About a year ago, one of attorney Alan Rubin’s clients was facing larceny charges in Franklin County and was nearing a jury trial. Then came the pandemic.
His client’s case was “on the verge of being tried, and it got shut down almost a year ago now,” said Rubin, who’s in charge of the Northampton office of the Committee for Public Counsel Services, which provides legal representation for those who can’t afford it. Rubin’s office covers Hampshire and Franklin counties.
“He’s still waiting and obviously very frustrated, but he’s not in custody,” Rubin said.
While none of Rubin’s clients are waiting in jail, “it’s a stress to have your case hanging over your head,” he said.
Jury trials in Massachusetts have been on hold for months because of the pandemic. They were going to start in some courts in October, then the date got pushed to November, then the state allowed a few courts to hold trials in January as part of Phase 1 of its plan. Now they are on pause until at least Feb. 12.
“The Trial Court wants to assess how these (trial proceedings) have gone before moving forward,” Jennifer Donahue, a spokesperson for the state Supreme Judicial Court, wrote in an email.
With jury trials on hold, there’s a backlog of cases and lawyers worry about how they will be resolved.
“There will be a ripple effect of backlogs that will delay everything for months to come,” Rubin said.
In Phase 1 of the state’s plan, which is currently on hold, the only Western Massachusetts courts that were scheduled to be open for jury trials were courts in Springfield and Greenfield. There was a trial scheduled for Greenfield in late January, but the state canceled it, according to First Assistant District Attorney Steven Gagne in the Northwestern District Attorney’s Office. It won’t start until at least mid-February, and “this would be the first trial held in either Hampshire or Franklin County since early March 2020,” Gagne said.
In Northampton District Court, the Northwestern District Attorney’s Office has 53 criminal cases ready to go to trial, and in Greenfield there are 35, according to Gagne. In Eastern Hampshire District Court in Belchertown, there are 42.
In Hampshire County and Franklin County Superior courts, Gagne estimates each has 30 to 40 cases that are ready for trial.
“I would say that’s just ballparking it. Typically, we would have no more than 12 to 15 cases on any given month that are scheduled for trial,” he said of each superior court before the pandemic. When trials eventually resume, “I’m not quite sure how we are going to catch up.”
Gagne estimates there are 20 to 30 cases ready to be tried in Orange District Court as soon as jurors are made available, though none are being scheduled at this time.
The vast majority of cases the district attorney’s office prosecutes do not go to trial and are resolved through options like plea bargains or probation, he said.
“But for that handful of cases that do need to go to trial because of the seriousness of the offense like a murder or the parties are unable to work it out or the defendant maintains his innocence — those cases are all on hold. Right now, it’s still quite unclear how that’s going to change,” Gagne said.
He added, “It’s frustrating not to be able to try these cases because, over time, cases generally don’t get better with age. Witnesses can move, memories can fade. Law enforcement officials can retire and move on … It delays our ability to achieve some sense of justice where there are victims.”
Franklin County Sheriff Christopher Donelan said the court backlog has directly resulted in low numbers of inmates, noting that the house of correction in Greenfield had 139 inmates as of Wednesday.
He explained there are a significant number of arrests locally and those placed into custody are kept at the jail or a local police department until their arraignments, which he said are being held during the week with the same regularity as before the pandemic. However, Donelan said, most inmates make bail after a bail hearing and are released until their next court appearance, which is significantly delayed due to the backlog.
“Until they have trials, they’re not going to have convictions and they’re not going to have sentencings,” the sheriff explained.
Donelan said the Franklin County Jail and House of Correction has not been anywhere close to capacity since April of 2020, when the decision was made to reduce close-quarters contact by releasing roughly 20 minimum-security inmates, who finished their sentences at home while being electronically monitored using ankle bracelets. He said inmates approaching the end of their sentences were picked for release, and about 160 inmates remained at the jail at that time.
Although jury trials aren’t happening, Gagne noted there’s still a lot of pretrial litigation occurring, most of it virtually.
Melissa Doran, first assistant clerk of the Hampshire Superior Court, also emphasized that point.
“We would certainly like to get the point across that we are having hearings every single day in the court and people are able to have their cases heard, but that’s a significant obstacle with the trials,” she said. “It’s a concern that once we’re ready there might be a lot of cases that are going forward. We’re fortunate because we’re a small court. We’ve been doing a lot of business every day.”
While some court business can still be done, some hearings aren’t suited to be held virtually, Rubin said.
“Any hearing where you’re going to have live testimony from witnesses, some get done but most judges are reluctant to do them. Most lawyers are reluctant to do them,” he said. “The whole system is judging credibility,” which he said is “based on being in person.
“Without having a trial date it’s been much harder to resolve cases,” he continued. “That’s really affecting our caseloads.”
When jury trials do resume, Rubin worries about the diversity of juries.
“Are we going to lose large number of, say, minority jurors?” he asked. “They may not be available. … What type or juries are we going to have?”
Trials are supposed to be heard by “a jury of peers,” Rubin noted. “That’s a real concern.”
Northampton attorney David Hoose has been president of the Hampden County Lawyers for Justice, a group of more than 100 private attorneys that take court-appointed cases, for more than a decade. Hoose, likewise, said he is concerned about what will happen when trials resume.
“I have no idea how they are going to try to prioritize them. But it’s very clear to me that the prosecuting attorneys, they are going to have to do something to get rid of some of these cases. Or this system is just going to come to a grinding halt,” he said. “The handful of cases that really do deserve very close attention, because the defendant is seriously dangerous, they aren’t going to get the attention they need because we spent too much time dealing with these cases that are going nowhere — that’s my take on it.”
When trials resume, “You’ve got people that have been sitting in jail for a year waiting for trial,” he added. “Certainly, if they are my clients I’d say we want a trial today. How (the courts) are going to accommodate that is beyond me.
“In a nutshell, what I would say to you about the criminal justice system as a whole, meaning courts and jails, is everybody wants to give this impression that there’s nothing to see here, folks, just moving along. … In fact it’s a disaster.”
Greta Jochem can be reached at gjochem@gazettenet.com.