Wisconsin case tests speedy trial rule after man sits in jail for 14 months without an attorney

If the state can’t find defense attorneys for criminal defendants for months on end, the charges should be dismissed due to the violation of their constitutional rights, a national defense lawyers group argues, reported WTAQ-WLUK. .

The issue stems from the case of James Grandberry, a suspect in a major Chicago-to-Green Bay drug ring investigation. He sat in jail for more than 14 months without an attorney or a preliminary hearing, which is usually held within 10 days.

Grandberry, 36, faces 14 charges, including three of manufacture or delivery of fentanyl, amphetamine and cocaine. He was arrested July 11, 2024, and charged about two weeks later. Prosecutors have said this case was the state’s first wiretap investigation for fentanyl and at least 47 people are facing charges. Grandberry now has an attorney and has pleaded not guilty. No trial date has been set. He returns to court June 22 for a status conference.

Before an attorney was appointed, however, Grandberry’s preliminary hearing was postponed 10 times.

Grandberry’s motion to have his case dismissed was denied by a judge. Grandberry then filed what’s known as an “interlocutory appeal” asking a higher court for the case to dismissed, arguing his Sixth Amendment rights were violated by the delay. Usually, the appeals court take up issues of law after a case has been completed, but this mechanism allows for an appeal while the case is still pending. In August, the Court of Appeals said it would hear the case. This appeal case continues, even though an attorney was eventually found for Grandberry and his case is now underway.

Attorneys for both Grandberry and prosecutors have filed arguments with the court. Other groups have asked to file what are known as “friend of the court” briefs, offering their opinions on the case. The first one was filed Thursday.

The National Association of Criminal Defense Lawyers argues the remedy should be dismissing the charges outright, without giving the state the ability to refile the charges. Refiling of charges was allowed in another case, where Nhia Lee was jailed 113 days with a preliminary hearing.

“Only dismissal with prejudice accomplishes something useful. It tells all that egregious violations of due process beget serious consequences,” wrote attorney George Burnett.

And while it isn’t the prosecutors’ fault Grandberry didn’t get an attorney, it is the state of Wisconsin’s issue, the NACDL brief argues.

The crisis the Supreme Court described therefore emanates from the State’s policy decision, so the consequences of that decision should fall on the State, not those it accuses. Funding lawyers to represent those accused of crimes is neither politically urgent nor electorally popular for now, prisoners like James Grandberry bear, through no fault of their own, the full ramifications of the State’s unwillingness to meet its constitutional obligations. That must change.”

The Wisconsin Association of Criminal Defense Lawyers and the State Public Defender’s Office also plan to file briefs, court records show. It will likely be several months before the Court of Appeals rules in the case.

Grandberry’s case isn’t the only one to challenge the delays in appointing attorneys. In 2022, eight current and former inmates filed suit in Brown County, seeking an order demanding quicker appointment of counsel. The state public defender’s office has also spent more than a year making over 5,000 contacts, trying to find an attorney for Jordan Leavy-Carter, who is charged in connection with the shooting death of a five-year-old.

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15 years of pretrial hearings for Guantanamo detainees

Prosecutors portrayed the prisoners as unrepentant jihadists who bragged about their roles in the Sept. 11, 2001, attacks to federal agents during their first months in military detention at Guantánamo Bay, reported The New York Times.

Defense lawyers cast the men as so broken by violence and solitary confinement in their years in C.I.A. prisons overseas that they were groomed to involuntarily confess to U.S. agents.

Over eight days this month, the two sides offered these stark, clashing views to a military judge who is now confronted with the overarching question in the long-running capital case: Did Khalid Shaikh Mohammed, who is accused of hatching and organizing the Sept. 11 attacks, and two co-defendants voluntarily incriminate themselves to F.B.I. agents years ago, and can their statements be used against them?

The case is in its 15th year of these pretrial proceedings, and no date has been set for the trial to begin. But the judge’s decision could be a turning point almost 25 years after the attacks killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon.

Stephan Gerhardt, whose brother Ralph was killed in the attack on the World Trade Center, said the judge’s decision would provide “a major step forward as it answers probably the biggest legal question that needs resolution before a trial date being set.”

He watched some of the arguments in the court at Guantánamo this month.

The legal question before the judge is not about the crime itself, the largest terrorist attack ever in the United States. That will be left for a trial.

It is whether the prisoners were so thoroughly conditioned after more than three years of incommunicado detention, which started off with brutality and continued with years of questioning by U.S. government agents, that they involuntarily told their captors what they wanted to hear.

A crux of the question confronting the judge is the legal principle of attenuation, how to get an untainted confession after a coerced one. Prosecutors say the “clean” interrogations at Guantánamo in 2007 met the legal standard of a change in time, change in place and change in identity of questioners.

Transfer to Guantánamo

To make his decision, the judge is reviewing years of testimony and reams of classified evidence managed by four previous judges in the case against Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi to decide whether there was a clear moment of attenuation.

Or, as the judge called it, the pivot.

Military judges have so far thrown out the confessions of two other capital defendants, Ammar al-Baluchi and Abd al-Rahim al-Nashiri, because of what the C.I.A. did to them. Prosecutors are appealing to reinstate Mr. Baluchi’s statements.

“Mr. Khalid Shaikh Mohammed could not shut up about his role as the emir of the 9/11 attacks,” the lead prosecutor, Clayton G. Trivett Jr., said on the first day of the hearing. Mr. Trivett said Mr. Mohammed boasted about the attacks to C.I.A. interrogators after he was captured in Pakistan in March 2003 and then to F.B.I. agents at Guantánamo in January 2007.

It was in March 2003 when Mr. Mohammed was in C.I.A. custody that he was waterboarded 183 times. His lawyer, Gary D. Sowards, said that after his client was tortured, he was questioned hundreds of times, sometimes three times a day, by C.I.A. investigators.

