As with other areas of legal practice, the criminal justice system has felt the effects of COVID-19 and the resulting shutdown orders that have been mandated across the county. Courts at every level of the judiciary have postponed or canceled proceedings, the focus of investigations and prosecutions is changing, and inmate populations at various correctional facilities (both at the state and the federal levels) are decreasing. The conduct of law enforcement agencies, prosecutors and the courts continues to shift as the system attempts to maintain the status quo during the current pandemic. As our criminal justice system adjusts to the effects of the pandemic on society, it is important to understand how such adjustments could modify or alter criminal procedures and legal protections at both the investigatory and the resolution stages of a case. Having such an understanding will allow for an informed approach to motion practice, plea negotiations and investigatory responses.

As Society Battles With COVID-19, Government Attorneys Battle With the Clock

All subpoena recipients, from large corporate entities to individuals, will likely face increasing difficulties in responding to investigatory subpoenas and regulatory requests for information, given the measures put in place to prevent the spread of COVID-19. Shelter-in-place orders and other newly enacted social distancing laws create a lack of personnel and resources, which in turn detrimentally affect subpoena recipients’ abilities to access and produce sought-after records. As a result, criminal prosecutions and investigations could be delayed. While criminal enforcement officials will undoubtedly work with subpoena recipients to extend compliance deadlines, the resulting delays will prolong investigations and increase government requests for tolling agreements to extend/toll statutory limitations. But even if a defendant will not consent to equitable tolling, the government can easily and likely persuasively argue that compelling circumstances exist to warrant equitable tolling “given inevitable delays” due to COVID-19.[1] Indeed, the Department of Justice has already asked Congress to pause the statute of limitations for criminal investigations and civil proceedings during national emergencies, and for one year following the end of the national emergency.[2] Given that timetables for social distancing and shelter-in-place orders are still unknown, we are likely to see the government use any tool at its disposal to extend time periods for criminal prosecutions and enforcement actions.

The Unique Challenges of Convening Grand Juries During the Shutdown

Because of COVID-19’s shelter-in-place orders and other social distancing measures, grand juries are not able to convene to hear testimony and evidence presentations in connection with ongoing criminal investigations. There are, however, certain jurisdictions, such as the Southern District of New York (SDNY), that are using technology to allow for the grand jury process to continue.

Specifically, the SDNY launched a videoconferencing system which will allow grand jurors to convene in White Plains or Lower Manhattan in order to avoid traveling and close contact. SDNY Chief Judge Colleen McMahon ordered that “suitable space” exist in these two areas for grand jurors to deliberate virtually with their co-jurors on criminal cases, and “their presence in either location will count toward the minimum 16 needed for a quorum.”[3] Despite this technological work-around, there are several potential drawbacks with grand jurors hearing cases remotely. First, secrecy is paramount in the grand jury process. When these presentations occur remotely, the proceedings are inherently less secure, and therefore there is a much greater risk that non-sanctioned personnel will be able to observe the process, thereby jeopardizing the safety of witnesses and confidentiality of documents. Additionally, it is likely more difficult for grand jurors to evaluate witness credibility and physical evidence through a screen versus in person. Lastly, the ability for grand jurors to ask questions of the witness will be affected, as they can no longer speak with the assigned prosecutor in the same room.

Despite SDNY’s innovativeness in continuing to convene grand juries, it is yet to be determined whether this videoconferencing system is a solution to the challenges brought about by the restrictions put in place to combat COVID-19 or whether it is an invitation for further problems. In other jurisdictions throughout the country, there is a mix of technological innovation, complete shutdown of the grand jury process and a business-as-usual mentality.[4] It is important to be cognizant of the potential impact of these new procedures and work-arounds on the grand jury process.

Sixth Amendment Protections Are Not Immunized

The response to COVID-19 has caused federal and state courts to be closed for indefinite periods of time or to run with limited capacity, significantly affecting defendants’ Sixth Amendment rights. This is most apparent in the context of a defendant’s right to a speedy trial, especially when he/she is incarcerated (as discussed in more depth below).

