Until a long-awaited murder trial began last week, there had not been a jury trial in Marin County for six months.

On Thursday, March 12, 2020, an entire panel of jurors was dismissed and sent home after one potential juror revealed that her husband had been approved for a COVID-19 test. By Monday, March 16, Marin County Superior Court was closed to all but essential matters.1 A few of us, criminal defense attorneys and prosecutors, still shuffled into court for the next few weeks to deal with arraignments on new arrests and matters where the defendants were in custody. We continued everything. At the time, there was a sense that the state of emergency would last only a few weeks or months. We, meaning the criminal defense bar, were encouraged to accommodate the courts—and we were more than happy to do so. We made do with limited contact with our clients in jail. We advised our clients to waive time.

Time is one of the few things that the defense controls in a criminal case. Penal Code section 1382 sets strict limitations on the time within which a criminal defendant must be brought to trial: 30 days for most misdemeanors and 60 days for felonies. The remedy for a violation is dismissal. These specific time limits make California’s statutory speedy trial rights broader than the constitutional speedy trial provisions.2 The ability to demand a jury trial within a certain time period has a greater effect than just producing the trial itself; it helps to balance the negotiating power between the parties and brings them to the table in a way that only an impending trial can do. In a game of chicken, everyone thinks they can win when the other side is still a mile away. Only when we see the true form of the opposition come into focus do the consequences of impact stir us to change our position.

In the age of COVID-19 however, defendants’ rights to a speedy trial have had to give way to public safety. On March 23, Chief Justice Tani Cantil-Sakauye issued a statewide emergency order suspending all jury trials for 60 days and extending section 1382’s time limits by 60 days.3 On March 30, a second statewide emergency order authorized superior courts to extend deadlines for criminal arraignments, preliminary hearings and jury trials.4 Marin County’s April 1 administrative order 20-06 implemented the extensions.5 On April 29, the Chief Justice ordered that section 1382’s trial deadlines be extended again for a total extension of 90 days beyond the original statutory time limits.6

Our court has used this time to triage cases and tackle the daunting task of adapting our courtrooms and procedures to this strange new era. Nearly all court appearances are held virtually via Zoom now. The bench (and Judge Haakenson in particular) deserves high praise for helping all of us get used to virtual court appearances, even bringing back some of the casual banter I didn’t know how much I enjoyed until it was gone.

The courtroom in department F has been reconstructed to accommodate a physically distanced jury trial. The bars in front of the jury box and at counsel table have been replaced with four desks, each encased in a plexiglass shield. The audience section has been re-purposed as a jury box, with 14 seats marked six feet apart. The reconstruction of Department M is underway.

Despite the considerable effort, the reconfigured courtrooms will inevitably be far from ideal. The social distancing protocols that keep us safe from the virus are often at odds with the safeguards needed for a fair trial. Masks and distance will make it difficult if not impossible for jurors to properly observe the demeanor of witnesses. The jurors being seated in the audience also make it impossible for counsel to pay attention to a witness and the jurors at the same time.

Given the logistical challenges of jury selection and the recent spikes in COVID-19 cases, it was not surprising when the Marin County Superior Court issued a new administrative order on July 20, which, among other things, granted all of its judges the authority to extend section 1382 deadlines by another 30 days.7 On August 19, the Court issued another administrative order providing authority for yet another 30 days.8

Our court is not alone in seeking to extend these deadlines. Contra Costa and Sonoma Counties have both continued to extend section 1382’s deadlines. The cautiousness is warranted. San Mateo County briefly resumed jury trials, only to issue another stay after prospective jurors were exposed to a person with who tested positive for COVID-19.9

These orders no doubt provide the court with the flexibility it needs to manage a trial docket during a pandemic. However, at the six month mark, we are beyond the triage stage of our reaction to this pandemic. It is time to stop extending the statutory speedy trial deadlines. Cases in which the court cannot provide the parties with a jury trial within the prescribed period should be dismissed. While this consequence may seem extreme to some, it is no more extraordinary than the substantial continuances defendants have already endured. It’s time for something else to give.

This may be the best approximation of justice we can offer in lieu of the prompt, effective jury trials we are used to. Keep in mind that it is innocent defendants who benefit most from speedy trials. Furthermore, the threat of a trial or dismissal will bring both parties to the table to settle cases in a way that is not happening currently. The availability of at least one courtroom as well as the disconcerting aspects of COVID-era trials will be sufficient to deter defendants from inundating the courts with time-not-waived cases in the hopes of a dismissal. And the threat of a dismissal will encourage the prosecution to make offers that account for defenses that could be born out at trial and that appropriately weigh the threat to public safety caused by the jury trial itself. Some cases will still go to trial, but the enforcement of section 1382’s time limits will help ensure that only the most important cases make it there.

1 Administrative Order No. 20-04.
2 Burgos v. Superior Court (2012) 206 Cal.App.4th 817.
3 Judicial Council Order, March. 23, 2020.
4 Judicial Council Order, March 30, 2020.
5 Administrative Order No. 20-06.
6 Judicial Council Order, April 29, 2020.
7 Administrative Order No. 20-10.
8 Administrative Order No. 20-11.
9 Bob Egelko, “San Mateo County Suspends Jury Trials—Employee Tested Positive for COVID-19,” San Francisco Chronicle, July 20, 2020, retrieved August 27, 2020.