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Trump Administration regularly defies court decisions

When a federal judge shot down a Trump administration policy of holding immigrants without bond last December, it seemed like a serious blow to the president’s mass deportation effort, reported The Associated Press.

Instead, a top Justice Department official insisted the ruling wasn’t binding, and the administration continued denying detainees around the country a chance for release.

By February, the district court judge, Sunshine Sykes, was fed up. Sykes, a nominee of President Joe Biden, accused Trump officials in a ruling that month of seeking “to erode any semblance of separation of powers,” adding that they could “only do so in a world where the Constitution does not exist.”

Hardly isolated, the case illustrates a broader pattern of defiance of lower court decisions in President Donald Trump’s second term.

The failure of Trump officials to follow court orders has been highlighted most notably in individual immigration cases. But a review of hundreds of pages of court records by The Associated Press also shows an extraordinary record of violations in lawsuits over policy changes and other moves.

In the second Trump administration’s first 15 months in office, district court judges ruled it was violating an order in at least 31 lawsuits over a wide range of issues, including mass layoffs, deportations, spending cuts and immigration practices, the AP’s review of court records found. That’s about one out of every eight lawsuits in which courts have at least temporarily blocked the administration’s actions.

The Republican administration’s power struggle with federal courts — which is testing basic tenets of U.S. democracy — reflects an expansive view of executive authority that has also challenged the independence of federal agencies, a president’s ethical obligations, and the U.S.’s role in the international order.

President Donald Trump walks from Marine One to board Air Force One at Ocala International Airport, in Ocala Fla., Friday, May 1, 2026, after speaking at an event in The Villages, Fla. (AP Photo/Matt Rourke)

Judges find widespread noncompliance

The violations in the 31 lawsuits are in addition to more than 250 instances of noncompliance judges have recently highlighted in individual immigration petitions — from failing to return property to keeping immigrants locked up past court-ordered release dates.

Legal scholars and former federal judges said they could recall at most a few violations of court rulings over the full four-year terms of other recent presidential administrations, including Trump’s first time in office. They also noted previous administrations were generally apologetic when confronted by judges; the Trump administration’s Justice Department has been outright combative in some cases.

“What the court system is experiencing in the last year and a half is just qualitatively completely different from anything that’s preceded it,” said Ryan Goodman, a law professor at New York University who studies federal courts and is tracking litigation against the Trump administration.

Though Trump officials eventually backed down in about a third of the 31 lawsuits, legal experts say their treatment of court orders poses serious dangers.

“The federal government should be the institution most devoted to the rule of law in this country,” said David Super, a constitutional law scholar at Georgetown University. “When it ceases to feel itself bound, respect for the rule of law is likely to break down across the country.”

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Bolton's indictment is not the same as James and Comey

Before you add John Bolton’s indictment to the growing pile of specious prosecutions of Donald Trump’s enemies, stop and read the Justice Department’s allegations that the former national security adviser systematically shared classified information with people who weren’t authorized to read it, all in the service of writing a tell-all book, reported The Atlantic. The 18-count criminal indictment, filed yesterday, was compiled by experienced prosecutors, not political lackeys. It is detailed and precise, and relies on Bolton’s own words to implicate him.

You should question whether these charges would be brought if Trump weren’t president. Officials in Joe Biden’s administration passed on the chance to do so. And Bolton has plenty of basis to argue that he is being singled out because he is one of Trump’s most voluble and persistent critics. (He pleaded not guilty in court this morning.) But political animus doesn’t make the government’s charges baseless. This indictment does not belong in the same category as the ones against former FBI Director James Comey and New York Attorney General Letitia James. Those cases are so weak that a U.S. attorney resigned rather than present them to a grand jury, and career prosecutors told his replacement that the government would probably lose at trial.

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Bail reform fails in Baltimore--people in jail awaiting trial increases

Seven years after Maryland tried to reform the cash bail system because of its disproportionate impact on the state’s poorest residents, people who get arrested in Baltimore are being held in jail before trial at a higher rate than before the change, reported the Baltimore Beat.

While the use of cash bail has dropped since the bail reform effort, nearly two-thirds of all initial appearances in Baltimore — the first hearing an arrested person has before a court official — now end in a bail denial, a rate that has surged by about 300% since the state judiciary changed the rules surrounding pretrial release in 2017.

The population at Baltimore’s main pretrial detention center has actually risen since 2017, even as arrests have declined during the same period. People who are held in jail before trial can wait months or longer before their case concludes, even though they are presumed innocent and criminal cases in Baltimore often end without a conviction.

The biggest shift since the rule change has come from court officers denying bail entirely, according to data provided by the state judiciary and analyzed by Baltimore Beat and The Garrison Project.

The data shows: 

·         Since the bail reform rule change in 2017, the use of cash bail at initial appearances has fallen dramatically in Baltimore, from about 40% before the 2017 effort to under 5% in the first half of 2023, the most recent data provided by the state judiciary.

·         Baltimore’s overall release rate — the proportion of people freed on unsecured bond or on their own recognizance at their initial appearances — rose at first after bail reform, but then fell back below pre-reform levels.

·         In 2016, court officers in Baltimore held people without bail at their initial appearances less than 15% of the time, but bail denials quickly spiked after the rule change and have hovered around 60% since 2020.

These are not brief stints in jail. More than 60% of defendants who have an initial appearance are still in custody five days later.

The 2017 bail reform effort was designed to reduce the crushing, unequal costs of cash bail and stop judges from holding people in jail pretrial simply because they could not afford to pay — a practice that was likely unconstitutional, the Maryland Attorney General’s Office said in 2016.

Yet the population at Baltimore’s main pretrial detention center has risen from under 700 people per day on average in 2017 to more than 900 in 2023. The facility’s health care system is under intense scrutiny, and at least four people have died in pretrial custody this year, including a man who was held on $3,500 cash bail after being accused of stealing snacks from a vending machine.

