By Eric Christofferson, John Hillebrecht and Paul Lewis
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Law360 (December 1, 2020, 5:21 PM EST) —
The U.S. Constitution guarantees the criminally accused certain fundamental rights — such as the right to confront witnesses, a speedy trial, a public trial, a representative jury venire and counsel.
But while the wheels of justice infamously turn slowly in the best of times, the pandemic kicked a whole bunch of sand into the gears of courtrooms across the country. Bound to protect the safety of litigants, employees and the public, many courts have been forced to adapt to the new normal, which has entailed suspending or altering an array of otherwise standard processes and procedures.
Criminal trials, for instance, present a Gordian knot of substantive, procedural and logistical challenges, such that pulling on one thread may reveal a host of interlocking problems for the courts and the parties — including those of constitutional dimensions. As safety-related accommodations collide with the practical mechanics that ensure constitutional rights, courts and parties are being forced to choose from among imperfect alternatives.
Over the course of two installments, this article surveys some of the key constitutional issues and how some courts are handling them during this new normal, beginning with the right to counsel and an impartial jury venire. The second of this two-part article will examine how courts are considering defendants’ rights to confrontation and a speedy trial.
Right to Counsel
The ancillary effects of the COVID-19 pandemic are also bound to clash with the Sixth Amendment right to counsel in several ways, including meaningful access by detained defendants to counsel and attendance of vulnerable counsel at trial.
Detention and Access to Counsel
As a general matter, a detention facility violates a defendant’s Sixth Amendment right to counsel if it “unreasonabl[y] interfere[s] with the accused person’s ability to consult counsel.” It should therefore come as no surprise that a number of defendants have already argued, in support of their requests for release, that their detention facilities’ COVID-19-related lockdowns unfairly infringe upon their Sixth Amendment right to counsel.
However, the U.S. Supreme Court cautioned in its 1983 opinion in Morris v. Slappy that “[n]ot every restriction on counsel’s time or opportunity to investigate or to consult with [their] client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel,” thereby affording courts substantial discretion to reject such arguments.
To date, most of the courts to evaluate these claims, including the U.S. Court of Appeals for the Sixth Circuit, the U.S. District Court for the Eastern District of Pennsylvania, and the U.S. District Court for the Southern District of New York, have endorsed the proposition that limited contact with counsel due to COVID-19 concerns is not sufficient to violate the right to counsel, particularly where there are still opportunities for significant trial preparation. A defendant’s attorney’s personal choice to refrain from visits in light of COVID-19 may also weigh against such claims by their clients.
Moreover, the Sixth Circuit observed in U.S. v. Penaloza that “[g]iven the nationwide mandate to remain quarantined at home, were Defendant to be released, there would still be obstacles preventing Defendant and his counsel from meeting face-to-face to review documents.” Some courts, including the U.S. District Court for the Northern District of Texas and the U.S. District Court for the District of Maryland, have gone so far as to state that it is fundamentally inappropriate to consider such arguments.
On the other hand, a minority of courts, including the Southern District of New York, have cited such a Sixth Amendment violation as at least part of the justification for defendants’ pretrial releases. A defendant’s ability to identify a specific difficulty in assisting with preparation for trial — that cannot sufficiently be cured by remote visits with counsel — has helped convince some courts. Of course, some defendants’ COVID-19-related release requests have been granted independent of any finding that the pandemic has impacted their Sixth Amendment right to counsel.
Counsel’s Attendance at Trial
In yet another pandemic wrinkle, courts have been forced to consider what happens when an attorney is uncomfortable appearing at their client’s in-person trial because the attorney may be particularly vulnerable.
Prior to the pandemic, courts had often applied an interest-of-justice exception to the speedy trial rule for the purpose of ensuring continuity of counsel for both parties. Therefore, in the event that an attorney for the defendant, or even the government for that matter, is particularly vulnerable to COVID‑19, any delay resulting from the necessary accommodations is very unlikely to be deemed a violation of a defendant’s Sixth Amendment right to a speedy trial.
Aided by stipulation of the parties, at least one federal trial court, the U.S. District Court for the Eastern District of California in U.S. v. Singh, has already so held.
