For the past 14 months, Loudoun residents have wrestled with the insolvencies of closed offices and schools and restrictions on public gatherings. But for those charged with criminal offenses, some of whom remain in jail, the pandemic has largely put their lives on hold.
Virginia Supreme Court Chief Justice Donald W. Lemons on March 16, 2020 declared a judicial emergency requiring all civil, traffic and criminal matters, including jury trials, to be delayed in an effort to keep as many people out of courthouses as possible. Lemons extended that order for a 21st time on May 3, keeping those restrictions in effect through at least the end of the month.
As part of that action, hundreds of cases in Loudoun’s court system, which already faced backlogs before the pandemic, were put on hold, leading in some instances to increased caseloads, added legal preparations, and, for defendants sitting in jail awaiting their day in court, the question of whether they would receive their required speedy trial. In October, the Virginia Supreme Court authorized the Loudoun County Circuit Court to resume jury trials, and the first jury trial since the onset of the pandemic was held in January.
No Speedy Trials Amid COVID
Laurel Brigade Law Group attorney Dan Travostino, who has been practicing law for 46 years, said he recently represented a client who sat in jail for a year before trial—seven months longer than permitted under Virginia law.
Virginia’s Speedy Trial Act establishes that courts have five months from the date of finding probable cause that a defendant has committed a felony to commence a trial if the defendant is being held in custody. The act establishes that if the defendant is not being held in jail, the court has nine months to commence a trial.
But under a May 1 clarification of the Speedy Trial Act, Lemons noted that those deadlines may be suspended because Virginia law establishes that the declaration of a judicial emergency—declared when a disaster “substantially endangers or impedes the operation of a court”—can toll deadlines imposed by otherwise applicable statutes.
Lemons also wrote in an April 22 order extending the judicial emergency that “… statutes of limitation and case related deadlines are tolled during the Period of Judicial Emergency” pursuant to state law.
While Lemons has declared that a defendant’s right to a speedy trial isn’t being infringed upon, some attorneys question whether the judicial branch should be allowed to—or legally can—take that action.
“We’re talking about suspending a law [and not a rule],” said Westlake Legal Group Founder Tom Plofchan. “This is an issue of separation of powers.”
Plofchan pointed out that Gov. Ralph Northam hasn’t called the General Assembly to convene to clarify the speedy trial statute even though he has had “no problem calling for special sessions on other issues.”
Plofchan said there has been no opportunity for anyone to judicially challenge the chief justice’s order because jury trials only recently started back up. And Leesburg-based attorney Alex Levay said it’s “almost impossible” to try to appeal Lemons’ opinion on the Speedy Trial Act.
“I think we need to be serious if we’re going to uphold the Constitution. Even if a person is out on bond, there’s still a tremendous pressure on them,” Plofchan said, noting that one of his clients facing a reckless driving charge won’t get a trial until spring 2022, three years after being charged.
Some defendants continue to await their days in court behind bars. Still, Sheriff’s Office Public Information Office Kraig Troxell said the Loudoun County Adult Detention Center is not overcrowded, primarily because many inmates have been released on bond or personal recognizance.
Whitbeck Bennett Associate Attorney Sydny Bryan, who served as a prosecutor with the Loudoun Commonwealth’s Attorney’s Office from September 2019 to April 2021, said the pandemic led defense attorneys to push even harder for their clients’ releases from jail, arguing that, with the presumption that they are innocent until proven guilty, they should not be sitting in jail longer than the law allows.
“There was pressure to let people out on bond who otherwise would not have been let out on bond,” Bryan said.
And as part of an even broader movement of criminal justice reform, when Commonwealth’s Attorney Buta Biberaj took office in January 2020, her team began requesting judges not require bail for defendants charged with lesser, nonviolent offenses. Instead, Biberaj and her team of prosecutors have been requesting judges allow those people out on personal recognizance, or a promise to return to court for their next hearing.
Neither Biberaj nor the Loudoun Office of the Public Defender have responded to calls or emails to comment on the backlog of cases in the court system.