Christopher Dews, a lobbyist who represents Out for Justice, a nonprofit that supports formerly incarcerated people, said the difference after the 2017 rule change was clear when he worked on the Job Opportunity Task Force’s bail fund in Baltimore. The number of people eligible to be bailed out of jail dwindled and then reached zero, he said.

The result has frustrated reform advocates who considered the rule change a victory but have since watched it backfire.

“It is quite painful, the reality that whenever we have a massive policy win for equitable criminal justice reforms, it does seem as if the state finds non-legislative, non-policy ways to thwart those successes,” Dews said. “As advocates, we prepare to defend our wins, but you can only defend wins so much from the state that has to implement those same wins.”

The pretrial system became more black-and-white after the rule change, added Nicole Belle, who was a case manager for the Job Opportunity Task Force’s bail fund from 2021 until early 2023. People facing charges were either released or held without bail.

“There was no in between,” Belle said.  

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Oregon judge to decide if gun referendum violates state constitution

An Oregon judge is set to decide whether a gun control law approved by voters in November violates the state’s constitution, reported The Associated Press.

The law, one of the toughest in the nation, was among the first gun restrictions to be passed after a major U.S. Supreme Court ruling last year changed the guidance judges are expected to follow when considering Second Amendment cases.

Measure 114 has been tied up in federal and state court, casting confusion over its fate ever since voters narrowly passed it in November 2022.

The law requires people to undergo a criminal background check and complete a gun safety training course to obtain a permit to buy a gun. It also bans high-capacity magazines holding more than 10 rounds.

Circuit Court Judge Robert S. Raschio is presiding over the trial in Harney County, in rural southeast Oregon. Raschio temporarily blocked the law from taking effect in December after gun owners filed a lawsuit arguing it infringed upon the right to bear arms under the Oregon Constitution.

In opening statements, an attorney representing the gun owners who filed the suit reiterated that claim Monday.

“This case is not about public health, public safety or public concern,” said Tony Aiello, Jr. “This is about the individual right to self defense and the right to bear arms.”

The defense said said the law doesn’t “unduly frustrate” individual rights and represents a “reasonable legislative response to public safety concerns” such as mass shootings.

“When they passed Measure 114, Oregon voters made a legislative judgment about the serious and immediate threat that large capacity magazines pose to public safety, and that judgment is entitled to this court’s deference,” said Anit Jindal, one of the lawyers representing Oregon Gov. Tina Kotek, Oregon Attorney General Ellen Rosenblum and Oregon State Police Superintendent Casey Codding.

Kotek, Rosenblum and Codding are all named as defendants in the lawsuit.

Among other things, the two sides disagree over whether large-capacity magazines are used for self-defense and whether they’re protected under the Oregon Constitution.

The plaintiffs argued that firearms capable of firing multiple rounds were present in Oregon in the 1850s and known to those who ratified the state constitution, which took effect in 1859. This, they said, pointed to “a long line of firearm evolution that was always geared toward multi-shot and repeating fire.”

The defense, meanwhile, said modern semiautomatic firearms are “technologically distinct from the revolvers and multi-barrel pistols that were available in the 1850s.” They argued that contemporary large-capacity magazines make mass shootings more deadly because they allow shooters to quickly fire more rounds without reloading.

The plaintiffs also expressed concern that Oregonians may face long wait times to obtain the permit they need to buy a gun. The defense said the process wouldn’t take longer than 30 days.

The Oregon measure was passed after a Supreme Court ruling in June 2022 created new standards for judges weighing gun laws. That decision fueled a national upheaval in the legal landscape for U.S. firearm law.

The ruling tossed aside a balancing test that judges had long used to decide whether to uphold gun laws. It directed them to only consider whether a law is consistent with the country’s “historical tradition of firearm regulation,” rather than take into account public interests such as promoting public safety.

Since then, there has been confusion about what laws can survive. Courts have overturned laws designed to keep weapons away from domestic abusers, felony defendants and marijuana users. The Supreme Court is expected to decide this fall whether some decisions have gone too far.

In a separate federal case over the Oregon measure, a judge in July ruled it was lawful under the U.S. Constitution. U.S. District Judge Karin J. Immergut appeared to take into account the Supreme Court’s new directive to consider the history of gun regulations.

Immergut found large-capacity magazines “are not commonly used for self-defense, and are therefore not protected by the Second Amendment.” Even if they were protected, she wrote, the law’s restrictions are consistent with the country’s “history and tradition of regulating uniquely dangerous features of weapons and firearms to protect public safety.”

She also found the permit-to-purchase provision to be constitutional, noting the Second Amendment “allows governments to ensure that only law-abiding, responsible citizens keep and bear arms.”

The plaintiffs in that federal case, which include the Oregon Firearms Federation, have appealed the ruling to the 9th U.S. Circuit Court of Appeals.

Ten states have permit-to-purchase laws similar to the new Oregon measure: Connecticut, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York and Rhode Island, according to data compiled by the Giffords Center to Prevent Gun Violence.

Eleven states and Washington, D.C., limit large-capacity magazines holding more than 10 rounds: California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Washington, Illinois and Vermont, according to the Giffords center. The bans in Illinois and Vermont apply to long guns.

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Accused 9/11 terrorist incompetent for trial after two decades at Guantanamo Bay

A military medical board has concluded that Ramzi bin al-Shibh, who is accused of conspiring in the Sept. 11 attacks, has a mental illness that makes him incompetent to either face trial or plead guilty in the death penalty case, according to a report filed with his trial judge, reported The New York Times.

The finding is the latest setback to prosecution efforts to bring the long-running capital cases at Guantánamo Bay to trial. Last week, a military judge threw out the confession of a man accused of plotting the U.S.S. Cole bombing, Guantánamo’s other capital case, as contaminated by his torture by the C.I.A.

