Public Defender asks Hennepin County chief judge to halt out-of-custody hearings until pandemic eases

Citing a surge in COVID-19 cases in Minnesota and across the country, Hennepin County's chief public defender has asked for a halt to court appearances for defendants who are not in jail until the number of infections subside.

Hennepin County Chief Public Defender Mary Moriarty made the request to Hennepin County Chief Judge Toddrick Barnette this week, noting that people entering the facilities in the state's largest court system were not being screened for COVID-19. She said it was endangering both those people and her staff.

"We did not make this proposal lightly. We always look at issues through a client-centered lens and delaying appearances may be a hardship for some clients," Moriarty wrote in an e-mail to her staff. " … We also understand that many of you are understandably angry, frustrated, and scared to be appearing right now with clients and family members who have not been screened, many of whom have exhibited COVID-19 symptoms during your interactions with them. I also know that a number of you have had to quarantine from the office, and your family, because of exposures to clients."

Barnette met Thursday with representatives of the Teamsters and AFSCME who represent defenders, assistant county attorneys and other staff about the situation. He said Friday that he is considering Moriarty's request.

"I will respond after carefully reviewing all the information provided and assessing the impact it will have on our justice partners, but most of all the impact it will have to the people we service and employ," he said in a statement.

The request is the latest proposed adjustment since the pandemic took hold in March. Minnesota Supreme Court Chief Justice Lorie Gildea implemented several changes that greatly limited in-person hearings and trials in state courts. Later those restrictions were dialed back.

In federal court, Minnesota's Chief U.S. District Judge John Tunheim said Friday that last week he suspended further federal trials until the end of the year and will then reassess whether trials can be resumed in January. Meanwhile, the state judicial council will meet Thursday to discuss whether to make changes in state court protocols "in light of the surge we are seeing in Minnesota," Jodi Boyne, director of public affairs for the state court system, said Friday.

Assistant Hennepin County Public Defender Darcy Sherman, who shared Moriarty's e-mail to court staff with the Star Tribune, said she supports the proposal.

Several public defenders have had to quarantine, she said, some "have been exposed and people are incredibly frustrated that we are expected to proceed as if it is business as usual."

Hennepin County public defenders have represented clients in 20,000 cases so far this year, the majority of them out-of-custody defendants.

A pair of nationally recognized experts reviewed some of Hennepin County's courtrooms for the Star Tribune through a virtual tour via Zoom, and examined seating arrangements, safety protocols and ventilation. They also spoke with county officials about their systems. On a scale of zero to 4, with zero being no risk and 4 being high risk, they said Hennepin County courts hovered between a 3 and a 4.

"The people working in the courtrooms — judges, staff, lawyers, public defenders — have a high risk of exposure and infection," said Lisa Brosseau, an industrial hygienist consultant with the Center for Infectious Disease Research and Policy at the University of Minnesota. "The juries are equally at risk."

Thomas Smith, president of 3Flow in North Carolina, which provides airflow management services to laboratories and other workplaces, said the Hennepin courts' ventilation systems were built for temperature control rather than removal of contaminants, and tend to mix the air, which promotes the spread of pathogens.

"Anyone who is going to be in these courtrooms for more than 15 minutes should be concerned," he said.

They said notices posted telling people who are ill not to enter courtrooms are insufficient, and that plexiglass and cloth face masks stop the transmission of droplets from coughing but not the transmission of small-particle pathogens.

Both said the courts should require screening, limit the time people are in the courtroom, limit entrance to people who are essential, and require everyone in the courtroom to wear N-95 filtering face-piece respirators, like those worn by health care workers. They said that since revamping the ventilation system is unrealistic, portable air purifiers should be placed in the courtrooms and tested for their effectiveness.

"At a time we've seen a higher COVID case rate than we have ever seen, with few open intensive care unit beds, this is not the time to be holding in-person hearings and jury trials," Brosseau said.

Responding to the increased COVID-19 infections in the Hennepin County jail, Barnette issued an order this week saying that whenever possible, in-custody detainees should not be brought from the jail to court, "except for trials and/or contested hearings" and should appear in court instead through the court's remote video system.

Out-of-custody defendants who are summoned to appear in court receive notices saying not to come to court if they have COVID-19 or are exhibiting symptoms. Those notices are now being translated into several languages.

"We want the buildings as safe for people as we can make it. When issues come our way we want to address every issue and concern," Barnette said.

But Moriarty says that some people don't read that material and are fearful that if they do not show up they will have a warrant issued for their arrest.

They don't get a public defender until they show up in court, so they have no lawyer to call to seek advice, she said.

Barnette said that he needed "to balance the rights of victims and defendants to have their cases resolved in a safe matter during the pandemic," noting that the courts have offered remote hearings and remote contacts to the Public Defender's Office since March.

Moriarty countered that many clients lack the ability or equipment to participate in remote hearings, although a few have, and it has been impossible to hold remote appearances for clients not yet represented by the Public Defenders' Office.

Barnette presides over a weekly hearing that determines which cases will go to trial. He has also moved the hearings to a larger courtroom with more corridor space.

He said he will reach out to Brosseau and Smith to discuss their recommendations and consider what else can be done.

"We don't want people getting sick in the courthouse," he said.

Staff writer Chao Xiong contributed to this report. Randy Furst • 612-673-4224 Twitter: @randyfurst