A Utah attorney reports his client is denied both trial by jury AND bail.


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Is Indefinite Detention of U.S. Citizens in the United States Here?

Dear John,

The bulk of FIJA's work in the last few months since courts have shut down nationwide in response to the COVID-19 pandemic has been deep research on what this means for our right to trial by jury.

To put it bluntly, the situation is pretty desperate right now.

Here's the conundrum:

On one hand, people accused of crimes have a right to a fair trial by a jury of their peers and to face their accusers.

Right now, many people are, or perceive themselves to be, at risk of serious illness or death from interacting in public. Others have already suffered substantial economic harm from business shutdowns. 

These people may understandably have a difficult time focusing their attention on a trial and taking the necessary time to deliberate and deliver a just verdict when they are worrying about their lives or livelihoods. But if those people are simply excused from jury duty—particularly if those people are disproportionately from certain social demographics, such as older adults—then juries will not be drawn from a pool that represents a fair cross-section of society.

Where jury trials are coming back online, we are seeing courts experimenting with a number of practices that bring into question whether the defendant is getting a fair trial. These include masks that obscure jurors' and/or witnesses' faces, social distancing that may make it difficult for jurors to observe important nonverbal communication, use of Zoom or other videoconferencing to conduct proceedings—yes, even parts of or entire trials by jury—and more.

Some defendants and their attorneys are rightfully concerned that if they are pushed into trial at this time under these circumstances, they will not get a fair trial by jury.

On the other hand, accused people also have a right to a speedy trial.

The seed that grew into our jury system traces back eight centuries to the Magna Carta—an agreement which King John was forced into by armies poised for war over, among others, the issue of due process. The founders of the United States, similarly concerned about abuses like indefinite detention, fought a revolution in no small part to preserve the rights to due process before detention and to a speedy and public trial by an impartial jury.

Understandably, some people who are accused but have not been tried for or convicted of crimes are eager to return to their lives both physically and psychologically as soon as possible. They wish to be released from pretrial incarceration and have their day in court, complete with a jury of their peers.

There is no easy, one-size-fits-all answer that is fair to all of them.

But I do know this:

THE ANSWER IS NOT
AND MUST NOT BE ALLOWED TO BE
INDEFINITE DETENTION.

I do not say that merely for shock value. I say it because this weekend, for the first time, I felt that is the only way to describe a case I have come across in Utah. Here's the news article detailing the situation:

Suspension of Jury Trials, Hearings Brings Rights into Question ([link removed])

The case takes place in Utah where the chief judge of the Utah Supreme Court has issued an administrative order indefinitely suspending trials by jury as well as in-person hearings.

Defense attorney Wayne Caldwell reports that not only is his client being denied both trial by jury and in-person hearings, but he is ALSO being refused release on bail as well. Moreover, they are even reportedly being told that there will be no trial until next year at least. 

Trial by jury canceled indefinitely. No bail. How is this NOT indefinite detention?

Courts in many states are postponing trials by jury indefinitely. I have so far seen rumblings from a few that there will be no criminal trials by jury until 2021. But this is the FIRST report I have seen of someone who will not get a trial this year ALSO being denied bail.

What do you know about trials by jury in your area? Are they taking place? What measures are being put in place to modify the process going forward? If they are not taking place, what is happening to those who are accused? These would be some great questions to call up your local courthouses and ask.

Let me know what you find out—especially anything that sounds like it is further eroding out right to trial by jury. Even changes that are currently being billed as "temporary" are important. When it comes to government, "temporary" has a history of becoming "permanent".

For Liberty, Justice, and Peace in Our Lifetimes,

Kirsten C. Tynan
Fully Informed Jury Association

P.S. Out of respect for the uncertainty and financial difficulty introduced into everyone's year by the COVID-19 pandemic, I held off doing our first fundraiser of the year as long as possible—nearly 7 months. But it can wait no longer. 

Your support is CRITICAL to keep FIJA going. FIJA doesn't have a trust fund. We don't take any government funds (that's right—no CARES Act bailout for us!). We rely ENTIRELY ON YOUR VOLUNTARY CONTRIBUTIONS. Please click below to make your donation. THANK YOU!!!!

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P.O. Box 5570 | Helena, MT 59858 US

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