The question of Mr. bin al-Shibh’s sanity, and capacity to help his lawyers defend him, has shadowed the Sept. 11 conspiracy case since his first court appearance in 2008. Then, a military lawyer disclosed that her client was restrained with ankle shackles and that the prison had him medicated with psychotropic drugs. He has disrupted pretrial hearings over the years with outbursts, and in court and in filings complained that the C.I.A. torments him with noises, vibrations and other techniques to deprive him of sleep.

It was unclear whether the prisoner was allowed to see the report, which was filed under seal; for years he has resisted the idea that he has a mental illness and should be severed from the joint trial with the man accused of being the mastermind of the Sept. 11 attacks, Khalid Shaikh Mohammed, and three other defendants. The five men are accused of conspiring in the plane hijackings in 2001 that killed nearly 3,000 people in New York City, at the Pentagon and in Pennsylvania.

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PLW: ABA Report on Plea Bargains Reveals Need for Reform

Matthew T. Mangino
The Legal Intelligencer
May 11, 2023

More than a decade ago, in a case known as Missouri v. Frye, former U.S. Supreme Court Justice Anthony Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”

Recently, the American Bar Association (ABA) released its 2023 Plea Bargain Task Force Report. Three years in the making, the report revealed that in 2018, only 2% of federal criminal cases ended in a jury trial. The task force examined how the emphasis on resolving criminal cases through plea bargains negatively impacts the integrity of the criminal justice system by creating “perverse incentives” for lawyers and judges to conclude cases quickly instead of justly.

The plea bargain, however unpopular or unseemly, is an important tool in the administration of justice. Plea bargains save the government time, money, and the trouble of actually proving a case beyond a reasonable doubt. If the plea bargain were to disappear the criminal courts would grind to a halt.

However, just because the plea bargain is needed doesn’t mean it is fair, just, and in line with some of America’s most fundamental constitutional rights.

The ABA report lays out a number of principles for reform—including that people should not be penalized with harsher sentences by exercising their right to a trial, and that people are often incentivized to plead guilty for reasons that have nothing to do with their actual guilt or innocence.

A 2018 National Association of Criminal Defense Lawyers’ report found, “There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.”

The problem is best exemplified by the reality that one in four people exonerated by DNA in the United States confessed to the crime charged. It seems astonishing that a person would plead guilty to a crime they did not commit.

Here are some things to consider. In the United States of America, a police officer can lie to an accused about incriminating evidence during an interrogation and elicit a confession, and the U.S. Supreme Court has said there is nothing wrong with such conduct.

Sixty years ago, the Supreme Court acquiesced to the potentially innocent pleading guilty. Henry C. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pleaded guilty to killing a man with a shotgun. He said in court, “I’m not guilty, but I plead guilty.”

The Supreme Court ruled in North Carolina v. Alford, “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Then there is the trial penalty—the act of accepting a plea bargain due to the fear of a harsh sentence if convicted at trial. There are reams of data to support the existence of the trial penalty. The trial penalty—and the need to have one—point to the dire state of the criminal justice system. The burden of proof—beyond a reasonable doubt—is rarely employed. The prosecution is rarely forced to prove anything beyond probable cause to make an arrest.

There is an incentive in the system to plead guilty to crimes that were charged but not committed. Police often over-charge defendants. The most serious charges are dropped and the defendant is expected, under oath, to make admissions to crimes he did not commit. The benefit of the plea bargain often comes at a high price to the defendant and to the system. The impact of race in plea bargaining cannot be overstated. The ABA report details significant racial disparities in the plea bargaining. Hannah Dean wrote in Jurist Magazine of Duquesne University School of Law, “Prosecutors’ decisions to drop or reduce charges as part of a plea bargain reveal stark racial bias. White defendants are 25% more likely than Black defendants to have their most serious charge dropped or reduced as part of a plea bargain, and Black defendants frequently receive higher sentences for the same charges as their white counterparts.”

For the most part, plea bargaining is not governed in detail by rules of court or established policy. What Kennedy called “the criminal justice system” has few safeguards and little oversight. A plea offer can be arbitrary and subject to the whim of the prosecutor. In fact, a prosecutor has no obligation to even negotiate a plea with a defendant.

In Pennsylvania if one is looking for guidance of plea bargains here is what is codified on the subject:

Plea Agreements

At any time prior to the verdict, when counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.

The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.

The ABA report’s 14 principles for reform are a small step in a long journey toward fairness and transparency in the criminal justice system. Unfortunately, those accused of criminal conduct do not have a very strong lobby. One way to change this process is through the legislation. The prospect is daunting; there are 50 different legislatures and a Congress that needs convincing.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com. 

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Candidate Trump offers glimpse into his drug fighting proposals

Donald Trump announced his candidacy for president last week.  His widely covered speech did raise some interesting criminal justice proposals, particularly with regard to drug crime.

Trump said China's President Xi Jinping had explained to him that in China, “if you get caught dealing drugs, you have an immediate and quick trial. And by the end of the day, you’re executed.” According to Bulwark, Trump said this is why drug dealers sell their poison in America instead of China: “Why should they sell there and risk their lives every time they sell, when they can come to the United States, and nobody even cares?”

The solution, Trump concluded, was to match China’s speed and severity. “That’s the only answer,” he said. “That’s the only way you’re going to solve the problem. And I hope politicians are listening. Because they should do it quickly.”

 “We’re going to be asking everyone who sells drugs, gets caught selling drugs, to receive the death penalty for their heinous acts,” said Trump. He didn’t specify drug kingpins or sellers who cause deaths. He said execution would apply to everyone who sells drugs, despite the U.S. Constitution and the precedent of the U.S. Supreme Court. This would heighten the "war on drugs" to "war crimes on drugs."

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Defense in Arbery trial object to black pastors being in courtroom

A defense attorney for one of the three White men charged in 25-year-old Ahmaud Arbery's killing objected  to nationally recognized civil rights leaders attending the trial to support the victim's family, reported CNN.

