Criminal Lawyers Scramble To Deal With New Challenges Amid Coronavirus

By Matthew Krumholtz

Annual Review of New Criminal Justice Legislation

The coronavirus crisis is rapidly upending the practice of criminal law, as attorneys face new limits on private communication with clients.

“There are clients who truly have anxiety over the fact that they cannot meet with their lawyer,” said Sherry Levin Wallach, the deputy executive director of the Westchester County Legal Aid Society. “From a representation standpoint, you can’t shut down. In our business, criminal justice, you can’t just say, ‘Sorry, we’re closing Legal Aid.’”

Amid court closures and the indefinite postponement of nonessential court functions, many lawyers find themselves having to navigate new forms of advocacy for their clients –– preventing health risks on top of protecting legal rights.

“I had a Manhattan judge who wanted to detain a client, but I convinced him to let the client self-surrender,” said Isabelle Kirshner of Clayman & Rosenberg in NYC. “It’s dangerous for those entering the jails and for inmates already incarcerated. It’s a human petri dish inside the jails.”

On Sunday, David Perez, a New York City Department of Correction investigator, became the first city employee to die from the coronavirus. An employee at Sing Sing Correctional Facility in Ossining tested positive for the virus on Tuesday.

“What are you going to do if an inmate gets sick?” asks César de Castro, whose firm is located in New York City. “You’re going to put them in isolation, which is a punitive measure?”

Even while criminal defense lawyers focus on the implications of coronavirus for incarcerated clients, they are confronting their own risks. After coming into contact with another lawyer at Westchester County Courthouse who tested positive, Richard Ferrante, a lawyer based in White Plains, voluntarily self-quarantined for the recommended period of 14 days from exposure.

Although he is out of quarantine and asymptomatic, Ferrante remains vigilant of the evolving implications for his clients.

“Public health has to be the number one priority,” said Ferrante. “But the people in jail are the biggest concern, because of the liberties at stake.”

Balancing public health and individual rights presents novel challenges for lawyers in what is quickly becoming an indefinite state of emergency. Lawyers with clients awaiting trial in criminal cases are grappling with curtailed options for communicating. The New York State Unified Court System announced on Monday that defendants awaiting trial will either have their cases adjourned or conducted remotely through video conferencing.

“Video conferencing is not ideal,” said Wallach. “Currently as it exists, any video conferencing done with our clients is ‘on the blocks,’ meaning that for them it’s not private. Without that privacy, very little can get accomplished –– you can’t even do a full initial interview of an individual.”

Wallach noted New York’s new bail law as a silver lining. In New York State, the new bail reform law took effect on Jan. 1, eliminating pretrial detention and cash bail for most misdemeanors and nonviolent felonies –– an estimated 90 percent of arrests.

Wallach called the new bail law “a blessing to the system as many more people can and are being given appearance tickets, which reduces the need for off-hour arraignments and fewer people being held in custody.”

People who have been charged with felonies and are out on bail are adjourned until further notice, wrote Chief Administrative Judge Lawrence Marks.

De Castro, whose practice focuses on federal criminal defense, noted the different circumstances for federal cases. “Right now, I think detention is the huge issue. Because unlike New York City with bail reform and a lot of the jails being empty, we’re the opposite. Anybody who gets indicted on a narcotics conspiracy or anything related to a firearm, there’s a presumption of detention.”

Governor Cuomo made clear on Wednesday that he expects the number of coronavirus cases to peak around May 1.

“For me the question is: At what point do we say that this is really a violation of due process?” said Wallach. “You are dealing with people’s rights.”

Court closures are not unprecedented in New York. On the day of the Sept. 11 terror attacks, the courts closed statewide. State officials sought to reopen the courts as swiftly as possible to ensure their unimpeded operations in the face of terrorism, and all state courts resumed business by Sept. 17.

In 2012, state courts in Manhattan were closed for the week following Hurricane Sandy.

Coronavirus, by contrast, continues to spread nationally and around the world, with many health officials concerned about the lag-time between transmission and testing.

“The most surreal moment I’ve experienced is 9/11, seeing the smoke from the towers,” Ferrante said. “But you knew there was an end in sight. If you had said a week ago that we’d be in this position, I would have said it won’t go that far.”

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