The Wisconsin Supreme Court late Sunday ordered all jury trials statewide postponed until after May 22, and mandated remote hearings by phone or other means for most other matters, following the lead of other states and several counties.
Two conservative justices dissented in regard to delaying all trials, saying it violates defendants’ and sometimes victims’ rights to a prompt trial.
But continuing to hold trials amid the COVID-19 public health crisis would present substantial health risks to all persons involved, from judges and jurors to witnesses and victims, the court found.
“We are taking these steps not only to protect public health, but also to help ensure continued and effective operation of all our courts for the people of Wisconsin,” said Chief Justice Patience Drake Roggensack in a news release accompanying the order.
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“Our circuit court judges have taken strategic, pro-active steps to keep each of their courts operating as safely and smoothly as possible since the start of this public health emergency. These orders provide another tool to use in that effort.”
The court’s order notes that many potential jurors would be at higher risk for contracting COVID-19, and would be excused, which could lead to questions about the validity of the resulting panel. And every day, the odds increase that a juror in a trial would become sick from COVID-19, leading to isolation of remaining jurors and other participants in the trial, raising the chances of a mistrial.
Healthy jurors could hardly be expected to give the same attention to a case as they might if not for the health crisis, the court noted; their anxiety of being forced to serve might lead to them to rush to a verdict simply to escape the confines of the courtroom and threat of exposure.
The order came over the strong dissent of Justices Rebecca Bradley and Daniel Kelly.
“The constitution does not countenance such an infringement,” on the rights of criminal defendants, Bradley wrote. “Emergency does not create power.”
If a public health emergency can justify a 60-delay in a defendant’s right to a speedy trial, Bradley wrote, the freedom of speech, religion, press and gun possession could also be subject to “suspension by judicial decree.”
While a trial may be delayed, it is only after consideration of specific factors on a case-by-case basis, and Sunday’s order “precludes every circuit court … from exercising its discretionary power to weigh” those factors — “including the interests of the victim” before postponing a trial to a later date.
The order finds that the health risks from the current COVID-19 pandemic constitute “good cause” for the temporary changes, even the suspension of jury trials.
“Indeed, failing to temporarily suspend jury trials in the courts of this state would create an unacceptable risk of a miscarriage of justice,” the order reads.
It also allows for circuit courts, or any parties appearing at those trial courts, to seek an emergency exception to Sunday’s order.
A week or more ago, some of the circuit courts in the state’s largest counties, as well as U.S. District Court for the Eastern District of Wisconsin, announced they were taking immediate steps to curtail court activities requiring in-person contact, including postponing nearly all jury trials.
But some counties continued business as usual despite the daily worsening of the health crisis.
The Wisconsin Association of Criminal Defense Lawyers wrote to Roggensack last week urging the high court to impose some consistent statewide restrictions.
In a separate, unanimous order, the high court also suspended all in-person court proceedings, including in appellate courts, through April 30, and required court officials to use email, phones and video conferencing. On a case-by-case basis, in-person appearance may be required for certain essential proceedings if no technological workaround is possible.
The order specifies that parties and their lawyers can request a hearing on scheduling, which must be done telephonically or by video. Some defense attorneys had complained that some judges were insisting they appear in person last week for simple scheduling conferences.
“This order is intended to be interpreted broadly for protection of the public, court staff and judges from the risks associated with COVID-19.”
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