Desperate times call for unprecedented measures, even for the courts. At an emergency meeting Saturday, California’s Judicial Council voted unanimously to delay criminal arraignments, extend timelines for criminal trials, and use technology wherever possible to help courts conduct remote proceedings as they grapple with ensuring due process while protecting public health.

The council meeting was delayed an hour by technical difficulties, adding an ironic note that was not lost on some council members.

“Our experience this morning shows us that technology is an aid, it is not always the clean simple answer we would like it to be,” said council technology committee chair Justice Marsha Slough.

Though the council had quadrupled its phone line capacity, public interest in listening in on the meeting was so great that the number of people trying to call in quickly overwhelmed and crashed the system.

“I promise we’ll get better at this,” said council Administrative Director Martin Hoshino.

Chief Justice Tani Cantil-Sakauye called the meeting on Thursday after cancelling the council’s regularly-scheduled business meeting so council members, many of whom are trial judges, could concentrate on dealing with problems in their own courts.

But the need for the council to step in and issue some statewide guidance quickly became apparent. Some courthouses shuttered completely while others continued to hold “essential hearings” on evictions, juvenile cases and criminal matters in crowded courtrooms.

Last week, the California District Attorneys Association sent the council’s presiding judges committee a letter asking for some consistency.

“Right now, there are inequities in California’s courthouses,” Alameda County District Attorney Nancy O’Malley wrote on behalf of the group. “In other words, some courts are implementing variations of emergency procedures while some courts are ‘business as usual.’”

She added, “This lack of equity and continuity in the treatment of criminal defendants and those who dedicate their lives to the administration of criminal justice raises concerns regarding equal protection under the law and now, most urgently, violates every health professional’s warning about the spread of the coronavirus.”

Her letter cited one unidentified courtroom where multiple defendants stood in close proximity to each other and their defense attorneys, in violation of strong recommendations that people stay six feet apart.

First Amendment advocates also weighed in with concerns about shuttered courtrooms and unpredictable access to telephonic hearings and court records for the press and public.

Friday night, Governor Gavin Newsom issued an executive order giving Cantil-Sakauye, as chair off the council, “to take any action she deems necessary” to maintain operations at any court.

“The purpose of this Order is to enhance the authority of the Judicial Council and its Chairperson to issue emergency orders; to amend or adopt rules for court administration, practice, and procedure; and to take other action to respond to the emergency caused by COVID-19,” he wrote.

Public comments flowed in ahead of Saturday’s meeting from district attorneys, public defenders and legal non-profits. Most were concerned about people losing their homes to foreclosure or being evicted from housing.

It was not an issue on Saturdays’ meeting agenda, however.

Hoshino said the council would likely take up the issue at a future emergency meeting.

“There are other just as important areas we will need to act upon. This is probably not the first action there will subsequent meetings to be had along the way,” he said.

Assembly member Richard Bloom, D-Beverly Hills, pressed for clarification from the council on unlawful detainer laws.

“For those facing unlawful detainees and foreclosures, the timelines are very short. I’d like to encourage you to consider carefully whether those areas are the next to be addressed,” he said. “There is a good deal of uncertainty throughout the state of California as to whether they will be able to stay in their housing. The last thing we need right now is to increase the amount of homelessness on our streets.

Still other public commenters were worried about inequities in the pre-arraignment process, as the council prepared to consider delaying preliminary examinations and bail hearings for arrestees from the statutory 10 court days to 30 court days, along with extending the time period for holding a criminal trial by more than 30 days.

“The motivation for the proposal is understandable, but the proposal itself is ill-advised,” Berkeley Law Professor Erik Stallman wrote to the council. “Administrative delay threatens to expose in-custody defendants to unjustifiable, life-threatening risks. We are nowhere close to as bad as things are going to get. Any delay in proceedings should not extend to those defendants who are in custody.”

The California Public Defenders Association also weighed in on the criminal statutory time extensions in an 8-page letter urging the council to ensure the quick release of detainees.

Oscar Bobrow, president of the CPDA, wrote “We believe social distancing is possible in courtrooms and hallways of courthouses and is crucial during this public health emergency to protect our clients, court staff, each other and our families that such practices are implemented.”

The public defenders recommended temperature checks at court entrances, limited courtroom seatings, face masks, provision of hand sanitizer, and that defendants not be handcuffed to each other.

“We import you not to suspend the protections of the right to a speedy hearing,” he wrote.

Slough noted the flood of comments like these at the outset of the meeting.

“What I would say is the extensions that are proposed today are in no way shape or form meant to be an opportunity to sit and wait. Rather they are meant to be an opportunity to provide courts the ability to address arraignments and preliminary hearings as they are able to do so,” she said.

She also pointed out that the chief justice had already given the courts permission to lower bail amounts, in some cases to zero, to reduce the number of in-custody defendants.

For some, this isn’t enough. Kathleen Guneratne, senior attorney for the ACLU’s Northern California chapter, wrote a letter asking that detainees be released if they cannot be arranged within 10 days.

Council member Judge Jonathan Conklin of Fresno County Superior Court also asked if courts that have previously closed will be required to reopen.

“If courts have put out notice they’re closed now until a date in late April, will these orders require them to open prior to that?” he said.

Slough answered, “The trial courts need as best they can to open to provide relief, to function not as shuttered business offices but rather function as true beacons of justice during real times of crisis. Frankly, I think our Constitution demands nothing more. These extensions are not a license to wait.”

“I concur,” Cantil-Sakauye said. “We are courts, and we are open in crisis. And we are always essential services.”

She added defendant appearances could be satisfied through remote technology, a critical shift to protect the public and inmates themselves from spreading infection.

“People in the courts, many are first responders. They are law enforcement, they are firemen, and we need judges who are healthy and able to sit on the bench,” she said.

“I have received no assurance that the jails in California are practicing social distancing,” Cantil-Sakauye said. “I have received no assurance when they transport inmates onto a bus and into the holding cells of most courthouses that they are practicing social distancing.”

She added, “This is about protecting the public, flattening the curve, making sure courts are not vectors.”

— By Maria Dinzeo