The Federal Speedy Trial Act establishes time limits for completing different stages of a federal criminal prosecution.[5] As a result of the recent delays in these processes, various federal courts have issued administrative “standing orders” suspending the Speedy Trial Act. For example, the SDNY issued a standing order excluding time between March 16, 2020, and April 27, 2020, from counting under the Federal Speedy Trial Act, noting “the ends of justice served by taking that action outweigh the interests of the parties and the public in a speedy trial.”[6] These exclusions of time will likely be extended, tracking shelter-in-place orders. The closures and resulting speedy trial implications also exist at the state level, with 34 states suspending in-person proceedings statewide.[7]

As the American Bar Association has noted, “[M]easures taken to address the dangers of the coronavirus are expected to exacerbate the significant backlog of cases in state and federal courts, not to mention immigration courts that have a backlog of more than 1 million cases.”[8] This will leave dockets riddled with trial-ready cases that will need to be scheduled when restrictions are lifted. Incarcerated defendants will likely take priority once the courts reopen, but when that will happen on both the state and federal level is still very much in flux. White-collar matters will likely be deemed a lower priority in scheduling, possibly leading to an increasing push for plea resolutions to assist in clearing the docket backlogs.

Besides the Sixth Amendment’s guarantee to a speedy trial, the measures in place to combat COVID-19 are also affecting a defendant’s right to counsel. For incarcerated individuals awaiting trial or sentencing, their ability to consult with counsel are affected in a multitude of ways. The Federal Bureau of Prisons (FBP) issued a COVID-19 Action Plan detailing, among other things, legal visits and inmates’ access to legal counsel.[9] Noting that the Bureau was seeking to mitigate the risk of exposure created by external visitors, legal visits were suspended for 30 days starting March 13, 2020.[10] The Bureau did note that “case by case accommodation will be accomplished at the local level and confidential legal calls will be allowed in order to ensure inmates maintain access to counsel” and that “if approved for an in-person visit, the attorney will need to undergo screening using the same procedures as staff.”[11] The issue of an inmate’s right to consult his/her attorney is the subject of an ongoing dispute between the Federal Public Defenders and the FBP. Loretta Lynch was recently appointed as a referee to this dispute after the Second Circuit noted that the mediator “should have the stature, experience, and knowledge necessary to mediate this weighty dispute and ultimately facilitate the adoption of procedures for dealing with ongoing and future emergencies, including the COVID-19 outbreak.”[12]

The response to COVID-19 is also affecting witness interviews in regulatory and investigatory matters. As regulators conduct investigations and seek to interview witnesses, technology platforms such as Zoom are being employed in order to respect shelter-in-place orders. These remote interviews can present unique questions and issues for an attorney and his/her client that do not typically arise in a healthier environment. For instance, should “breakout rooms” be utilized by the attorney on Zoom for purposes of speaking to his/her client in a private channel? Instead of asking the enforcement attorney to take a break, defense counsel may now have to text message their client, or pause the interview and actually call the client to strategize, which could present additional challenges if documents, photographs or other forms of evidence are being discussed. Additionally, from a security perspective, Zoom can potentially be problematic. Zoom-bombing[13] (when a hacker enters a Zoom meeting and posts offensive material) and Zoom-spying (when attackers enter a Zoom meeting without the participants’ knowledge and steal confidential and classified materials) are both potential risks that one must be cognizant of in this setting.[14]

The Sixth Amendment’s guarantee to a speedy trial and right to counsel are being challenged in a unique way because of the changes brought about by COVID-19. Litigation in this area is likely to be plentiful as the pandemic continues and social distancing is enforced.

