'Extreme backlog' feared as state courts grapple with reopening

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MERIDEN — As the state Judicial Branch continues to grapple with reopening courts months after the coronavirus pandemic brought most activity to a grinding halt, many stakeholders are growing restless and left wondering what challenges months of inactivity will pose when courts reopen.

“It seems like we’re at a standstill,” said state Rep. Craig Fishbein, R-Wallingford, a local attorney specializing in civil and family law. “I’ve got clients calling me saying they’re not getting child support, and that people are in violation of court orders. Those cases are not being heard, so it’s like a rolling ball going downhill.”

Criminal defense attorney Jay Ruane said he has 47 cases pending at the Meriden courthouse, which has been closed since mid-March. 

“There's been a standstill in doing the things needed to resolve a case like victim contact, like investigation follow ups, like questioning witnesses,” Ruane said. The net result is that defendants being held on bond spend more time in jail than they otherwise would, he said.

“They’re just held in jail with no idea what the future will bring, and people around them are getting sick, and they’re getting scared rightfully so,” Ruane said. “... You’ve got clients saying, ‘Hey, I’m locked up, I’m risking getting sick, and I want to be able to get out. What can you tell me is being done?’ And honestly what we have to say is, ‘Nothing is being done, sorry, call back in a month.’ ”  

When the pandemic hit in March, courts began only handling cases considered top priority — “Priority 1 business.”

The Judicial Branch at the time also closed the majority of smaller courthouses with lower case volume, including Meriden, and transferred Priority 1 business to courts in larger locales, with cases from Meriden being moved to New Haven, one of six superior courts left open. Priority 1 business includes criminal arraignments and domestic violence arraignments, juvenile detention hearings, family orders of relief from abuse, civil orders of relief from abuse, civil protection orders and orders of temporary custody.

The Judicial Branch has since taken an incremental approach to restoring operations, taking into account the need to balance the public health crisis with its constitutional obligations. In a series of updates posted to its website, the branch has been announcing different proceedings being resumed remotely, which have included Supreme Court and Appellate Court trials and pre-trials, trial management, and status conferences for civil and family cases. Those cases being resumed remotely include ones at closed courthouses like Meriden, according to Judicial Branch spokesperson Rhonda Hebert.

‘Extreme backlog’

But with much activity still on hold, particularly in the criminal system, attorneys anticipate the months-long recess will create an “extreme” backlog of litigation. 

“When a courthouse is closed for, let’s say, a blizzard for one day, it’s complete chaos when everything is one day off … I can’t even begin to imagine the chaos that’s going to occur once courts open,” said Bridgeport attorney Frank Riccio, president-elect of the Connecticut Criminal Defense Lawyers Association.

Judge Patrick L. Carroll III, chief court administrator, said the pandemic posed “an incredible challenge to everyone involved with the legal system” and assured that the Judicial Branch is “moving as expeditiously as possible to safely resume limited court operations in our currently closed Judicial Branch facilities.”

“The resumption of business in currently closed facilities is largely dependent upon guidance from public health officials and implementation of the safety measures that must be in place,” Carroll said in written responses to questions provided through a Judicial Branch spokesperson. “… I can assure you that we are making steady progress toward that goal and will keep everyone informed.” 

Riccio and Fishbein both practice in the state’s federal court system and noted a striking difference in how little federal operations have been disrupted. 

“The federal courts were really ready to go, and by and large, they didn’t skip a beat when the pandemic came except for jury trials,” Riccio said. In a case filed only two weeks ago, Fishbein said he’s already had a conference with the judge and is scheduled to have a hearing on June 1. 

Riccio believes the federal system was better suited because of improvements made to its infrastructure  — online dockets, an electronic filing system, and video conferencing capabilities — over the past 20 years, putting it “miles ahead” of the state system. 

“What [the state Judicial Branch] is being asked to do is to reform a system that’s 20 years behind the times in a matter of weeks,” Riccio said. “Technologically speaking, other courts, specifically the federal court, have moved forward while the state courts did not. Again, it’s no one’s fault, it just is what it is.”

Making strides

Carroll disagreed with the assessment that state courts lag behind other systems, saying in a written response that the state court system has “had a robust and comprehensive e-filing system in place for years” and has “been conducting a wide range of video-conferenced proceedings from (Department of Correction) facilities for years.”

Though the video conferencing capabilities are in place, Carroll wrote the challenge has been in rapidly expanding their use in remote locations.

