As trials resume, prosecutors and defense won’t rest, promise hard work

WILMINGTON — According to Delaware’s Chief Public Defender Brendan O’Neill, the state’s current backlog of jury trial cases will take months to resolve, if not more.

With trials scheduled to resume this month following a nearly seven-month hiatus due to the coronavirus, the challenge now is balancing the interests of justice for defendants and everyone’s safety in a courtroom, he said.

“(Our) attorneys and staff continue to work diligently, as they have throughout the pandemic, to zealously advocate for our clients,” said Mr. O’Neill, who oversees the Office of Defense Services.

“As we resume jury trials, it is important to remember that every single one of our clients is innocent until proven guilty and has the right to a fair, speedy and public trial by jury.

“The (ODS) will continue to protect our clients’ rights, while safeguarding the health and well-being of our clients, staff and attorneys as we navigate this new normal.”

The first trial calendars are scheduled for the week of Oct. 19 in Kent and New Castle counties and Nov. 9 in Sussex. Trials were halted March 16, when the judicial emergency was declared and courts were closed to the public.

Delaware Attorney General Kathy Jennings believes her department is up to the task of meeting the upcoming workload.

“Pound for pound, the prosecutors and support staff at the (Department of Justice) are Delaware’s best legal team,” she said.

“The pandemic has created new challenges for our office — as it has across our country — but we have been hard at work and are ready to resume jury trials.”

Since speedy-trial rights were suspended by the courts as the pandemic arrived in Delaware, Mr. O’Neill said, “ODS lawyers have worked with other stakeholders in the justice system to resolve cases when possible and when it is in our clients’ best interests.

“To date, ODS lawyers have engaged in good-faith efforts to honor our clients’ rights, while protecting the health of all the people in our court system. ODS lawyers will continue to do so. Having said that, we’re now approaching the point where we’ll be asserting our clients’ rights to speedy, public jury trials.”

According to the Delaware Department of Justice, the first trials scheduled will involve nonincarcerated, nonvictim matters, with most involving DUI and drug-possession cases.

“The courts are working to limit courtroom occupancy by focusing mostly on cases involving a low number of police witnesses and minimal, if any, civilian witnesses,” spokesman Mat Marshall said.

With most defendants not taking pleas until a trial date nears, many cases remain pending and will affect scheduling calendars, the DOJ said.

“This will result in an increased workload for (deputy attorneys general) and support staff like paralegals and social workers,” Mr. Marshall said. “Deputy attorneys general have to meet with witnesses, prepare and redact recorded statements, and finalize exhibits for presentation as part of trial prep.”

According to the DOJ, prosecutors handle anywhere from 200 to 250 cases annually, perhaps more, and that load will increase as trials have been delayed.

“Many DAGs already work nights and weekends when preparing for trial, and unfortunately, we fully expect that the pandemic backlog will make that practice even more common,” Mr. Marshall said.

“Support staff will also face a commensurate increase in stress as they help prepare for older trials, while simultaneously providing discovery in new cases.”

A 1968 U.S. DOJ study and subsequent commission recommended limiting court-appointed defense attorneys’ caseloads to 150 or fewer felony cases per year, Mr. Marshall said.

“Keep in mind that this was long before the advent (of) evidence like body-worn cameras, cellphone footage, advanced forensics, etc., increased the average working hours required for a criminal case,” he said.

Also, Mr. Marshall said, “Early in the pandemic, DAGs made progress resolving some cases, largely defendants with low-level offenses who were offered probationary pleas.

“DAGs who work in the Court of Common Pleas and Family Court have been able to continue processing cases, albeit not at the volume we’re accustomed to,” he added.

“Homicide, sexual assault and child abuse involving serious physical-injury investigations have continued.”

Regardless of the backlog and scheduling changes, “the DOJ is committed to seeking justice regardless of any backlog, and our charging/sentencing guidance to DAGs remains unchanged,” Mr. Marshall said.

“The unfortunate reality is that our DAGs are well-accustomed to excessive workloads. We advocate every year for more resources to assist them and our support staff, because their caseloads are consistently above and beyond what should be required of any criminal attorney — the tremendous work they do is in spite of that never-ending challenge.

“We’ll continue to advocate for the resources they and the people of this state deserve, especially as more law enforcement agencies adopt body-worn cameras statewide.”

The DOJ has emphasized diverting defendants to treatment programs when the opportunity presents itself, Mr. Marshall said, and low-level felony offenses may be reduced to misdemeanors when appropriate. The moves can allow prosecutors to spend more time on cases representing a danger to the community, he said.

“That remains our approach now, and we will continue to evaluate each case on the facts and the interest of justice for victims, the accused and the community,” he said.

Helpful Coronavirus links

Delaware Division of Health Coronavirus Page
CDC: About the Coronavirus Disease 2019
CDC: What to do if You Are Sick
Johns Hopkins Coronavirus Resource Center
AP News Coronavirus Coverage
Reopening Delaware: Resources for Businesses
Delaware Phase 2 guidance

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