Delayed Cases: More Prep Work, Higher Bills, More Deals
While many people charged with crimes use public defenders in court, many others hire private defense attorneys. And for some, their attorney fees could be adding up.
That’s because most cases have been, and still are, continued months down the road, meaning defense attorneys need extra time to prepare—or to simply brush up on—their cases. More time means more money.
Levay said he has had more clients approach him recently with concerns about their ability to pay for his counsel, especially those engaged in civil litigation, since the court is giving precedence to criminal cases amid the backlog. Levay said he’s working with his clients in that regard.
To offset any unnecessary increases in client bills, Plofchan said it’s crucial to not overprepare for cases. But, he clarified, an increase to a client’s bill likely doesn’t necessarily come down to an issue of ethics.
Instead, Plofchan suggested some attorneys—or at least the ones who have seen their caseloads decrease amid the pandemic and judicial emergency—might not realize that they’re overpreparing for individual cases.
“You have to be very cautious,” Plofchan said.
Travostino said that while there are some cases in which attorneys have to prepare twice, such as when a case gets pushed back a few months, he does his best to make bills fair for his clients.
“I’m not going to overcharge somebody,” he said.
Bryan said that aside from the money issue, some people involved in civil litigation—especially civil litigation that has been ongoing for longer than what it would have in the pre-pandemic world—have agreed to deals just to end the case and get back to their lives.
“Sometimes parties will come to a resolution just to end this,” she said. “People just want closure. Most people don’t want to be in and out of the courthouse longer than what has to be.”
Travostino said he represented a client last year who was prepared for a June 2020 civil trial, but quickly settled the case after realizing the uncertainty of the court’s timeline given the pandemic and judicial emergency.
“We probably took less [of a settlement] than we would have,” Travostino said.
He is still handling three civil cases awaiting jury trial that normally would have been tried by now but won’t get there until spring 2022.
Attorneys Report Mixed Caseloads
With cases being continued months into the future and new cases piling on top, some attorneys are experiencing higher caseloads than ever before.
Whitbeck Bennett Managing PartnerJohn Whitbeck said his firm has experienced a “substantial increase” in the volume of civil and criminal cases amid the pandemic, which is why the firm has upped its hiring level and tripled in size since 2020.
Whitbeck said his team has had to hire at a “substantially higher rate” than in pre-pandemic times. He noted that his firm, which specializes infamily law, has hired two former prosecutors from the Loudoun County Commonwealth’s Attorney’s Office and a defense attorney from the Loudoun Office of the Public Defender to expand the firm’s ability to take on more criminal cases.
Plofchan, on the other hand, said his caseload remains the same as it was before the pandemic. But he also said he has observed that the court’s trial docket appears to have not returned to pre-pandemic levels. He attributed that to a significant drop in criminal charges being filed amid the height of the pandemic last year, when most people weren’t out and about.
Addressing the Backlog Post Pandemic
As society inches closer to the end of the pandemic, and the end of the judicial emergency, Loudoun’s defense attorneys have different views on how the courts can efficiently work through the backlog of cases.
Bryan said the Circuit Court’s approved plan to return to jury trials needs some work, noting it limits the court to hold one jury trial at a time and requires three separate courtrooms to be used: one for the jury trials to be conducted, one acting as the recess/deliberation room, and a third with closed-circuit television set up for members of the general public and media to watch.
“They need to condense that,” Bryan said.
Travostino said the Loudoun court system should concentrate more on mediation efforts by trying to help parties settle before trial, which would help to pare down the list of pending trials. Travostino said the court used to focus more on that a few years ago.
“Now it seems like you’re on your own when you try to [settle before trial],” he said, adding that virtual hearings, already being used for civil motions in Loudoun, could help move things along.
Levay said more funding for the judicial system could help, citing a need for more resources in the Commonwealth’s Attorney’s Office and Office of the Public Defender.
But even with additional funding, the justice system can’t be rushed, Levay said. It has to be fair, which is why “it’s just going to take time.”