"If we're going to start a precedent, starting yesterday, where we're going to bring high-profile members of the African-American community into the courtroom to sit with the family during the trial in the presence of the jury, I believe that's intimidating and it's an attempt to pressure," attorney Kevin Gough, who represents William "Roddie" Bryan Jr., told the court following a lunch break. "Could be consciously or unconsciously an attempt to pressure or influence the jury."

In Georgia's majority White Glynn County, where the trial is taking place, race has played a central role in the case.

Last week, following a long and contentious jury selection process, Judge Timothy Walmsley said the defense had appeared to be discriminatory in selecting the jurors but allowed the case to go forward -- with only one Black member in the panel.

Just days prior, Gough had complained that older White men from the South without four-year college degrees, "euphemistically known as 'Bubba' or 'Joe Six Pack,'" seemed to be underrepresented in the pool of potential jurors that had turned up.

The Rev. Al Sharpton joined Arbery's parents Wednesday and led a prayer vigil outside the Glynn County Courthouse, asking for a just verdict in the case and calling Arbery's killing "a lynching in the 21st century."

Sharpton said that while the country has seen some positive milestones for the Black community, such as electing former President Barack Obama and Vice President Kamala Harris, "you still can't jog through Brunswick without being shot down, like you are a suspect, only because of the color of your skin."

The judge told Gough on Thursday that he was aware Sharpton would be inside, apparently taking the place of an Arbery family member, and that he did not have an objection as long as there were no disruptions.

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MCN/USA TODAY Network: Stoking expectations for a lengthy Chauvin’s sentence

Matthew T. Mangino
MCN/USA TODAY Network
April 24, 2021

Jurors in Minnesota took little more than 10 hours to convict Derek Chauvin of killing George Floyd. Guilty on all counts, offering a quick and decisive verdict in a case that riveted the nation.

The speedy result, announced in that Minneapolis courtroom, further highlights the unusual nature of Derek Chauvin’s prosecution and the exceedingly rare instance of a police officer on trial. The activation of National Guard troops and big city police on high alert intensified the fear—in the face of overwhelming evidence—the public had that Chauvin would be found not guilty.

Floyd’s death was depressingly familiar—the latest in a string of deaths at the hands of police—yet it was also an exceptional case. Brave onlookers knowing what they were seeing was a crime, videotaped the incident, showing Chauvin’s apparent “calm indifference” as he slowly squeezed the life out of Floyd, wrote David A. Graham of The Atlantic. “Condemnation came quickly—not only from many longtime critics of police violence and from ordinary citizens, but also from law-enforcement officers of all ranks around the country,” wrote Graham.

Law enforcement officers kill about 1,000 people a year across the United States. Since the beginning of 2005, 121 officers have been arrested on charges of murder or manslaughter in on-duty killings, according to data compiled by Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio. Of the 95 officers whose cases have concluded, 44 were convicted, but often of a lesser charge, Stinson told the New York Times.

In this rare instance a police officer has been convicted of murder while on duty.  The conviction resulted in a collective sigh of relief from big cities to tiny hamlets across the country. There were no violent protests, no riots, violence or unrest.  Americans, from the President to John Q. Public, thought the jury’s verdict was correct and justice was served.

In the aftermath of this historic verdict, it would be smart to pause and consider what would be the prudent way forward.  The verdict may be the impetus for meaningful reform. That momentum may be thwarted by the perception of a “lenient” sentence for Derek Chauvin. His sentence is scheduled for about eight weeks and already the media and talking-heads keep promoting the idea that Derek Chauvin could face 40 years in prison.  Forty years in prison is unlikely and here is why.

A 2019 Prison Policy Institute report indicated that Minnesota has consistently ranked in the top five of American states with the lowest imprisonment rate. Minnesota has been ranked in the top five every year but one between 1980 and 2016.

The reason for the consistent low terms of imprisonment is, in part, because Minnesota, like a majority of states, has sentencing guidelines.  That means a sentence imposed by a judge is not solely within the discretion of the judge.

The guidelines consist of a grid with two values, the prior history score and severity score.  A defendant with a history of criminal convictions will receive a score from one to six.  Every crime in Minnesota receives a severity score from one to eleven. The presumptive range of sentence is determined by where the two values meet on the grid.

Derek Chauvin has no prior record.  Second degree murder scores a 10 on the severity scale.  The range of sentences would be a minimum of 73 months to 103 months.

According to the Minnesota Sentencing Guidelines, judges are required to comply with the presumptive sentencing ranges.

However, the rules define a process through which a court may deviate from the guidelines known as a “departure.” If there’s a compelling reason to support a departure, the judge may impose a sentence higher or lower than the presumptive range.

A sentence may be increased if the court finds the presence of aggravating circumstances. Conversely, the judge may reduce a sentence based on mitigating circumstances. Based on the guideline, getting anywhere near 40 years seems unlikely.

Chauvin’s conviction can be a watershed moment in policing reform, but unrealistic expectations regarding sentencing could lead to disappointment, distrust, or worse, unrest.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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The conviction of a police officer for on-duty killing exceedingly rare

According to The New York Times, law enforcement officers kill about 1,000 people a year across the United States. Since the beginning of 2005, 121 officers have been arrested on charges of murder or manslaughter in on-duty killings, according to data compiled by Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio. Of the 95 officers whose cases have concluded, 44 were convicted, but often of a lesser charge, he said.

Convictions include cases like the killing of Laquan McDonald in Chicago, for which Jason Van Dyke was sentenced to nearly seven years in prison, and the killing of Justine Damond in Minneapolis, for which Mohamed Noor was sentenced to 12.5 years.

Many officers who avoided criminal convictions have been fired, like three of the other officers in the McDonald case, and Daniel Pantaleo, who used a chokehold on Eric Garner on Staten Island.

More recently, officers involved in the deaths of Mr. Floyd in Minneapolis and Rayshard Brooks in Atlanta have been swiftly indicted on murder charges. Mr. Brooks’s case in particular appears to reflect changing standards; because he grabbed and fired an officer’s Taser before he was killed, several experts said they doubted charges would have been brought had the death occurred before the wave of protests and police scrutiny that followed Mr. Floyd’s death.

