‘Petri Dish’ Courts Struggle With Virus, 10-Minute Trials

(Bloomberg) --

Empty courtrooms, suspended trials, requests to free prisoners -- the judicial systems in the U.S. and Europe are grinding to a halt in some areas while racing to wrap up cases in others as the pandemic wreaks havoc.

In just the past few days, the U.S. Supreme Court made the rare decision to delay oral arguments, a German court sped up its verdict in one of the biggest financial probes of the year, and the high-profile murder trial of Robert Durst was halted.

The moves encapsulate how court officials -- typically bound by protocols and procedure but dependent on human interaction -- are being forced to rethink how they can still allow defendants to have their day before a judge. With disruptions expected to last weeks, if not longer, those struggles are playing out from Berlin to San Francisco.

“This is unique -- it is something that I don’t think the legal system has ever dealt with,” said David Boies, one of America’s most famous litigators and managing partner of Boies Schiller Flexner LLP. “You can’t have effective economic activity without having a functional judicial system.”

Boies said it is “critical” to develop a strategy to keep public courts functioning if the pandemic lingers. “We need to start working on that solution now,” he said.

‘No Known End’

To some, the impact is worse than the 2001 terrorist attacks.

“In that situation, the courts were up and running fairly quickly,” said Sharon McCarthy, a former Manhattan federal prosecutor now in private practice. “Here, there is no known end date for the extraordinary measures that have to be taken to protect the health of our judges, court personnel, attorneys and marshals.”

It’s going to be especially difficult for citizens involved in criminal and family-law cases seeking quick justice, said Leo Strine, former chief justice of the Delaware Supreme Court.

“When you put cases on hold, you create or deepen backlogs and there’s a negative spill-over effect for the justice system,” Strine said.

Here are some of the disruptions attributed to the virus:

U.S. Federal Courts

• Many of the major federal courts from Los Angeles to New York have suspended civil and criminal trials, delayed the start of new ones, restricted public access and allowed judges to conduct hearings and conferences by phone.
• In the Southern District of New York, where new trials have been halted until at least April 27, all non-essential employees were placed on administrative leave. The Manhattan-based court frequently hears high-profile legal fights on Wall Street.
• The San Francisco-based Ninth Circuit Court of Appeals, which hears appeals from trial courts in nine western states, gave its three-judge panels discretion to decide cases without oral arguments, to postpone hearings or to conduct them by phone.
• U.S. bankruptcy courts this week also imposed restrictions on public access and began phone-only hearings, including in the District of Delaware, where many of the biggest insolvent companies seek court protection.
• Immigration courts run by the Department of Justice temporarily canceled all non-custody hearings up through April 10, and 11 of 69 court locations were closed, including in Los Angeles and Houston.

U.S. State Courts

• 42 states and the District of Columbia have ordered restrictions or suspension of jury trials at the state or local level, according to the National Center for State Courts. Many trial and hearing postponements are for 30 days, while some state appellate courts are halting arguments until May.
• Chancery Court in Delaware -- the premier U.S. venue for resolving business disputes -- is postponing trials for what may be months.
• Hearings and conferences are being conducted only by phone or video in Alaska, Delaware, Kentucky, South Carolina, Connecticut, Florida and Ohio. Virginia and Maryland are closed, operating state courts only for emergency matters.

European Courts

In Europe, where the outbreak is more advanced, courts have been moving quickly to get ahead of the virus.

A German tribunal is trying to wrap up the Cum-Ex tax-dodge trial, one of the biggest financial probes of the year. And a court in Hamburg even organized a 10-minute hearing of a former Nazi concentration camp guard over fears he might contract the coronavirus if the session were any longer.

The U.K. reversed its plans to carry on as normal, after the top judge said courts won’t start new trials that are scheduled to last longer than three days. Trials currently under way will generally proceed in the hope that they can be completed, Lord Chief Justice Ian Burnett said.

“Walking into a court building feels like entering a Petri dish,” said Camini Kumar, a British family lawyer, who anticipates U.K. courts shutting. “Court users are being forced to put themselves and others at risk.”

©2020 Bloomberg L.P.