. Attorneys and witnesses are allowed to remove their masks when talking.
“Sometimes, we’ll go to Zoom if someone has a grave concern or an issue or a problem or if it’s simply going to be difficult for them to get there, not necessarily covid-related,” he said.
Judges were told by the state Supreme Court to use their discretion after May, Threet said.
“I did have a jury trial when the spike started going back up in the summer, and I reset that one,” Threet said. “It was going to be at least five days, and I was uncomfortable having all those jurors together for that long a period of time.”
Threet said he’s had surprisingly few complaints regarding covid from potential jurors, but it has come up in domestic relations cases.
“It’s like no, that doesn’t work,” Threet chuckled. “You don’t get to use covid for your own benefit in custody or visitation. You’ve just gotta be careful.”
Print Headline: Courts remain cautious, but prosecutor wants to see faces
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