The Shrinking Prison Population

COVID-19 has also seriously impacted our state and federal detention systems. Prisons are particularly vulnerable to the spread of COVID-19, so much so that correctional facilities are painstakingly tracking the health status of their staff and their inmate populations. For instance, the FBP has a state-by-state “COVID-19 case tracker,” which provides a daily count of how many federal inmates and Bureau of Prison staff members have confirmed positive test results for COVID-19.[15] As of April 20, 2020, 495 federal inmates had tested positive for COVID-19, along with 309 FBP staff members.[16] Additionally, there have been 22 virus-related deaths within this incarcerated population, although the number is likely underreported.[17] Given the virus’s severity and ability to spread, there is a large push at both the state and federal level to reduce/minimize our prison population.

The increasing focus on reducing COVID-19’s impact on our prison system will likely lead to fewer bail applications, as more defendants will be released on their own recognizance. For instance, at the federal level, Attorney General William Barr told federal prosecutors to take the “COVID-19 pandemic into account when deciding whether to seek pretrial detention for criminal defendants.”[18] Additionally, the Attorney General noted, “[P]rosecutors should consider the pandemic as a factor, especially in cases where the defendant presents little risk of flight or harm to the community, or in cases where the defendant is particularly susceptible to COVID-19.”[19] Federal judges can also unilaterally act in this context under 18 U.S.C. § 3142(i). Pursuant to this section of the United States Code, a judge can temporarily release an individual prior to trial, if the judge determines that it is necessary for preparation for the persons defense or for another compelling reason.[20]

These same discussions are occurring at the state level. For example, California is seeking to end cash bail for suspected lower-level offenders in order to keep jail populations low amid the COVID-19 pandemic.[21] Defense counsels across the board will likely be able to argue that given shelter-in-place orders and travel bans, their clients are not flight risks and thus should remain at liberty, pending prosecution. This argument is likely most compelling in the context of white-collar/corporate defendants, where home confinement could be a more appropriate solution to ensure the defendants’ appearance.[22]

Lastly, COVID-19 is also affecting criminal sentencing. Attorney General Barr issued a second memorandum in which he noted his authority to convert certain federal inmates’ sentences into home confinement under the CARES Act.[23] According to Attorney General Barr, the ability to seek home confinement for certain eligible individuals is “a tool for combatting the dangers that COVID-19 poses to our vulnerable inmates, while ensuring we successfully discharge our duty to protect the public.”[24] Federal judges are granting many so-called “Compassionate Release Orders” in various jurisdictions throughout the country.[25] The FBP also has unilateral authority to release a prisoner from the place of his/her imprisonment for a limited period to “obtain medical treatment not otherwise available” or “engage in any other significant activity consistent with the public interest.”[26]

Certain “eligible” inmates are also getting released from state and local facilities. For example, New York Governor Andrew Cuomo recently ordered the release of 1,100 parole violators. Noting the “non-serious reasons” for their incarceration, the Governor stated, “[W]herever we can get people out of jails, out of prisons, we are.”[27]

Against this backdrop, incarcerated defendants should explore whether they qualify for compassionate release, and sentenced but not yet incarcerated defendants should seek to extend their surrender or serve their sentence via home confinement. Lastly, white-collar and corporate defendants negotiating plea dispositions should consider these alternatives to incarceration, as non-violent offenders are more likely to be considered for home confinement during this pandemic crisis.

Conclusion

While this alert has outlined various changes to our criminal justice system over the past couple of months, these are just a handful of the ways that COVID-19 is impacting criminal procedures and the process and outcome of criminal and regulatory investigations and prosecutions. The continual extension of shelter-in-place orders and social distancing measures is straining these processes in a novel way. With little end to these adjustments in sight, our experienced white collar criminal defense attorneys are available to assist clients in navigating through the extensive impact COVID-19 is having on the federal and state criminal justice system.

