Sunday, November 15, 2020

What's going to happen when we have jury trials again in April 2021?

 Assuming we have trials again in the Spring, how is it going to work?  Are we going to be able to get enough jurors?  Will judges accommodate all of the scheduling nightmares that lawyers are going to have? Will everyone still be required to wear masks during the trial?

Meantime, grand juries are supposed to start up on Tuesday in SDFLA.  There will be two different grand juries and each one will meet once a week (one on Tuesday and one on Thursday).  Apparently, cases for in custody defendants will proceed first.  Then cases with statute of limitations issues.  But with such limited grand jury time, it will be interesting to see how it works.  Will the grand jurors even show up?  How will prosecutors actually schedule the time?  Will there be shortcuts?

In other parts of the country, defendants have been asking for -- and receiving -- discovery regarding the grand jury process.  Who is being excused?  Why? Is it a fair cross-section?  An so on.

Hopefully, the pandemic has changed our idea of bond.  The truth is, almost no one flees.  Ever.  And yet, we hold so many people no bond pre-trial.  During the pandemic, more people were released on bond than ever before... and unsurprisingly to defense lawyers (and prosecutors), no one fled.  Still, we held so many people in pre-trial detention.  In Texas, 80 percent of inmates who died from COVID-19 had not been convicted. These are people who were presumed innocent.  Sickening.  Our district is particularly bad when it comes to bond pending appeal.  Other districts freely grant bond pending appeal, even after trial, in white collar cases.  Why don't we?

And in other news, Justice Alito thought it was a good idea to go and give a political speech at the Federalist Society.  Very on brand for him and we know this is how he feels, but does he really need to go out there and say it?  From the Boston Globe:

“This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

“I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again.

As this WaPo editorial wonders, why is he so angry when his side is winning?

Alito spoke quite a bit about liberty and justice in his address, but he is literally the most right wing Justice in a generation on the 4th Amendment and other criminal justice issues.  He's all in for the Second Amendment and Religious liberty... the other rights, not so much.


Anonymous said...

"Hopefully, the pandemic has changed our idea of bond."

Not for the better...

Anonymous said...

He was correct to call out that insane brief filed by Whitehouse and the other seantors.

Stephen said...


Robert Kuntz said...

Regarding Justice Alito's speech, in which he held forth on various principles in a way that surprised no one who has followed his decisional history, I find the outrage from the WaPo (and the left writ large) rings a little hollow. That's because they seemed perfectly content (one might even say gleeful) for RBG to speak repeatedly, publicly and to outlets such as CNN and the New York Times about her contempt for Donald Trump. Indeed, in reading the various recent denunciations scolding Alito for "politicizing the Court," I did not see a single reference to RBG's conduct in 2016.

I have trouble believing this was an oversight. Rather, I suspect that "politicizing the Court" is just fine with these commentators, so long as . . well, you know.

Herewith the necessary disclaimer: I despise Mr. Trump utterly, and understand why one might have contempt for him. But Presidents, even ones you don't like, come and go. In the long run, these individuals matter far less than the integrity of our institutions.

A supreme court justice stating her views about the sitting POTUS in the way RBG did is far more corrosive to the integrity of the Court than Alito's defense of certain conservative principles.

But I can at least bring myself to say I wish ALL the justices would save their pronouncements for their decisions, their dissents or their memoirs.

Anonymous said...

RBG also spoke before, and received awards from, ACLU and Planned Parenthood, who are serial litigants before the Court. Fed Soc doesn't file lawsuits.

Robert Kuntz said...

Excellent point, Anonymous @ 11:58.