“For instance, rather than being used for a limited number of video proceedings between the courthouse and DOC facilities, a much broader range of matters, including civil, family, juvenile, and criminal, are now being conducted by video from locations other than courthouses and DOC facilities, including police departments, Connecticut Valley Hospital, staff members’ homes, lawyer’s offices and a multitude of other locations,” Carroll wrote.

Entering the third month of court closures, there’s been a growing perception among some attorneys, according to Riccio, that the Judicial Branch “has not been moving towards the reopening of courts in an expeditious way. But Riccio defended the branch, saying much of its work and progress can’t be seen and that he believes the branch when they tell him they’re making strides. 

Ruane was more discouraged and called for better communication. 

“We haven’t gotten really any substantive updates as to what the future of criminal justice practice looks like in the state of Connecticut,” Ruane said. “All they have to do, is tell people what’s going on so that we know something’s going on. Otherwise, we’re just simply left with, ‘Boy, they’re doing nothing.’ ”

Since the beginning of the pandemic, Carroll said he’s had regular contact with the Connecticut Bar Association’s COVID-19 Task Force, adding the Judicial Branch has been posting updates regularly on its website.

“They have been sharing information,” Riccio said, “it’s just not the information (attorneys) want to hear.”

Criminal cases

Riccio said there’s also been a perception among members of the criminal defense lawyers association that the criminal system has been “relegated to the back of the line” with reopening. Pretrials, trial management, and status conferences are now being held remotely for family and civil but not criminal cases, Ruane noted. 

“At some point, you have to have a system to allow the justice system to work,” Ruane said. “The litigants, the victims of crimes, the defendants who have been charged all have fundamental constitutional rights to have their day in court, and it can’t just be ignored because there’s a pandemic going on.” 

Carroll pushed back, writing “the overwhelming majority of business being handled by the Judicial Branch during the COVID crisis has been criminal business.” 

“The criminal system has not been ‘left behind,’ it has clearly been at the forefront of all that we have done and are continuing to do in the court system,” he said. Carroll cited a list published by the Judicial Branch of criminal proceedings and matters currently being conducted or acted upon, which include arraignments, emergency motions and motions for review of bail and sentence modifications. 

The state’s Division of Criminal Justice couldn’t be reached. 

In imagining what the “new normal” will look like when courts reopen, the Judicial Branch is considering a number of changes to limit the number of people in courthouses, including staggering dockets, granting more waivers for defendants to appear, and establishing an electronic system for sharing documents and discovery so that, for instance, an attorney doesn’t have to drive to a courthouse to pick up a police report. 

Rather than staggering criminal court appearances throughout the day, which is done with civil dockets, the current system directs large cohorts of criminal defendants to appear in court at the same time and wait for their case to be called, meaning dozens, perhaps hundreds of people — defendants, lawyers, court staff, witnesses, and spectators — can be crammed into a confined courtroom.  

“That’s just not going to be healthy for anybody,” Ruane said. “Unfortunately a lot of people who work in courthouses tend to be in the at-risk communities.”

Jury trials?

Court systems across the country will particularly face challenges in resuming jury trials, which have been suspended in Connecticut until further notice. Some members of the public have reported receiving a jury summons in the mail, but the Judicial Branch website instructs the public not to report because “your service has been canceled.”

Riccio said it’s hard to imagine jury trials resuming any time before 2021, while Carroll said “It would be imprudent to speculate as to when there will be a resumption of jury trials in Connecticut.”

With longer wait times for trial availability expected when courts reopen, Ruane worries the backlog will stack the deck against defendants, making them more inclined to enter a plea.

“All of this is going to encourage some people who are innocent to plead guilty to resolve their cases so they can move on with their lives,” he said. “I can’t tell you how many clients have said, ‘Look, I just need this over with, I’m missing days from work, I need to move on with my life, I’m just going to plead guilty.’”  

mzabierek@record-journal.com203-317-2279Twitter: @MatthewZabierek

"It seems like we’re at a standstill. I’ve got clients calling me saying they’re not getting child support, and that people are in violation of court orders. Those cases are not being heard, so it’s like a rolling ball going downhill.”

-Craig Fishbein, state rep. and private attorney
"The resumption of business in currently closed facilities is largely dependent upon guidance from public health officials and implementation of the safety measures that must be in place. I can assure you that we are making steady progress toward that goal and will keep everyone informed.”

-Judge Patrick L. Carroll III
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