In normal times, frenetic energy crackles through Philadelphia’s highest-volume courtrooms, where many of the 20,000 or so cases processed each year get done in a rapid-fire flurry of plea deals, violation hearings, and trials.
Now, four months into a pandemic-induced shutdown, the courthouse at 13th and Filbert Streets sits quiet and closed to the public. But that frantic pace persists, albeit via videoconference. Plea agreements are entered, bail motions are heard, and status hearings are held to determine what can be done with a given case.
Often, the answer is nothing.
While other courthouses around the region have reopened for many types of proceedings, and some New Jersey courts are planning to resume jury trials, defense lawyers and prosecutors say Philadelphia’s criminal court is struggling to restart operations at any significant scale. Until last week, it had not resumed preliminary hearings — at which prosecutors must show evidence the defendant committed a crime — let alone trials. And lawyers worry that returning to the courthouse puts them at risk.
Thousands of cases are in limbo as a result, and the right to a speedy trial has been suspended indefinitely. So far this year, Philadelphia has resolved half as many cases as it had by this time in 2019. About three-quarters of that work was completed in the months before courtrooms closed.
Philadelphia’s chief defender, Keir Bradford-Grey, said the threat to due process is so significant her office may start filing habeas corpus petitions demanding people be released from prison.
“One of the things I’m concerned about is cases are going to be delayed so far that people are going to start pleading out just to get out,” she said. “We can’t take advantage of people’s situations. If there is a plea for release then it should not be in exchange for your rights.”
In May, Philadelphia’s judicial leadership announced plans to resume preliminary hearings within weeks, but that didn’t happen until last week. And stakeholders are still debating how hearings or trials could be conducted in a manner that is both safe and constitutional. The district attorney and chief defender said conversations are ongoing.
A court spokesperson did not respond to an inquiry. Common Pleas Court President Judge Idee Fox, criminal division Supervising Judge Leon Tucker, and Municipal Court President Judge Patrick Dugan did not respond to requests for comment.
Under Pennsylvania rules, preliminary hearings must take place within 21 days after bail is set or within 14 days if the defendant is jailed. There are already more than 7,700 preliminary hearings docketed for the rest of the year, according to an Inquirer analysis, many of them set for four, five, or six months after arrest. About 1,400 people are in jail on cases for which they have not yet had a preliminary hearing, and those hearings are, on average, set for 137 days after arrest.
A review of preliminary hearings scheduled for July 23 showed that about one in five were dismissed, withdrawn, or resulted in a low-level plea. The rest were rescheduled for August or September. On average, defendants will wait 142 days just for a preliminary hearing — unless it is postponed yet again.
On July 6, the system resumed transporting prisoners to the courthouse — but only 24 a day, and only when all parties agree a case is ripe for resolution. But as cases pile up, some judges are making their own rules with the hybrid online and in-person hearings — or even, in the case of one judge, a full, in-person bench trial.
For people already on probation, whose arrest triggered a warrant to detain, the delays can mean months in jail without ever learning the evidence against them.
That’s what happened to Kadeem West, 21, who was on probation for receiving stolen property when he was arrested on April 3 for allegedly possessing an illegal gun.
His lawyer, Amato Sanita, asked Judge Robert Coleman to release West. He argued that, at the preliminary hearing, evidence will show the gun belonged to someone else. Sanita also said West had grown up after his youthful stumbles, and was now being taken away from his family and job without ever hearing the evidence against him. “He was selected as a trash collector with the city working over 40 hours a week,” Sanita told Coleman. “He has a 2-year-old child he had full custody of.”
Coleman denied the request. “I understand both arguments, but my city is turning into the Wild West,” he said. West’s preliminary hearing is scheduled for Sept. 14, more than five months after his arrest.
Philadelphia District Attorney Larry Krasner said his office is anxious to move cases forward.
“Justice deferred is not actually justice denied,” he said. “But there is a real possibility that there will be justice denied, and there will be justice deferred, as a result of what happens.”
He acknowledged that technology has been a barrier. Even scheduling a date to enter a plea by video from prison can take three or four weeks, because the entire prison system has only four video links.
Bradford-Grey said her office is trying to get creative. “Maybe we do the hearings at the prison,” she said. “Maybe the lawyer sits with the client at the prison to make sure they have access to us.” But open questions include how to protect witnesses testifying over video, and how to ensure they are not coached, intimidated, or otherwise compromised. Her office is considering assigning a staffer to monitor police witnesses during hearings.
Meanwhile, delays are mounting. The average case resolved in June took 212 days from start to finish — the slowest pace in five years, according to data published by the District Attorney’s Office.
And already, defense lawyers say they’re forced to choose between inadequately serving their clients and entering facilities they feel are unsafe.
All-staff emails circulating within the Defender Association this month warned colleagues against visiting the prison due to a “lack of safety procedures,” inadequate cleaning, and inconsistent use of face masks by prison staff. “You may want to reconsider visiting until conditions improve,” one lawyer wrote. Other lawyers expressed the same concerns about the courthouse.
In Zoom hearings, one judge was seen announcing frequent “mask breaks” between cases to remove his mask without leaving the courtroom, where staff, deputy sheriffs, and lawyers were present. Another let his mask hang below his chin while speaking. After someone tested positive for the coronavirus in a basement courtroom, staff there were told to return to work rather than quarantine, two people familiar with the situation said.
A reopening safety plan drafted in June by an infection-prevention consultant, a copy of which was obtained by The Inquirer, recommended numerous fixes, including ventilation, cleaning, removal of filthy upholstered surfaces, and education of staff. It observed in “some areas [less than] 50% compliance, including leadership” with mask-wearing.
Lawyers who refuse to visit the prisons have complained of challenges getting on secure phone or video lines with clients in jail. “I stared at a me-only Zoom twice yesterday and couldn’t get anyone on the phone,” one wrote on a public Facebook group in July, airing a typical complaint. Video conference slots, restricted to late afternoons, evenings, and weekends, fill up quickly, leaving lawyers waiting a week or two just to meet with their clients.
Bradford-Grey said she had been negotiating to improve access to clients, and had made headway. “Obviously there is not enough time for us to be able to access the number of people we need to see,” she said, since private lawyers share the same access portals. “We both need to share that time. We need more technological advances with our prisons.”
The Administrative Office of Pennsylvania Courts in June issued guidance on how jury trials might be conducted, mentioning options including jury selection by videoconference or building clear plastic booths for jurors to sit in. A sample summons reminds jurors that “sacrifice” will be required to achieve justice during a pandemic and that jurors must appear unless ill or high-risk.
But as of now, even lawyers struggle to access court hearings at times, scrambling to swap courtroom Zoom links with one another or to file them away for future court dates.
As they wait, many embroiled in the system feel stuck, and desperate for clarity, said Malik Neal of the Philadelphia Bail Fund, which has bailed out more than 250 people during the pandemic.
“We’ve just been swamped with calls from people we bailed out wanting to know if they need to show up for court, if they’ll be arrested if they don’t show up,” he said. “It’s just been mass confusion.”
Staff writer Chris A. Williams contributed to this article.