The Arkansas Supreme Court said jury trials could resume at the beginning of May, meaning a stack of criminal cases finally have their chance to see resolution.
Jury trials in the state had been on hold since March 2020 because of safety concerns during the COVID-19 pandemic. With the courtrooms reopened, the question becomes how the justice system handles a significant backlog of cases.
“With the use of Zoom participation, we were pretty much able to keep current with all of our docket except jury trials,” said Benton County Circuit Judge John Scott. “We didn’t have jury trials for 14 months, so they are very much stacked up in the system. We have a lot of jury trials set last month when we could start back according to the Supreme Court per curiam order. For the next five to six months all of us who hear jury trials have many set.”
When Scott holds a jury trial in his courtroom, it won’t even be his courtroom. Scott’s courtroom is smaller than average, making it difficult to maintain social distancing requirements even as the pandemic is winding down.
Scott’s jury trials will be held in Circuit Judge Robin Green’s more spacious courtroom, where plexiglass shields are installed for added protection. The courtroom is going to see a lot of action.
“We set two jury trials a day for most of the summer,” Scott said.
Washington County Prosecuting Attorney Matt Durrett said his office just recently held its first in-court, in-person jury trial. Many more are being set, but navigating the backlog will require some patience as the caseload gets handled.
“It is kind of like you’re sitting at a red light behind an 18-wheeler and the light turns green,” Durrett said. “We’re that 18-wheeler. We’re trying to get everything going and we’re moving slow. Here pretty quickly, I think things are going to pick up.”
Kim Weber, a defense attorney with Matthews Campbell Rhoads McClure & Thompson in Rogers, is ready for her time in court to rev back up.
Weber is concerned about jurors in her criminal cases being required to wear masks. The state Supreme Court said courts should follow Centers for Disease Control and state Health Department guidelines but gave discretion to each individual judge. Benton County requires masks inside courtrooms.
“Any court that requires the jurors to wear masks, I will be filing a motion to either continue the trial or to require them to not wear masks,” Weber said. “As a defense attorney, I want to see the people’s faces. When I’m representing someone charged with a heinous crime, I want to see the disappointed looks on their faces, or I want to see if they are open to my defense. “That concerns me a little. I have to read my jurors.”
Durrett, the prosecutor, said he didn’t disagree with Weber’s point but added that he believed masks would be more detrimental during voir dire — jury selection — than during the trial because attorneys on both sides need to ascertain a juror’s potential feelings or prejudices about the defendant.
“When the case is proceeding the jury has been picked, and there’s not much you can do about it at that point,” Durrett said. “Being able to see facial expressions while the trial is going on is a virtual scoreboard in your head so you can figure out if you are winning or losing. You can’t tell everything by body language. It would be a lot better if they were spread apart and they weren’t wearing masks.”
Durrett’s bigger concern is that mask requirements may dampen jurors’ desire to serve. Wearing a mask during a 30-minute shopping trip is one thing; wearing it through an eight-hour trial is another.
“Not saying they are anti-mask, but most people want to be in a place during the workday where they can take their mask off and be comfortable,” Durrett said. “Regardless of how you feel about masks, whether you are pro-mask or anti-mask or neutral, they are not the most comfortable thing in the world.”
Judge Scott in Benton County believes it will take at least six months for the justice system to make a significant dent in the backlog of jury trials, which also include some civil suits.
When the pandemic first upended the courts in March 2020, there was a shaky transition period before all the sides figured out how to proceed through virtual hearings.
Many hearings, for such things as domestic violence or child endangerment issues, simply couldn’t be postponed because people’s safety was involved.
Some civil cases that involved a massive amount of paperwork were delayed because sharing troves of documents during a virtual hearing wasn’t feasible.
“After the initial shutdown, after March, April and May, it seemed like we had figured out how to keep things moving,” said Fayetteville attorney Kristin Pawlik, a partner with Miller Butler Schneider Pawlik & Rozzell. “We have limped along and done a pretty good job.”
Durrett said he expects to see a bunch of criminal cases resolved, either through trials or pleas.
He said the courts have a two-year backlog, considering old cases and the fact that crimes and civil torts were still happening during the pandemic.
“It’s going to be very difficult to socially distance and have a jury trial but, at some point, you have to get back to it,” Durrett said.
“It is going to be uncomfortable at the beginning, but I think the further we go along and the longer this goes on, then the less restrictive it is going to be,” he added.
Pawlik and Durrett said the backlog of cases varies from court to court depending on how each judge handled his or her docket during the pandemic. Both expect Zoom technology to be a permanent part of the justice process because it saves time, money and travel for non-trial proceedings.
“If you had a pretty big backlog, then it is just going to be worse now,” Durrett said.
“It is going to resolve things one way or another. It’s either going to trial or it’s going to plead.
“Before the pandemic it was 15 [case resolutions] a day; now you will need to resolve 25 on an average day. It is hard to tell at this point because we have only been up and running for a month or so. We have to figure out what is a realistic pace.”
COVID-19 put the brakes on some criminal cases and inspired others.
► Former state Sen. Gilbert Baker of Conway was indicted in January 2019 for conspiracy, bribery and wire fraud in a scheme to bribe former Faulkner County Judge Mike Maggio to reduce a verdict against a Greenbrier nursing home. Maggio pleaded guilty in 2015 and was sentenced to 10 years in federal prison despite energetic efforts to take back his plea.
Baker’s trial was delayed repeatedly, and jury selection is scheduled to start on July 23. U.S. District Judge D. Price Marshall Jr. rejected Baker’s motion for a bench trial — a trial by the judge without a jury — and the defense has asked for potential jurors to answer 76 questions “because of pretrial publicity and the complex issues in this case.” After a jury is seated, the trial is expected to take three weeks.
► Another former state senator, Jeremy Hutchinson of Little Rock, pleaded guilty in June and July 2019 to corruption charges brought by U.S. attorney’s offices in Little Rock, Fort Smith and Springfield, Missouri, but he still hasn’t been sentenced. No date has even been set. That’s because COVID has delayed the trials of co-conspirators in the cases in the Western District of Arkansas and the Western District of Missouri, and his participation in those prosecutions will have a bearing on his sentence.
► Dr. Ben Burris, an orthodontist formerly of Fayetteville, was indicted in August 2019 on charges of honest services fraud for paying bribes that Hutchinson pleaded guilty to receiving. His trial has been delayed a couple of times and is currently set to begin in Fayetteville on Oct. 4.
Two Arkansans have pleaded guilty and been sentenced for COVID-related crimes.
► Benjamin Hayford of Centerton (Benton County) pleaded guilty in August in federal court in Oklahoma to fraudulently seeking $8 million from the Paycheck Protection Program. Hayford, now 33, was sentenced to 24 months in federal prison, and he’s incarcerated at Leavenworth, Kansas, with an expected release date in October 2022.
► Ganell Tubbs of Little Rock pleaded guilty in December to bank fraud after fraudulently obtaining nearly $2 million in PPP loans. Tubbs was 41 as of March 12, when she was sentenced to 41 months in federal prison. She has been ordered to report to the federal Bureau of Prisons on June 28.
— Gwen Moritz