Last Thursday, Criminal Court Judge Scott Green presided by video hookup. Around 20 people were present in his Division III courtroom – a gaggle of defense lawyers, a couple of prosecutors, a bailiff and a court reporter – all bunched up in front of the camera. Most were masked; a few were not. Once it was done, nobody was happy. Many were worried.
“There were some hiccups,” said Public Defender Eric Lutton, who was present for the huddle.
Knox County’s General Sessions and Criminal Court judges, the attorneys who practice there and the officers assigned to keep order are caught between their duty to preserve the rule of law and the need to help “flatten the curve” of the COVID-19 pandemic.
In mid-March, the state supreme court suspended in-person court proceedings, with a list of exceptions, two of which were “Proceedings necessary to protect constitutional rights of criminal defendants, including bond-related matters and plea agreements for incarcerated individuals” and criminal and civil jury trials already in progress. On March 23, the court extended the order until April 30 and suspended garnishments and eviction proceedings for failure to pay rent until May 6.
Tennessee sheriffs were ordered to book and release suspects arrested on misdemeanor or non-violent felony charges (DUI and domestic assault suspects excepted), although prosecutors have the option to object to individual releases.
Lutton is worried about the rights of the accused.
“We’re not ready. We have a duty to our clients to represent them. We also have a duty to keep them safe – but I don’t know that we can be as effective via video as in person. An accused individual’s rights must be protected. Some judges want to hold contested hearings, but I just don’t see a way to effectively represent a client that way. You’ll potentially have witnesses testifying remotely, and we will have lost the ability to cross examine them. My position is that it’s not workable, but I guess we will see where this takes us.”
Attorney General Charme Allen is somewhat more optimistic than Lutton, but says administering justice during a pandemic has challenges:
“It’s new to all of us,” she said. “Sessions Courts are run one way, Criminal Courts are run a different way. The Sessions Courts started using video equipment first, by setting up a video feed to the detention facility for inmates pleading guilty, so they don’t have to be transported. It’s working well.”
Allen said that court proceedings for current inmates are the only exception to the ban on in-person hearings, and those are still a work in progress.
“We’re averaging one hearing per day and transport between five and 15 to Sessions Court. This means we’ve significantly lowered our numbers.”
Allen said there also has been a concerted effort to reduce the population of Knox County’s chronically overcrowded jails. As of Tuesday, there were about 1,000 inmates in the detention facility, the work release center and the downtown jail, with some 200 sentenced inmates waiting for the state to come get them. This is a dramatically lower number than before the plague struck.
While attorneys worry that the homeless population is unable or unwilling to practice the “social distancing” required to keep a lid on COVID-19 cases, Sheriff Tom Spangler says things are going well in his jurisdiction. Detention center employees are screened upon entering the buildings, and he’s finally been able to start testing sick inmates for the virus. All tests have come back negative.
This is somewhat reassuring, but doesn’t address the problem of asymptomatic carriers of the virus, who are contagious.
Spangler said his employees are working as hard as they can work.
“It’s probably safer in (jail) than it is out in the open,” he said. “Social distancing is in play and that place is being sprayed and disinfected every time somebody walks around. We are transporting just a few at a time; only those who are essential to the proceedings are inside the courtroom. We’ve been able to use in-court video, which has made a drastic improvement and several non-violent and not-that-serious defendants have been RORed (released on their own recognizance). Some will have to come back later for court appearance, and we’ll see how that works out.”
Lutton is skeptical, because only a small sample of Knox County inmates have been tested, due to the limited availability of test kits. He cites an Icelandic study that discovered half of tested inmates showed no symptoms, which means they would not have been detected here.
“There are carriers who may not be symptomatic and a population living in close proximity,” he said.
Soon after the Supreme Court order came down, veteran lawyer and commentator on the local justice scene, Doug Trant, posted a Facebook picture of the deserted second floor of the City County Building where the criminal courts are located.
“Coronavirus has done what those carrying knives, guns, brass knucks and bombs could not. Virtually emptied this judicial building which had remained full since 1979. 41 years,” he said.
Betty Bean is a veteran reporter for Knox and Sevier counties.