Dear Council and Chief Justice,

As California’s association of criminal defense lawyers CACJ, its members, and their clients are stakeholders in the design and implementation of emergency rules to protect public safety and save lives during the COVID-19 pandemic. We are actively and directly involved in both criminal and juvenile delinquency proceedings. 

Our previous correspondence has emphasized the critical need to reduce inmate populations in California’s jails and prisons to save lives. The March 20 recommendations from the Chief Justice to reduce the bail schedule for non-violent offenses was a step which raised our hopes for improved policies. But those recommendations have had little impact as individual counties struggle with access to accurate epidemiological information and varied local conditions. Although there have been relatively minor reductions in jail population, this has not been enough to significantly improve the risk to inmates, corrections employees, and the public.

CACJ is therefore very pleased with proposed Emergency Rules 4 & 5 submitted to the Judicial Council for consideration on April 6. We believe a statewide bail schedule is an appropriate tool to address the life-or-death conditions for pre-trial detainees in our jails. If populations are dramatically reduced it will also decrease the risk to jail staff and those remaining in custody. 

There are significant collateral benefits of reducing inmate population as well. A defendant in custody should normally assert the right to a speedy preliminary hearing and trial. This is more true today since timely hearings could lead to early release from the dangerous custodial setting. After these defendants are

released they are in a position to waive time to relieve a great deal of the pressure for preliminary hearings, motions, and trials while the courts are in emergency mode.

For these reasons CACJ endorses the adoption of Emergency Rules 4 and 5, with the following comments and recommendations:

1. The statewide bail schedule is a critical first step in improving public safety. The April 10 deadline for implementation is an important factor in achieving a better outcome. There must be oversight of the counties to encourage full, timely, compliance;

1. The broad application to both misdemeanor and felony charges is critical to achieving the best outcome in reduced infections and deaths. But some of the exemptions will result in needless incarceration of individuals who pose no significant risk to cause harm. For example, first time violations of Vehicle Code §§23152 and 23153 with lower levels of intoxication, and violations of Penal Code §§ 69 and 166(c)(1) with no injury or minor injury. Local courts should be encouraged to reduce bail for these charges and other less serious examples of the exempt offenses;   

1. The Rule does not address the bail setting for enhancements, such as a serious felony prior or gang involvement. Without guidance from the council we assume local courts will take the most restrictive view and impose high bail from the county schedule in cases that would otherwise fall under the state Rule;

1. For those held in custody pending arraignment or setting bail, Courts should prioritize the first hearing, where release may be ordered. Although the statutory time has been extended, public health concerns demand speedy determination whether a person can be released pending further proceedings;

1. Expanding the ability of counsel to appear for the defendant by Emergency Rule 5 in felony cases with an oral representation of consent is a practical and efficient way to reduce exposure for courts, staff, and counsel;

1. We continue to have concerns about the use of technology to conduct evidentiary hearings. We believe it is critical that Rule 5 requires consent of the accused for any remote/technological alternative. It is also critical that the communication between attorney and client during remote hearings is explicitly privileged under Evidence Code §952, as the potential for overhearing or intercepting a communication and using it against the accused is significant.

Emergency Rule 7 provides important guidance to local courts on the delinquency proceedings which must go forward during the crisis. CACJ is concerned that the broad authorization of remote/technological hearings does not require the consent of the minor or counsel for the minor. This defect is mitigated, to some degree, by the provision making an objection to remote proceedings grounds for a continuance of the hearing. But we believe there are cases which should be heard timely, and cannot give full effect to the minor’s rights if done remotely. There should be a consent requirement, as in Rule 5. 

Thank you for the opportunity to comment on these proposed emergency rules on behalf of CACJ and our 1,100 attorney members. We hope that adoption on April 6 will lead to significant reductions in jail population in the next week. Even at this point in the pandemic curve the changes will reduce infections, hospitalizations, and death. 

Sincerely,

Steve Munkelt

Steve Munkelt, Executive Director

California Attorneys for Criminal Justice

There is much cause for concern in Governor Newsom’s Executive Order N-38-20 on Friday 3/27 and the adoption of temporary policies by the judicial council on Saturday, 3/28. In brief, the Governor removed barriers /ceded power to the Judicial Council to direct the activities of the courts throughout the state, and the Council adopted rules extending some statutory and constitutional deadlines, and encouraging the use of technology to avoid situations where visitors, staff, judges, defendants and/or attorneys may not be able to maintain “social distance” while handling court business.