But two cases do not prove that prosecutors have grown more willing — or have yielded to increased pressure — to hold officers criminally accountable. Professor Stinson said any such uptick is so far statistically insignificant. And several equally high-profile investigations of police killings have resulted in no indictment.

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Jury continues to deliberate in Derek Chauvin trial

The fate of Derek Chauvin, the former Minneapolis police officer accused of killing George Floyd, is now in the hands of jurors, who will continue to deliberate today in the landmark case that forced a national debate on race and policing, reported the Washington Post.

The eyes of the nation are focused on Minneapolis and bracing for the outcome of the verdict, remembering how Floyd’s death touched off weeks of civil unrest in the United States and brought millions into the streets worldwide in protests for social justice.

The jury of 12 people — six White, four Black and two multiracial — listened to nearly six hours of closing arguments Monday as the prosecution and defense ended the case just as they began three weeks ago, presenting vastly different views of the circumstances that led to Floyd’s Memorial Day death on a Minneapolis street.

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New report on the 'trial penalty' in New York

The New York State Association of Criminal Defense Lawyers (NYSACDL) and the National Association of Criminal Defense Lawyers (NACDL) released the first-ever report on the decades-long impact of the trial penalty in New York State—The New York State Trial Penalty: The Constitutional Right to Trial Under Attack—including statistical analysis of the prevalence of the trial penalty, personal stories demonstrating how the issue impacts all New Yorkers by effectively removing a critical check on the state’s justice system, and recommendations for how policymakers and prosecutors can reverse this trend and protect New Yorkers’ constitutional rights, according to a Press Release.

Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined. As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries. One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea. The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.

To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.

Key findings from the resulting report include:

• 94% of surveyed criminal justice practitioners agreed that the trial penalty plays a role in criminal practice in their county. Data analysis supported practitioners’ insights — in 66% of cases sampled, defendants experienced a trial penalty.
• The trial penalty in New York manifests in numerous ways, including by limiting transparency and removing a critical check on law enforcement overreach and abuse.
• The trial penalty is driven by a broad range of different factors — including aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements, and mandatory minimums — and therefore requires a broad range of solutions to overcome.

The report outlines 15 policy recommendations, which can be summarized in three overarching categories:

·         Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.

·         Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.

·         Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

“This report makes absolutely clear the trial penalty has metastasized in the system well beyond individual punishment. It is a threat to our constitutional rights and simultaneously allows—even encourages—the abuse of power by prosecutors and judges and too often buries police misconduct which never sees the disinfecting light of a courtroom,” said Susan Walsh, Trial Penalty Project Chair at NYSACDL. “Policymakers must recognize the devastation the trial penalty has caused in New York and take steps to reform the system. Some changes, like collecting data to further study the problem, are simple. Others, like providing greater sentencing flexibility and opportunities to revisit excessive sentences may be more complex. But we must resist the systematic assault on the fundamental right to a trial. No one, including defense lawyers, should be complacent about practices that inhibit the exercise of basic rights and punishes those merely for asserting them.”

“Punishing those who choose to exercise their right to a jury trial is not just unconstitutional, it lets prosecutors and law enforcement exercise authority unchecked, with disastrous results,” said Norman L. Reimer, NACDL Executive Director. “The ability to coerce the waiver of basic rights under threat of the trial penalty undermines transparency, shields unlawful law enforcement from judicial review, and perpetuates racial disparity in the criminal legal system.”

In 2018, NACDL released a groundbreaking report detailing the consequences of the trial penalty across the country, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. In 2020, NACDL and FAMM (formerly known as Families Against Mandatory Minimums) released a documentary film on the trial penalty, “The Vanishing Trial.” A trailer for the film can be viewed here.

 

95-year-old former Nazi guard extradited from Tennessee to Germany

 A 95-year-old man who lived in Tennessee was deported to Germany on Saturday, one year after a federal judge found that he had served as an armed guard at a Nazi concentration camp where prisoners were forced to work outdoors “to the point of exhaustion and death.”

The deportation of the former guard, Friedrich Karl Berger, capped what could be the last prosecution by the U.S. government of collaborators in Nazi war crimes as most of the targets have died in the more than 75 years since the end of World War II.

The Justice Department said Mr. Berger had served as an armed guard at a subcamp of the Neuengamme concentration camp near Meppen, Germany, where Danes, Dutch, French, Italians, Jews, Latvians, Poles and Russians as well as political opponents of the Nazis were imprisoned in “atrocious” conditions and forced to dig anti-tank fortifications in the dead of winter.

At the end of March 1945, when the Nazis abandoned Meppen to escape advancing British and Canadian forces, Mr. Berger helped to guard the prisoners during their forcible evacuation to the main camp, a nearly two-week march under inhumane conditions that claimed the lives of some 70 prisoners, the department said.

The entire Neuengamme system — which included scores of camps — imprisoned some 100,000 men and women, about 40,000 to 55,000 of whom died, the Justice Department said. Between 3,000 to 4,000 people were imprisoned at two Meppen subcamps, one of which Mr. Berger guarded.

During a two-day trial in February 2020, Mr. Berger acknowledged that he had guarded prisoners to prevent them from escaping as they worked from dawn to dusk, and as they traveled to work sites and back to the camp, the Justice Department said. Mr. Berger also acknowledged that he never requested a transfer from concentration camp guard service and that he had continued to receive a pension from Germany based in part on his “wartime service.”

In November 2020, the Board of Immigration Appeals upheld an immigration judge’s decision that Mr. Berger was removable under the 1978 Holtzman Amendment to the Immigration and Nationality Act because his “willing service as an armed guard of prisoners at a concentration camp where persecution took place” constituted assistance in Nazi-sponsored persecution.

