WFHB Bloomington Community Radio
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This interview was lightly edited for brevity and clarity.
Aaron Comforty: Indiana’s Supreme Court ordered the suspension of in-person jury trials last week, due to the high rates of Covid-19 in the state. To talk with us about the impacts of the order, we’ve invited Kyle Dugger on the program. He’s a Deputy Public Defender for the Monroe County Public Defender’s Office. The views he expresses are his own, and do not reflect the views of the Public Defender’s Office. Kyle, thanks for joining us on WFHB Local News.
Kyle Dugger: Hey, thanks for having me on, Aaron. I appreciate it.
A: So, who is this suspension impacting right now?
K: The suspension is impacting everybody. No matter where you are in the justice system, I think that this would probably have an effect on you. It affects things in our office. But I think the effect right now is on everybody.
A: What about people who are awaiting trial? I mean, these jury trials aren’t taking place at the moment.
K: Yeah, that’s right. It is a fairly unprecedented thing. It would be a really bad time to be a person charged with a crime who is not guilty right now. In that situation, unless you can afford bail–have the money to bail out and secure your release pretrial, or unless you can convince a judge to let you out on your own recognizance without having to pay money, then you would be incarcerated pending the resolution of your case. So if you’re taking that case to trial, we have no idea when that resolution will be.
A: One in five prisoners in the U.S. has had Covid-19, according to a recent study done by the Associated Press and The Marshall Project. As more people are arrested and incarcerated now, and jury trials are on hold, is this suspension order, in effect, subjecting people awaiting trial in jail or prison to a higher risk of exposure to Covid-19?
K: Yeah, of course it is. I don’t think it’s reasonably disputed that jails and prisons can be super-spreader places. They aren’t able to maintain social distancing. When we saw mask mandates, like Governor Holcomb’s state-wide mask mandate, or the one here in Monroe County and Bloomington, inmates, or people who are incarcerated, were specifically exempted from the mandates. Masks aren’t provided to them. Jails and prisons are often not able to accommodate social distancing recommendations because of overcrowding. About an hour away, in Terre Haute, Vigo County Jail had, unfortunately, an inmate pass away–collapse in their cell, and then die later at the hospital. They were positive for Covid-19. In the testing that was mandated and that ensued afterwards, I think there were one-hundred inmates that were positive in the Vigo County jail. There are reports that there is Covid in our jail, in the Monroe County Jail, although I’ve not seen any official release on it or any kind of statement from the Sheriff of Monroe County. I don’t even know if anyone in the jail is being tested. There are people on the outside who have family and loved-ones on the inside who say that they’re not able to social distance, that they’re not being given sanitary conditions. That’s the dark alternative side of this. We have people who are charged with crimes, and who are put, against their will, into this place that restricts their freedom and that is incredibly dangerous. The flip side of that, is that, procedurally, they have no mechanism by which to seek their constitutional protection of a trial. They don’t have the opportunity to have the state prove their guilt. Without that, you’re really languishing. It’s a horrible situation.
A: Courts here in Monroe County and across the State are using video conferencing software, like Zoom, to hold official court proceedings. Is there no way to conduct a jury trial held by video conference?
K: You know, it’s interesting. That’s been bandied about a little bit. There are certain hearings that are taking place now. In particular, the things that are probably the most closely akin to a jury trial might be like when we have civil trials or if the State tries to terminate someone’s parental rights. We’re doing a lot of hearings in those cases via Zoom, but I’m not aware of anyone who’s personally done a fact finding via Zoom, which would be the equivalent of a trial. I understand that courts are stuck in a difficult place, in the sense that, for a felony jury trial you need twelve jurors, two alternates, a defendant, probably a defense attorney or two, probably a prosecutor or two, a judge, a court reporter–you’re very quickly getting close to that twenty-five person limit. I think right now Monroe County is limited to not having gatherings of more than twenty-five people. You’re going to be close to the limit. Also, I don’t know if a lot of attorneys would agree to conduct a criminal jury trial over Zoom. The reasons for that being that there’s a lot of things that take place in a courtroom, I think, that are difficult to achieve over Zoom. In my opinion, I don’t know if the answer is necessarily that we switch to doing jury trials over Zoom. Other counties have talked about using a convention center or a larger space so that people can social distance more appropriately. There was a criminal jury trial here in Monroe County in October or November. It was not one of my trials, but from the people I talked to, it seemed to go off really well. They achieved it just by dividing up the jury panel–they would put a certain number of people in a room. So just kind of trying to put the social distancing in practice is probably a clearer solution than trying to move to doing jury trials electronically.
A: Other States have done similar orders and the Federal District Court for the region has suspended jury trials as well. They did that a month ago. Clearly there is concern about holding jury trials on Zoom, but after the Courts are able to resume jury trials, they are going to be potentially facing a backlog. What are some of the considerations in terms of scheduling and timing?
K: Oh, it’s going to be a nightmare. I mean, it’s going to be awful. Part of the problem is that there is already a backlog. The system is already slow. I have cases that are on the docket that were already old, before the suspension of jury trials. I assume different courts will do different things. They’ll try to prioritize people in custody first as opposed to people who are at least able to exercise pretrial freedom and are not sitting in a jail waiting for their day in court. For a justice system that is already overburdened, not closing anything for nine months–the backlog is going to be severe. When we talk about your jury trial rights, we’re talking about three different things. We’re talking about the U.S. Constitution, and the Sixth Amendment which gives you the right to a trial and a right to a speedy trial in all cases where you are charged with a crime. And then we also have a State constitutional right. It kind of mirrors the federal constitutional right to a trial and a speedy trial. And then we have Indiana Criminal Rule Four. It’s supposed to be a mechanism that actually gives us a firm position on what actually is a speedy trial. That is what’s suspended right now. So people still maintain the right to a right to a jury trial. Now the problem is, what I think a lot of people don’t know, and what they wouldn’t like, is that what counts as a speedy trial under the Indiana Constitution and the Federal Constitution, is probably not what most people would think of as a speedy trial. So Indiana Criminal Rule Four says that for a speedy trial, the State has to try you within seventy days, or else they lose the case–they can’t bring it anymore. Another subsection of that rule says that if you’re charged with a crime, the State has to bring you to trial within one year of charging you, or else the State loses it. So that’s a really powerful tool for me, as a defense attorney. Indiana Criminal Rule Four is great. The State charges someone with a crime and they’re in jail on some terrible case, they can ask for a speedy trial, and you know that, no matter what, two-and-a-half months of your life in jail is a horrible loss, but it’s a lot less terrible than being in jail for a year. In legal time, in geologic time, that is what they’re considering ‘not that long.’ But, I think that for the average person–Aaron, if you were arrested and were charged with a crime, and I went and met with you in jail and you said, “I did not do this. I would like my trial.” And I said, “That’s fine. January 2022, I’ll get you there.” You would probably say, “That is unacceptable to me.” That is going to be the reality for some people, I think.
A: Right. Well I will do my best to not make that situation, where you have to come into the jail and tell me that–I’ll do my best to not make that happen. But, Kyle Dugger, thanks so much for coming on the Local News.
K: Yeah, thanks. Thanks for having me.