Rest assured that your leadership (and CPDA under President Oscar Bobrow) submitted comments to the judicial council Friday night opposing many of the proposed measures and laying out recommendations that would preserve constitutional rights of inmates to timely appearances. [CACJ letterhere] Nevertheless, in a well-orchestrated meeting on Saturday afternoon, the Chief Justice got a unanimous vote of the council to adopt the recommendations as presented. (The meeting itself was well-orchestrated. The conference-call technology was a total failure and took over 30 minutes to correct.)

So is this a good thing? A bad thing? Or is the sky falling?

I urge everyone to stay calm, and stay focused on handling each of the barriers thrown up to reason and justice where they adversely effect a client. After all, that is what we do. We have a large institution with many actors with discretionary powers and a serious health crisis moving among us. Over the last three weeks we have seen some courts making terrible decisions (“the courts are closed” “the jury trial will continue”) and refusing to follow intelligent guidance from the Chief Justice on March 20, including advice to set the bail schedule for many crimes to $0 so jail populations can be significantly reduced.

Well, the C.J. and council are now in a position to tell them all what to do, rather than merely recommend. So courts will be open, and critical matters regarding custody, and timely hearings and trials will have consistent treatment statewide. Hopefully there will be a spreading movement toward releasing far more pre-trial inmates without bail, or with bail they can afford.

The Governor’s order [found here] has five parts:

1. Any limitation on the subject matter which the Chairperson of the Judicial Council can address in an emergency order or statewide rule under Government Code §68115 is suspended;

2. Removing any restrictions on the rulemaking authority of the Council or the Chairperson for emergency statewide or local rules or orders extends the authority for rulemaking to the maximum under Cal. Caonst. Art. VI sec. 6;

3. Any emergency rules or orders in conflict with a statute automatically suspend that portion of the statute for the duration of the emergency;

4. CCP §§ 2025.310 and 1010.6 are suspended to allow deposition by telephone and electronic service;

5. All existing rules remain in effect except as adopted by the Council or Chair.

The Council adopted verbatim the recommendations under “A” and “B” in the Report to the Judicial Council for the meeting March 28. [found here] Part “C” was to ask the Governor for an order, which he had already done, so this was not considered. The adopted policies are:

And

In follow-up questions the Chief Justice indicated that the extended times for arraignment and prelim should only be utilized as required. So delays will be subject to attack if they exceeded the statutory time, were objected to, and there were not sufficient facts to justify delay beyond the normal time¹. For example, if a video arraignment is available within 48 hours that should be utilized, rather than invoking the expanded time in order to arrange for safe transport and appearance.

info@cacj.org As you face new policies and action in your local courts please keep us updated at by sending news articles, email describing a problem, or pleadings you have filed for relief on bail or other issues. We will keep this resource page updated with links to any material that may be useful to you.

Stephen Munkelt

3/29

Late Friday Chief Justice Cantil-Sakauye sent an advisory letter to all presiding judges and court executive officers strongly encouraging them to take further steps to mitigate the risks of the coronavirus. [link to full text here] Her suggestions for criminal matters closely track the positions advocated by CACJ’s President Eric Schweitzer in his letter to the C.J. on March 13. A summary of her recommendations:

1. Lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses.

2. Consider a defendant's existing health conditions, and conditions existing at the anticipated place of confinement, in setting conditions of custody for adult or juvenile defendants.

3. Identify detainees with less than 60 days in custody to permit early release, with or without supervision or community-based treatment.

4. Determine the nature of supervision violations that will warrant detention in county jail, or "flash incarceration," to drastically reduce or eliminate its use during the current health crisis.

5. Prioritize arraignments and preliminary hearings for in-custody defendants, and the issuance of restraining orders.

6. Prioritize juvenile dependency detention hearings to ensure they are held within the time required by state and federal law.

7. Allow liberal use of telephone or video appearance by counsel and defendant for routine or non-critical criminal matters.