[1] United States v. All Funds Distrib. To, 345 F.3d 49, 54 (2d Cir. 2003); United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (“Absent a showing of intentional inducement or trickery by the defendant, a statute of limitations should be tolled only in the ‘rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice.’”).
[2] Betsy Woodruff Swan, DOJ Seeks New Emergency Powers Amid Coronavirus Pandemic, POLITICO (March 21, 2020), available at https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023.
[3] Pete Brush, Grand Jurors in SDNY Get Video Option Amid Virus Outbreak, LAW 360 (March 21, 2020), available at https://www.law360.com/articles/1255774/grand-jurors-in-sdny-get-video-option-amid-virus-outbreak.
[4] Robert Loeb, Katie Kopp, Melanie Hallums, The Federal Court Begins to Adapt to Covid-19, Lawfare (March 18, 2020), available at https://www.lawfareblog.com/federal-courts-begin-adapt-covid-19.
[5] 18 U.S.C. § 3161. Time Limits and Exclusions.
[6] The Southern District of New York, Response to COVID-19 (Coronavirus), United States District Court Southern District of New York, available at https://www.nysd.uscourts.gov/covid-19-coronavirus.
[7] State Court Closures in Response to the Coronavirus (COVID-19) Pandemic, 2020, Ballotpedia (April 15, 2020), available at https://ballotpedia.org/State_court_closures_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020.
[8] Pandemic Disrupts Justice System, Courts, American Bar Association (March 16, 2020), available at https://www.americanbar.org/news/abanews/aba-news-archives/2020/03/coronavirus-affecting-justice-system/.
[9] Federal Bureau of Prisons COVID-19 Action Plan, Federal Bureau of Prisons (March, 13, 2020), available at https://www.bop.gov/resources/news/20200313_covid-19.jsp.
[10] Id.
[11] Id.
[12] Stewart Bishop, Loretta Lynch to Referee Dispute Over Detainees’ Atty Access, Law 360 (March 23, 2020), available at https://www.law360.com/whitecollar/articles/1256200/loretta-lynch-to-referee-dispute-over-detainees-atty-access?nl_pk=5da50ce1-c87e-4a40-a009 022a5094923e&utm_source=newsletter&utm_medium=email&utm_campaign=whitecollar.
[13] Rae Hodge, No More Zoombombing: 4 Steps to a More Secure Zoom Video Chat, CNET, (April 16, 2020), available at https://www.cnet.com/how-to/no-more-zoombombing-4-steps-to-a-more-secure-zoom-video-chat/.
[14] Pentagon Bans Zoom Over ‘Security Concerns’ After Reports of App Routing Data Through China, American Military News (April 14, 2020), available at https://americanmilitarynews.com/2020/04/pentagon-bans-zoom-over-security-concerns-after-reports-of-app-routing-data-through-china/.
[15] COVID-19 Coronavirus, Federal Bureau of Prisons (April 15, 2020), available at https://www.bop.gov/coronavirus/.
[16] Id.
[17] Id.
[18] Mike LaSusa, AG Barr Tells Prosecutors to Consider Pandemic a Bail Factor, LAW 360 (April 6, 2020), available at https://www.law360.com/articles/1260965.
[19] Id.
[20] U.S. v. Avenatti, 8:19-cr-61-JVS (C.D. Cal. Mar. 27, 2020).
[21] KCRA Staff, COVID-19: $0 Cash Bail for These Offenses Start in California, KCRA 3 (April, 13, 2020), available at https://www.kcra.com/article/zero-cash-bail-lower-level-offenses-coronavirus-inmates/32127767#.
[22] United States v. Garlock, No. 18-CR-00418-VC-1, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided.”).
[23] Memorandum from William Bar, Att’y Gen., to Michael Carvajal, Bureau of Prisons, (March 26, 2020) (on file with author).
[24] Id.
[25] U.S. v. G. Steven Burrill, 3:17-cr-00491-RS at 7 (N.D. Cal. Apr. 10, 2020).
[26] 18 U.S.C. § 3622(a). Temporary Release of a Prisoner.
[27] Bernadette Hogan, Cuomo Orders 1,100 Parole Violators Released from Jails Over Coronavirus Concerns, New York Post (March 27, 2020), available at https://nypost.com/2020/03/27/cuomo-orders-1100-parole-violators-released-from-jails-over-coronavirus-concerns/.