From the President: Emerging From COVID: The New Frontier

By Chris Adams, NACDL Immediate Past President

May 2021 issue of The Champion

Three weeks ago, I was awakened by a shrill alarm at 4:00 a.m. I needed to make the morning’s first flight out of Charleston for a suppression hearing three states away. This may have been the first time my alarm clock woke me up since March 6, 2020, and it was definitely my first flight for a client in 14 months.

All my travel muscles felt atrophied. My trusty roller bag wasn’t in its usual spot, having been banished to the highest and most out-of-the-way spot in the closet. I had to use a chair to get the bag down. A layer of dust had accumulated on the top of the suitcase. Without a hint of dexterity, I stuffed items into the bag and set off for Charleston International Airport. Once I got to the TSA checkpoint, I had to return to my car to retrieve the suit coat that I had forgotten to grab in my haste to get to the gate.

In life before COVID-19, I was a road warrior with finely honed travel skills. I had a routine that I could depend on. Much of my out-of-state travel was to defend clients facing the federal death penalty. With ease, I would zip from jurisdiction to jurisdiction to visit my capital clients, steer their mitigation investigations, and litigate their cases. Now, one pandemic and two Moderna shots later, I wonder if the adjustment back to in-person visits and court appearances will feel as awkward as resuming travel.

To skip ahead, our suppression hearing in Baltimore went great: my co-counsel and I remembered where to sit in the courtroom, how to cross-examine the task force officer, and how to make arguments to a smart and well-prepared judge. We even won one of the motions (the officers relied only on landlord consent for the warrantless search of our client’s room after he had been arrested but before his term of tenancy had expired). Winning the suppression motion was great, but the client sitting next to us was a virtual stranger to us — and we to him.

On the flight home, I thought about the challenges that postvaccination court reopenings will bring. Some of the problems will be obvious to our judges. Yet some of the problems will not be as obvious, and we will need to educate and advocate so that our clients can receive their fair day in court. Here are the major problems and opportunities I anticipate we will face in the upcoming months.

First, through no fault of our clients, we have fractured relationships with our in-custody clients that we have to repair. In working with clients, trust is earned. This is true for retained counsel and triply true for public defenders and appointed counsel. I was taught that the best way to earn the trust of a client is to have regular contact with him, listen with an empathic ear, and follow through on every promise. Yet, due to the pandemic, the jails did not permit me to have in-person visits. I did not have an in-person visit with an incarcerated client in more than 14 months. Many (likely, most) clients are simply not going to trust a lawyer who hasn’t been there in person for more than a year.

Video visits were helpful in the pinch of a pandemic, but they are inadequate in developing meaningful, trusting relationships. Many jails innovated during the pandemic to provide legal video visits for the first time. I appreciate the efforts by the various law enforcement officials who launched these new video systems, which were critical for checking in with clients. However, video visits are a poor forum for reviewing discovery and delving into the highly personal topics critical to our clients’ cases.

Moreover, none of us can be entirely confident that the legal video visits hosted by untested video systems are confidential. At one federal facility, my team had a standing call with our client on Tuesdays at 9 a.m. One Tuesday, I logged in to our video room to discover another inmate being debriefed by law enforcement. Nobody in that video visit was aware that I had stumbled into their private debriefing. I quickly logged off. The point is that I had no way to ensure the security and confidentiality of my Zoom legal visits with clients. Consequently, I spent the pandemic steering clients away from discussing the facts of their cases over potentially unsecured video systems.

Second, through no fault of our clients, investigation and case preparation have stalled out over the past year. The pandemic provided many lawyers the ample opportunity to review discovery, but our investigators and mitigation specialists, who are dependent on in-person interviews, were unable to do their jobs. In accordance with CDC guidance, investigators and mitigation specialists were unable to travel or conduct in-person witness interviews. Many of the agencies and businesses from which records and evidence would ordinarily be sought were closed to the public, and many of the employees were terminated or working from home. Even if they could track down a live witness, most people were hostile to interacting with others from outside of their bubbles. As a result, investigation and case preparation will have to start from scratch in many of our cases.

Third, prospective jurors and witnesses may not be vaccinated or able to safely appear in court for weeks or months to come. While most lawyers and judges I know are fully vaccinated, many of our clients are not, due to delayed access in prisons and jails.¹ And the fact remains that the politicization of the COVID-19 virus has resulted in many people refusing to be vaccinated. According to the CDC, as of May 27, 2021, only 40 percent of the U.S. population is fully vaccinated.² We have a long way to go to achieve herd immunity, which is thought to require at least 70 percent of the population to be vaccinated. Even assuming that the current vaccines are able to protect us from the variants that continue to emerge, until herd immunity is achieved, COVID will continue to impact the willingness of prospective jurors and witnesses to comply with summons and subpoenas.

As society’s gears begin to turn more regularly, we must face these challenges head-on, bringing them to judges’ attention to advocate for our clients.

But alongside those challenges, the pandemic has created pockets of opportunity. For example, the severe impact of COVID-19 on pretrial detainees should be grounds for more lenient sentences for the defendants who are ultimately convicted. There is a body of case law, upon which we can expand, that encourages judges to impose a more lenient sentence if the pretrial incarceration has been unduly harsh.³

Our incarcerated clients have been in facilities that failed to follow basic CDC guidance regarding social distancing, cleanliness, and healthy air. Approximately 400,000 prisoners have tested positive for COVID-19, and more than 2,600 lost their lives.⁴ The rates for COVID infection and death for prisoners has been roughly four times higher than that of the general population. Units within facilities have been locked down repeatedly to stop the spread of the virus, resulting in an even more restrictive and punitive environment. Additionally, many prisoners have pre-existing conditions that make them more vulnerable to the virus, which increases the level of anxiety. The total impact of these factors is that many prisoners have suffered an inordinate amount of stress in the pandemic that merits leniency at sentencing.

Our members have begun to successfully litigate this issue to win more favorable sentences for their clients. Our very own President-Elect Martín Sabelli, a creative and skilled advocate, recently won a significant downward departure based on the impact of COVID on his client.

As we shake off the pandemic cobwebs, I think we will remember where to sit in the courtroom and how to cross-examine witnesses. But we also must reckon with the new obstacles that COVID-19 ushered in — obstacles that, I’m afraid, are here to stay, at least for a while.

Notes

1. https://www.nytimes.com/2021/05/22/us/covid-prison-vaccine.html.

2. https://covid.cdc.gov/covid-data-tracker/#vaccinations.

3. See United States. v. Spano, 476 F.3d 476 (7th Cir. 2007); United States v. Ortiz, 2007 WL 4208842 (D.N.J. Nov. 27, 2007) (variance is appropriate when pretrial and presentence conditions of confinement are harsher than BOP); United States v. Carty, 264 F.3d 191 (2d Cir. 2001); and, United States v. Pressley, 345 F.3d 1205 (11th Cir. 2003) (pre-Booker case, district court erred in holding downward departure not available for conditions of presentence confinement).

4. https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons (As of May 18, 2021, 397,682 prisoners have tested positive for COVID-19 with 2,680 deaths.).

5. https://abcnews.go.com/Health/wireStory/prisoners-us-covid-19-1700-died-74797059.

About the Author

After spending 15 years as a public defender and nonprofit lawyer, Chris Adams (NACDL LIFE MEMBER) opened his private practice in 2007. He devotes half of his practice to defending men and women facing the death penalty in federal and state courts throughout the country. He also defends people and businesses facing allegations or investigations in federal and state courts.

© 2021, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.

National Association of Criminal Defense Lawyers