This is ammunition all of us can use to push our local courts to adopt these measures, and to move aggressively to reduce inmate populations during the pandemic. Start Monday morning doing everything you can to bring your in-custody client’s situation to the attention of the court. Since appearances are limited look to your court’s emergency orders for the best method to raise the issue. My Nevada County court is accepting e-filing of motions, so one avenue here would be a motion for immediate bail reduction/OR release efiled on behalf of each client with electronic service on the DA.

This is a new environment and all of us need to know the best way to protect our client’s rights and health. If you try something that works, send a report and a copy of any pleadings to info@cacj.org. If you try something that doesn’t work, send us a report at info@cacj.org

Stephen Munkelt

3/23

 Her order includes the following directives:

• All jury trials are suspended and continued for 60 days. Courts may conduct a trial at an earlier date upon finding of good cause shown or through use of remote technology when appropriate.
  

• Time periods to begin criminal and civil trials is extended for 60 days, though courts may conduct trials earlier upon finding of good cause or through remote technology when appropriate.
   
• Superior courts are authorized to adopt any proposed rules or rule amendment that is intended to address the impact of the COVID-19 pandemic to take effect immediately, without advance circulation for 45 days of public comment. A court adopting any such rule change must immediately distribute the new or amended rule, and no litigant’s substantive rights shall be prejudiced for failing to comply with the requirements of a new or amended rule until at least 20 days after the rule change has been distributed.
   

See the full order on 3/23/20 here .

To: Presiding Judges and Court Executive Officers of the California Courts

Dear Judicial Branch Colleagues:

I write to share information on actions we are taking at the state level regarding the current crisis in our California court system resulting from COVID-19, and to provide guidance on ways that might mitigate some of the health risks to judicial officers, court staff, and court users. 

Governor Newsom’s order last night for all Californians to shelter in place reflects the unprecedented challenge we face with the COVID-19 virus, both as Californians and as judicial officers and court administrators. We sought and received clarification from the Governor’s office that the Governor’s order is not meant to close our courts. The courts are—and continue to be—considered as an essential service. I recognize, however, that this new adjustment to health guidelines and direction likely may require further temporary adjustment or suspension of certain court operations, keeping in mind, as we all are, that we are balancing constitutional rights of due process with the safety and health of all court users and employees.

We are working at both the state and local levels to identify more options to provide relief. Aiding in these efforts are the perspectives and input from the TCPJAC and CEAC chairs and vice chairs who are dealing with local emergencies while making time to focus on the welfare of our larger judicial branch family.

In addition, we are in daily, close contact with the Governor’s office, executive branch departments, and legislative leadership to make them aware of the impact on courts as well as to see where immediate and longer-term assistance may be needed to respond to a crisis of this magnitude. 

I am deeply concerned about the disruption and hardships caused by the COVID-19 crisis and I have applied and will continue to apply all the constitutional and statutory powers of my office to minimize these unprecedented problems.

I, like many of you, am being contacted by justice system partners and advocates seeking immediate and direct action to address the particular needs of their constituencies. In responding to these requests, we have made clear what the limits of authority are for the Chief Justice and the Judicial Council, as well as the role of independent trial courts to manage their operations, while stressing our shared commitment to be responsive within the framework of respective constitutional and statutory responsibilities.

The relief I am authorized to grant with an emergency order is limited to the items enumerated in Government Code section 68115. In California, unlike other states, each of the 58 superior courts retains local authority to establish and maintain its own court operations. This decentralized nature of judicial authority is a statutory structure that reflects the diversity of each county.   

In an effort to alleviate some of the immediate problems faced by the trial courts, I have authorized court holidays and extensions of time for court procedures in response to requests submitted by the presiding judges in many superior courts, with the understanding that the immense diversity of our state may require variations on what is considered an essential or priority service in a particular court or community. 

I will continue to grant emergency order requests while balancing fairness and access to justice. As of writing, 63 emergency orders have been processed with several more pending. In light of the continuing emergency posed by the COVID-19 pandemic, I am prepared to approve requests for further extensions as warranted, consistent with my authority under Government Code section 68115(b). 

In addition to the steps you have taken under the orders you have been granted, I strongly encourage to you consider the following suggestions to mitigate the effect of reduced staffing and court closures and to protect the health of judges, court staff, and court users. 

These actions can be taken immediately to protect constitutional and due process rights of court users. They will require close collaboration with your local justice system partners. 