“Berger’s removal demonstrates the Department of Justice’s and its law enforcement partners’ commitment to ensuring that the United States is not a safe haven for those who have participated in Nazi crimes against humanity and other human rights abuses,” Monty Wilkinson, the acting attorney general, said in a statement.

“In this year in which we mark the 75th anniversary of the Nuremberg convictions, this case shows that the passage, even of many decades, will not deter the department from pursuing justice on behalf of the victims of Nazi crimes,” Mr. Wilkinson said.

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John Oliver takes on the power of Prosecutors

CLICK HERE to watch the segment.

John Oliver’s Last Week Tonight has untangled some of the knottier aspects of the criminal justice system in the past, including the public defender system, reported Slate. The show looked to the other side of the courtroom, at a group that often has an outsize amount of power over a defendant’s fate: prosecutors. Just as we take phrases like “user agreement update” or “Tyler Perry presents” for granted, Oliver argues that “prosecutors will decide” has become such a common refrain in local news stories that you may not seriously consider what it means, even though it’s actually pretty important.

Not only can prosecutors determine whether to bring charges against a person, they can also pressure even innocent people to accept plea bargains to avoid the prospect of a harsher sentence from a judge or jury if wrongfully convicted. And if a defendant does choose to go to trial instead, prosecutors have a number of tactics to influence the outcome, including manipulating jury selection and withholding evidence that might help the defendant’s case from the other side.

Commission to study the impact of COVID-19 on criminal justice system

The Council on Criminal Justice (CCJ) has launched a national commission to assess the impacts of COVID-19 on the criminal justice system, develop strategies to limit outbreaks, and produce a priority agenda of systemic policy changes to better balance public health and public safety.

Led by former U.S. Attorneys General Alberto Gonzales and Loretta Lynch, the National Commission on COVID-19 and Criminal Justice will:

Evaluate the pandemic’s impact on the four major sectors of the justice system (law enforcement, courts, corrections, and community programs);

Identify the most effective ways to minimize the spread of COVID-19 and the impact of future pandemics on the proper functioning of the justice system, and on the people who work in and are served by it; and

·         Establish a priority agenda of policies and practices that should change, or remain changed, based on what the pandemic and response have revealed about the system’s fairness and effectiveness, particularly for communities of color.

·         At its opening meeting, the Commission was presented with the first in a series of reports presenting new research on COVID-19 and criminal justice. The study, by Richard Rosenfeld and Ernesto Lopez of the University of Missouri-St. Louis, examined crime trends from 27 cities leading up to the pandemic and through June. It found that:

·         Property and drug crime rates fell significantly, coinciding with stay-at-home mandates and business closings. Residential burglary dropped by 20% between February and June 2020. Larceny and drug offenses decreased by 17% and 57%, respectively, between March and June 2020. These declines reflect quarantines (residential burglary), business closings (larceny), and reduced police and street activity (drug offenses).

·         One exception to the drop in property crime was commercial burglary, which spiked by 200% for a single week beginning in late May. The spike is likely associated with the property damage and looting at the start of nationwide protests following the killing of George Floyd.

·         Rates of violent crime showed little change early in the pandemic but began to increase significantly in late May. Homicides (37%) and aggravated assaults (35%) rose significantly in late May and June. The increases could be tied to diminished police legitimacy in the wake of protests after Floyd’s killing.

·         Robbery rose significantly – by 27% — between March and June 2020.

·         Domestic violence also rose, but the increase was not significantly greater than in previous years. In addition, the finding was based on data from only 13 of the cities studied, and thus requires further examination.

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GateHouse: Trials of the century revisited

Matthew T. Mangino

GateHouse Media

June 26, 2020

The O.J. Simpson trial generated some renewed interest with the Netflix docudrama “The People v. OJ Simpson,” chronicling the 1998 epic murder trial referred to as the “trial of the century.” In 1994, the football Hall of Famer’s ex-wife Nicole Brown and her friend Ronald Goldman were stabbed to death outside her home in Los Angeles. After more than a year of mesmerizing television coverage, Simpson was acquitted.

The 20th century had more than one “trial of the century.” In fact, about 100 years ago, there were two dramatic murder trials splashed across newspapers nationwide at about the same time - one in Massachusetts, the other in Illinois.

There were two men accused in each case. Their names have withstood the test of time - Sacco and Vanzetti and Leopold and Loeb - the result of each case is worth another look.

In 1920, Italian immigrants Nicola Sacco and Bartolomeo Vanzetti were accused of killing the paymaster and guard at a shoe factory in Braintree, Mass. in a plot to rob the company’s payroll.

In 1924, Nathan Leopold Jr. and Richard Loeb, two wealthy University of Chicago students, rented a car and stocked it with tools to commit the “perfect crime.” They drove to a nearby Chicago park and waited for the perfect victim. They found Bobby Franks.

The two young men lured the 14-year-old Franks into the car. They were subsequently accused of murdering and mutilating Franks for the thrill of the kill.

Although the prosecution of Leopold and Loeb was heralded as the “trial of the century,” the case was not really a trial at all. Renowned criminal defense attorney Clarence Darrow changed the young men’s pleas from not guilty to guilty and focused his efforts on preventing their execution.

On the other hand, Sacco and Vanzetti proclaimed their innocence and went to trial. They were convicted, and that’s when their case got a little weird. After their appeals were unsuccessful, a man serving a life sentence for murder came forward and said that he and others had killed the paymaster and guard.

The Massachusetts Supreme Court refused to act on the new evidence. At that time, only the trial judge had the authority to reopen a case on the ground of newly discovered evidence.

Protesters took to the streets across the United States on behalf of Sacco and Vanzetti. In New York City and Philadelphia, violence erupted.

Darrow chose to focus on saving the lives of Leopold and Loeb, his two young sadistic clients. Darrow asked the judge, “Why did they kill little Bobby Franks? Not for money, not for spite; not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way.”

He continued to argue, “Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!”