On the other hand, however, at least one court — the Southern District of New York in U.S. v. Donziger — has recently refused to grant a defendant’s motion to continue where some of a defendant’s “attorneys … might not be able to attend trial in-person for health or other reasons.”
And, where attorneys have threatened to withdraw or recuse themselves due to concerns about their health during this pandemic, the U.S. District Court for the District of Arizona in Gallegos v. Shinn publicly warned those attorneys that they could then “be in violation of their professional and ethical duties, with the gravest consequences for themselves.”
Courts obviously face difficult challenges in managing their dockets, but some of the choices defendants and their counsel are being forced to make are unpredecented.
Right to a Jury That Represents a Cross-Section of the Community
An equally important constitutional question is likely to be presented by the inevitable exclusion of jurors who are unable to participate in trials in the COVID-19 era — either due to a lack of access to sufficient technology in the event that the trial is virtual, or due to an increased medical risk in the event of an in-person trial.
Although the Sixth Amendment right to an impartial jury affords defendants the right to a jury drawn from a “fair cross section of the community,” as defined by the 1975 Supreme Court opinion in Taylor v. Louisiana, it does not necessarily follow that the selected jurors must constitute an accurate representation of the community.
And as a general matter, “courts have tended to allow a fair degree of leeway in designating jurors so long as the state or community does not actively prevent people from serving or actively discriminate, and so long as the system is reasonably open to all,” according to the U.S. Court of Appeals for the First Circuit’s 1985 opinion in Barber v. Ponte.
To succeed in challenging a conviction on this basis, a defendant must demonstrate that (1) “a ‘distinctive’ group in the community” (2) is underrepresented in venires from which juries are selected, and (3) “that this underrepresentation results from systematic exclusion of the group in the jury-selection process,” according to the Supreme Court’s 1979 opinion in Duren v. Missouri.
To date, distinctive groups have typically been defined along ethnic, racial or gendered lines. And, where arguments have been made that a specified age bracket might constitute a distinctive group for this purpose, those arguments have nearly always been rejected.
Accordingly, where an excluded group is not a protected class and is even more ambiguously defined — such as a faction of individuals who consider in-person service to be too risky due to COVID-19 — it is unlikely that any court would find the de facto exclusion of that population to be unconstitutional.
On the other hand, the anticipation of a possible pandemic-related impact on petit juries has already been employed as a partial justification for a moratorium on jury trials within several federal jurisdictions. Additionally, several federal courts have actually granted defendants’ motions for limited discovery as to the demographic information about grand jurors — in anticipation of a potential challenge by the defense regarding insufficient community representation within the indicting body.
Notably, however, these courts have signaled that such a challenge would only seriously be considered if premised upon evidence establishing a disproportionate COVID-19 impact on minority groups. It is therefore likely that, if such a COVID-19-based challenge were ever to succeed, it would likely need to be premised upon a lack of sufficient representation by a group that has already been deemed distinctive under Duren v. Missouri.
In the second installment of this two-part article, we will examine defendants’ rights to confrontation and a speedy trial in the context of the pandemic.
Eric Christofferson and John Hillebrecht are partners, and Paul Lewis is an associate, at DLA Piper.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Benjamin v. Fraser , 264 F.3d 175, 185 (2d Cir. 2001).
 Morris v. Slappy , 461 U.S. 1, 11 (1983)
 See United States v. Foster , No. 20-5548, 2020 U.S. App. LEXIS 22724, at *8 (6th Cir. July 20, 2020); see, e.g., United States v. Dawara , No. 19-414-1, 2020 U.S. Dist. LEXIS 83126, at *21-23 (E.D. Pa. May 12, 2020); United States v. Rico , No. (S1) 18 Cr. 661 (PGG), 2020 U.S. Dist. LEXIS 70536, at *15 (S.D.N.Y. Apr. 21, 2020).
 See, e.g., United States v. Mugaddim , No. TDC-19-380, 2020 U.S. Dist. LEXIS 62704, at *10 (D. Md. Apr. 9, 2020) (“Defendant’s counsel ‘has chosen to suspend visits to protect the health and safety of her and her clients’ due to a quarantine required by her own physician.” (emphasis in original)).
 United States v. Penaloza , No. TDC-19-238, 2020 U.S. Dist. LEXIS 96630, at *17-18 (D. Md. June 2, 2020).
 See, e.g., United States v. Parrish , No. 3:19-cr-160-L (02), 2020 U.S. Dist. LEXIS 90783, at *25 (N.D. Tex. May 20, 2020); United States v. Robinson , No. 20-cr-00008-GLR-1, 2020 WL 1820089, at *6 (D. Md. Apr. 11, 2020).
 See, e.g., United States v. Perez , No. 19-Cr. 297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (granting release pursuant to 18 U.S.C. § 3142(i) in light of COVID-19 and defendant’s health conditions); United States v. Stephens , 447 F. Supp.3d 63, 67 (S.D.N.Y. 2020) (same).
 See, e.g., United States v. Holloway , Nos. 19 Cr. 897 (ALC), 20 Cr. 126 (LTS), 2020 U.S. Dist. LEXIS 105534, at *17 (S.D.N.Y. June 12, 2020) (“Perhaps of greater concern is the fact that Mr. Holloway has suffered a complete inability to review a copy of the discovery that has been produced.”).
 See, e.g., United States v. Harris , No. 19-356, 2020 U.S. Dist. LEXIS 55339, 2020 WL 1482342, at *1 (D.D.C. Mar. 26, 2020); United States v. Martin , No. DKC 04-0235-5, 2020 U.S. Dist. LEXIS 110220, at *6 (D. Md. June 24, 2020).
 See, e.g., United States v. Richardson , 421 F.3d 17, 29 (1st Cir. 2005) (“The government’s need for continuity of counsel is a valid statutory ground for granting a continuance in the interest of justice.”).
 See, e.g., United States v. Singh , No. 2:17-CR-00210 TLN, 2020 U.S. Dist. LEXIS 74761, at *6-7 (E.D. Cal. Apr. 28, 2020).
 See, e.g., United States v. Donziger , Nos. 19-CR-561 (LAP), 11-CV-691 (LAK), 2020 U.S. Dist. LEXIS 148029, at *7 (S.D.N.Y. Aug. 17, 2020) (“The Court is sympathetic to the burdens that a September trial date imposes on defense counsel . . . but, unfortunate as they are, those burdens do not warrant a continuance.”).
 Gallegos v. Shinn , No. CV-01-01909-PHX-NVW, 2020 U.S. Dist. LEXIS 161866, at *11-12 (D. Ariz. Sep. 4, 2020).
 Taylor v. Louisiana , 419 U.S. 522, 529–531 (1975).
 See Holland v. Ill., 493 U.S. 474, 480–481 (1990).
 See Barber v. Ponte , 772 F.2d 982, 1000 (1st Cir. 1985) (citing cases).
 See, e.g., United States v. Nunez , No. CR20-0097-JCC, 2020 U.S. Dist. LEXIS 172105, at *2 (W.D. Wash. Sep. 18, 2020) (expressing concerns about an inability to facilitate a jury that “represent[s] a fair cross section of the community”); In re Court Operations Under the Exigent Circumstances Created by the Covid-19 Coronavirus & Related Pandemic Precautions, Nos. GENERAL ORDER 2020-2, 2:20-mc-00080-JDL, 2020 U.S. Dist. LEXIS 158949, at *2 (D. Me. Mar. 18, 2020) (same).
 See, e.g., United States v. Williams , No. 20-55, 2020 U.S. Dist. LEXIS 142030, at *22-24 (E.D. La. Aug. 10, 2020); United States v. Holmes , No. 18-cr-00258-EJD-1, 2020 U.S. Dist. LEXIS 164683, at *13-14 (N.D. Cal. Sep. 9, 2020); United States v. Shader , No. 20-cr-202, 2020 U.S. Dist. LEXIS 131802, at *7 (E.D.N.Y. July 17, 2020).
 See, e.g., United States v. Williams, No. 20-55, 2020 U.S. Dist. LEXIS 142030, at *22 (E.D. La. Aug. 10, 2020) (noting defendants’ concern about the “disproportionate impact ofCOVID-19 upon African Americans”).
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