Criminal Procedures

1. Revise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses – for all misdemeanors except for those listed in Penal Code section 1270.1 and for lower-level felonies. This will result in fewer individuals in county jails thus alleviating some of the pressures for arraignments within 48 hours and preliminary hearings within 10 days. 

2. In setting an adult or juvenile defendant’s conditions of custody, including the length, eligibility for alternative sentencing, and surrender date, the court should consider defendant’s existing health conditions, and any conditions existing at defendant’s anticipated place of confinement that could affect the defendant’s health, the health of other detainees, or the health of personnel staffing the anticipated place of confinement.

3. With the assistance of justice partners, identify those persons currently in county jail or juvenile hall custody who have less than 60 days remaining on their jail sentence for the purpose of modifying their sentences to permit early release of such persons with or without supervision or to community-based organizations for treatment.

4. With the assistance of justice partners, calendar hearings for youth returning to court supervision from Department of Juvenile Justice following parole consideration for a Welf. & Inst. Code, §1766 hearing.

5. With the assistance of justice partners, determine the nature of supervision violations that will warrant “flash incarceration,” for the purpose of drastically reducing or eliminating the use of such an intermediate sanction during the current health crisis.

6. Prioritize arraignments and preliminary hearings for in-custody defendants, and the issuance of restraining orders.

7. Prioritize juvenile dependency detention hearings to ensure they are held within the time required by state and federal law. 

8. For routine or non-critical criminal matters, allow liberal use of telephonic or video appearance by counsel and the defendant, and appearance by counsel by use of waivers authorized by Penal Code, § 977.  Written waivers without being obtained in open court have been approved if the waiver is in substantial compliance with language specified in section 977, subdivision (b)(1).  ( People v. Edwards  (1991) 54 Cal.3d 787, 811;  People v. Robertson  (1989) 48 Cal.3d 18, 62.)

Civil Procedures

1. Suspend all civil trials, hearings, and proceedings for at least 60 days, with the exception of time-sensitive matters, such as restraining orders and urgent dependency, probate, and family matters.  Consider whether an emergency order may be needed to address cases reaching 5-year deadlines under Code of Civil Procedure section 583.310. 

2. When possible, provide that any urgent matters may be done telephonically, under the general policy encouraging use of telephonic appearances in Code of Civil Procedure section 367.5(a) and California Rule of Court, rule 3.670.

The Judicial Council’s entire management team and staff are focused on supporting you, your judicial officers, and court employees. They are moving as quickly as possible to address questions, share information, provide resources, and maintain open lines of communication to facilitate our branch’s response. 

I am immensely grateful to you and your dedicated employees for your tireless efforts to navigate this storm as you are also trying to help and protect your own families through this challenging time for us all.

Tani G. Cantil-Sakauye
Chief Justice of California

Criminal defense attorneys are passionate about people, justice and the law. We work hard and think harder to provide the zealous representation our clients deserve /and require. We are generous with our time and our work. Civil firms may copyright their briefs to protect financial value, but we share our best work with colleagues through list serves and brief banks. We are frequently the lone, and lonely, voice for liberty, justice, and a humane world.

During this time of rapid and extraordinary change CACJ is your organization and your resource. We have a COVID-19 Resource Center on the website at https://cacj.org/page/COVID-19 proctored by past-president Jacqueline Goodman. Go there to see sample motions to release pre-trial detainees who can’t make bail, the latest available information on court policies county-by-county, articles on the importance of reducing inmate populations to prevent widespread fatalities, and other material that may be useful for you in navigating the uncharted waters ahead.

We want each of you to visit and use the resources we have today, and tell everyone about our public COVID page. But we also want you members to BE a resource. If you receive official information about a court policy for the pandemic, if you draft a motion to O.R. clients, if you write a memo on double jeopardy implications of a mistrial due to virus policies, please share it so all can benefit from your work. Forward any materials by email to info@cacj.org and we will keep adding to the resources on the COVID pandemic. 