Darrow’s condemnation of the death penalty concluded, “Your Honor, what excuse could you possibly have for putting these boys to death? You would have to turn your back on every precedent of the past. You would have to turn your back on the progress of the world. You would have to ignore all human sentiment and feeling. ... You would have to do all this if you would hang boys of 18 and 19 years of age who have come into this court and thrown themselves upon your mercy.”

The judge was impressed. He sentenced the admitted killers, Leopold and Loeb, to life in prison.
Sacco and Vanzetti did not fare as well. Although adamant about their innocence, and having another man come forward admitting to the crime, they could not get a new trial. They were executed in 1927.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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SCOTUS rules juries in criminal trials must be unanimous

The Supreme Court ruled that juries in criminal trials must be unanimous to convict a defendant, the Associated Press reports.

The decision settled a quirk of constitutional law that had allowed divided jury votes to result in convictions in Louisiana and Oregon.

The court’s ruling overturned the conviction of Evangelisto Ramos. He is serving a life sentence in Louisiana for killing a woman after a jury voted 10-2 to convict him in 2016. Oregon is the only other state that allows non-unanimous convictions for some crimes.

Louisiana voters changed the law for crimes committed beginning in 2019, requiring unanimous verdicts.

Now the same rules apply in all 50 states and in the federal courts: Juries must vote unanimously for a conviction.

The outcome will affect defendants who are still appealing their convictions. For defendants whose cases are final, it will take another round of lawsuits to determine whether the high court ruling applies to them. 

The opinion was issued by Justice Neil Gorsuch, who reviewed the racist origins of non-unanimous jury rules, quoting a Louisiana constitutional convention statement that 10-to-2 verdicts were to be permitted in order “to ensure that African-American juror service would be meaningless.”

Courts in both states “have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules,” Gorsuch said.

In a concurring opinion, Justice Sonia Sotomayor said, “Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history.”

In a dissent, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Elena Kagan, cited a 1972 high court decision in a case called Apodaca that the Constitution’s Sixth Amendment permits non-unanimous verdicts in state criminal trials.

Alito said, “In all the years since then, no Justice has even hinted that Apodaca should be reconsidered. Understandably thinking that Apodaca was good law, the state courts in Louisiana and Oregon have tried thousands of cases under rules that permit such verdicts. But today, the Court does away with Apodaca and, in so doing, imposes a potentially crushing burden on the courts and criminal justice systems of those States.” This summary was prepared by The Crime Report.

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Protecting rights as court proceedings move to the virtual world

Monitoring court hearings has become difficult, in some cases even impossible, for dozens of court watch programs scattered throughout cities and towns in the country. They rely on volunteers to sit in open court and take notes in the interest of transparency and accountability. But they said their access has been slowed or halted as virtually every system in the country suspended or reduced public court and moved online during the pandemic, reported The Marshall Project.

In New York City, anyone wanting to see a hearing has to go to the courthouse and watch on a screen there, possibly risking contagion. In Los Angeles and Miami, officials have not given court watchers a way to join their courts’ video conferences. In New Orleans, access has depended on individual judges, with some being more reliable than others.

It’s not just a matter of convenience, the court watchers said. Public trust in what happens in court is eroded when they—or anyone else—can’t witness it, they said, and their presence helps ensure the courts function as they are supposed to.

“What we've seen over the past few years is that our presence really does matter,” said Zoë Adel, a lead organizer with the New York City court watch. “It changes people's behavior—judges set lower bail—when they know court watchers are watching and they're being held accountable.”

To be sure, most judges and court administrators have had little choice but to close courthouses under state orders or health guidelines aimed at slowing the virus. To be able to conduct hearings that can’t be postponed, they are joining many other Americans in adapting quickly to online platforms many had never used before, leading to technical problems. As NPR reported, other public meetings that used open online conferencing have at times been targets of harassment.

“This was the first time we've done Zoom proceedings, and we rolled it out fast,” said District Court Judge Keva Landrum in New Orleans, referring to a popular video conference platform. She said judges wanted to make sure it would work before finding out how to allow public access. “Now that it has been going well and judges are more settled with it, I think judges will be increasingly willing to provide access to interested parties,” she said.

Shortly after speaking with Landrum, The Marshall Project was granted access to observe a magistrate court session on Zoom, and faced no difficulties following along. On Saturday, Landrum provided access to Court Watch NOLA moving forward.

The move from physical court to online conferencing got a boost in the CARES coronavirus stimulus act, which allows the historically camera-averse federal judges to use video for some hearings during the national emergency. But the hastily written law left out language guaranteeing public access to those video proceedings.

On state and local courts, access has been spotty as each court comes up with its own rules on the fly, court watchers said.

The shift is happening so rapidly that legal observers are still largely playing catch up. Douglas Keith, counsel at the Brennan Center for Justice, a progressive advocacy organization, said the group was still piecing together the constitutional questions that video court proceedings might raise.

“How will remote hearings affect the quality of representation in criminal cases, and the ability of defendants to speak to their lawyers with the frequency and privacy they need? How will appearing on video affect the jury’s and judge’s view of a defendant?” he said, to name a few.

Keith noted that in the 1984 case Waller v. Georgia, the U.S. Supreme Court declared public trials to be “essential” for the people accused because “the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.”

Public access to the courts is particularly important during disasters, said Simone Levine, executive director of Court Watch NOLA in New Orleans.

"When a community is in an emergency, the community's fear and distrust of public agents and officials increase and in these times it is integral that public officials increase their transparency,” she said.

The New York City program, organized by some public defenders, the grassroots VOCAL-NY group and the Brooklyn Community Bail Fund, focus on first appearances, when judges typically decide whether a recent arrestee will be detained pretrial or allowed to go home. They’ve fully stopped observing courts in the midst of the city’s stay-at-home order. That concerned Adel, “especially at a time like now where, if a judge sets bail, or someone is otherwise incarcerated pre-trial that the stakes are so much higher,” given the acute risk of contracting coronavirus in jail.

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