What do coronavirus court closures mean for the right to a speedy trial?

In Montgomery County, with 13 presumptive cases of the coronavirus as of Thursday, court officials have instituted emergency measures to reduce the number of people in the bustling county courthouse in Norristown — canceling jury trials and many other hearings through March 27 and conducting some hearings by video.

And President Judge Thomas DelRicci has made an unusual request to the Pennsylvania Supreme Court: to suspend Rule 600 for the next two weeks. That rule codifies the right to a speedy trial guaranteed by the U.S. Constitution: 180 days if a defendant is in jail, 365 days if not.

The Supreme Court responded Thursday that it would take the question under advisement, as coronavirus fears have begun to disrupt court proceedings in Pennsylvania and New Jersey — stoking fears among anti-incarceration advocates who worry jails will fill up with people whose hearings are delayed.

Defense lawyer and University of Pennsylvania law professor David Rudovsky said that such a blanket rule suspension would be unprecedented.

“It seems to me it would be very extraordinary for a court to prospectively say we’re going to stop the clock now because there may be problems two weeks from now or three months from now, as opposed to waiting until that actually happens,” Rudovsky said.

In Philadelphia, court schedules have not been interrupted, but at least two judges have self-quarantined after travel abroad or potential virus exposure — either delaying proceedings, working remotely, or handing off their dockets to colleagues. (Neither judge had symptoms or a positive test as of Thursday.) In New Jersey, Chief Justice Stuart Rabner announced that new jury trials would be suspended until further notice. The state’s speedy trial rule specifically makes exceptions for unusual circumstances like natural disasters.

Philadelphia District Attorney Larry Krasner said the speedy trial rule in Pennsylvania already covers any delays due to emergency situations that cause court closures.

Meanwhile, Krasner said, stakeholders, including himself, judges, and the defense bar, have been meeting to discuss pandemic response measures to manage the jail population and ensure the safety of correctional officers, sheriffs, and those in custody.

“We are working, I think, very constructively with our partners on ways to minimize risk, which does include reducing the population in county custody where we can do so safely,” Krasner said.

A Defender Association spokesperson said Philadelphia public defenders are working to identify clients in custody who may be at greatest risk of getting the virus. The defenders are filing motions for release for clients in pretrial status for whom only bail is holding them in custody. “In cases where the DA agrees to release, the courts have allowed for an expedited process to release those individuals,” the spokesperson said in a statement.

Montgomery County announced it would conduct additional hearings via video to move defendants through the courts efficiently.

However, Premal Dharia, director of the Defender Impact Initiative, a nonprofit advocacy organization, said the changes proposed in Montgomery County — including the use of video hearings and the proposed time extension — raise constitutional concerns that can’t be ignored even in the face of a pandemic.

“When we incarcerate people, certain rights are triggered,” she said. “When you relax all of those rules and yet you continue to incarcerate people, that flies in the face of what we’ve decided as a community is appropriate — and it violates the constitutional principles that undergird these statutes to begin with.”

Still, as a practical matter, defense lawyer John McMahon, who primarily practices in Montgomery County, expressed support for the court’s decision, given the spread of the virus there.

“Hopefully, it will not persist for a lengthy period of time,” he added. “If it does, it’s going to present some very challenging problems with respect to the operation of the criminal justice system.”