We also encourage you to visit and contribute to the brief bank. Members can go from the home page to the Resources tab and Brief Bank. There are topics to choose from, and a search from anywhere in the bank will be a global search across all topics. Today you will see that we are in the early stages of building content for the Bank. Take some of the time you are saving by not sitting around a courtroom and add some of your work to the Bank for the CACJ community. Click on any topic and just above the first post you will see the “Add a new post” link. This is a blog-post system so choose a title, attach a file(s) and give a description of the material to be posted in the comment box. Click Submit and you are done. Items added in the COVID-19 topic will also be shared on the public COVID-19 page.

Thank you all for your efforts on behalf of life, liberty and justice. Working together we can make this better than it would be without us.

Stephen Munkelt

3/19

California Chief Justice Tani G. Cantil-Sakauye on Monday issued guidance to California trial courts seeking emergency orders to adjust or suspend court operations in the wake of the COVID-19 pandemic.

Current California law circumscribes the authority of the Chief Justice during emergencies. Presiding judges of county superior courts may petition the Chief Justice—as chair of the Judicial Council—for an emergency order to support their local needs.

The law allows local courts to request a number of relief measures, including declaring holidays to recalculate filing deadlines, extending temporary restraining orders, holding sessions elsewhere in the county, extending the time for a criminal trial to be held, and others. (Note: All emergency orders signed by the Chief Justice related to COVID-19 can be found here).

The Chief Justice’s guidance serves as a blueprint for requests that would be presumptively approved. Requests beyond those listed in the advisory will also be expedited, she wrote.

“California’s judicial branch is facing an unprecedented challenge with the COVID-19 virus,” Cantil-Sakauye wrote. “I recognize that this situation may require the temporary adjustment or suspension of court operations and procedures. I stand prepared to prioritize all such requests that may be submitted in the days ahead.”

Read more here. 

COVID-19 is inflicting irreparable harm upon the fair administration of justice in our state. It is more than a week since the Governor declared a state of emergency, yet the Chief Justice has not taken the steps to authorize a state-wide response. (See Gov’t Code §68115.) Absent Orders from the Chief Justice, courthouses are being closed and the right to timely processes delayed county by county on an ad hoc basis. Pre-trial defendants are being forced not only to endure prolonged and meaningless incarceration, but also to suffer in the worst imaginable environments with medical indifference to humane treatment a virtual certainty. In this milieu, entrusting the safety and welfare of ourselves and our clients to the tender mercies of jail administrators is unwise and irresponsible. We must act.

We criminal defense attorneys have a mission-critical duty. Now, and with singular purpose it is we who must demand an end to judicial wavering on what is to be done. To spur intelligent action from the judiciary we demand release of nearly all pre-trial detainees, citations rather than arrest in all eligible cases, and clear standards for managing jury trials and general criminal cases during the pandemic.

In any battle, timing is key. It is our prerogative, and our solemn duty now to spur decision makers into action without regard for worn out canards that blame the accused for their condition. This is our duty. Our destiny. We must carry it out now with vigor. Failure is not an option.

As President of California Attorneys for Criminal Justice, and in the absence of any clear and decisive state policy regarding court closures and criminal cases during this pandemic, I ask you each to advance these demands in every courtroom:

1.      Release all pre-trial detainees not facing serious or violent felony charges. The dangers posed by keeping people in custody go up greatly in cases of a pandemic.  Very few if any misdemeanor defendants should be kept in custody. Courts should be more willing to release defendants. The dangers affect broad categories of people, including both defendants and jail staff.

2.     Encourage courts to continue cases with out of custody defendants  for six months.

Lengthen the minimum time to hold a trial for in custody defendant from 30 days to 60 days for misdemeanors and from 60 to 120 days for felonies.  Lengthen the time to hold a trial for out of custody felony defendants to 180 days. 

3.     Permit out of custody defendants and attorneys to appear by telephone or by other electronic means.

4.    Permit courts to allow felony defendants to appear 977 with an order signed by the judge permitting the defendant to do so or an email from the Judge's clerk or the judge.  No written document signed by the defendant would be necessary; the defendant would not have to appear in court prior to the 977 motion being granted. 

5.     Insist that all jails and prisons have ready access to testing.

Resistance to these demands is inevitable.  Please remember that in pursuit of the fair administration of justice, you are not alone.  Already, criminal defense offices and organizations across the land, including CACJ, are standing with you. Be stalwart. Be forceful. Be as one. 

MARCH 14, 2020

ERIC H. SCHWEITZER

PRESIDENT, CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE