The criminal justice system is a complex network with many moving parts.
It’s a challenging scenario to make it work smoothly during the best of times, downright onerous during a global public health crisis with government restrictions on gatherings and orders to stay home if possible.
McLennan County’s felony and misdemeanor judges have worked with other county officials to develop a system where they can conduct videoconferences involving jailed defendants, their attorneys and prosecutors, who all can participate while keeping safe distance in different locations.
Conceivably, the judge, the lawyers and the court reporter all could be at home, and the hearings could be conducted over Zoom, a teleconferencing app that officials have linked to YouTube to satisfy requirements governing public access to courts.
Matt Johnson and Ralph Strother, the county’s two felony court judges, trotted the new system out for a test drive last week and were going to get it up and running with pleas and hearings set for most every day this week. The judges are focusing on pleas and sentencings for those in the county jail whose court proceedings result in their release for time served, being placed on probation or sent to prison. The primary goal is to free up as much space as possible in the county jail system during the COVID-19 scare.
But those plans came to a screeching halt Wednesday evening, when McLennan County District Attorney Barry Johnson announced he was closing down his office, directing his staff to work from home and that his assistants would be available to handle court activities on Fridays only.
A recording in the DA’s office says they cannot take calls but to leave a message and someone will get back in touch within 72 hours.
While the judges say they will adjust their schedules to accommodate the DA’s actions, Barry Johnson’s decision to limit court activities to one day a week has set off a flurry of discord among the local criminal defense attorneys.
The attorneys express concern for their clients. Also, those appointed by the court do not get paid by the county until their cases are resolved.
Attorney Robert Callahan complained that one of his jailed clients is ready to plead guilty for a probation offer, but now, with the limited schedule, he cannot get into Strother’s court to do so until April 17.
“No one elected official is responsible for the bottleneck,” Callahan said. “There’s plenty of blame to go around. The Texas Supreme Court relaxed our court rules to make conducting business remotely painless. We have clear direction from the governor. We have clear direction from the mayor. But for some reason McLennan County can’t get traction. Every day, a new department is the holdup.”
Attorney Jessi Freud said the district attorney’s decision to limit court operations is “particularly upsetting” when judges, defense attorneys and court staff are willing to work to ensure the criminal justice system continues to operate in a safe manner.
“It’s very disappointing that the elected district attorney, the chief law enforcement officer in this county, simply does not want to work,” Freud said. “Scaling back operations of the district attorney’s office to only one day a week will make this disaster worse for everyone touched by our county’s criminal justice system. It will most harshly affect members of our community who are incarcerated, legally innocent, and awaiting their day in court or to resolve their case.
“Is Mr. Johnson truly saying he or his staff cannot safely participate in a hearing by iPad, laptop or cellphone? It’s outrageous and, quite frankly, shocking that this is the response of an elected official in the 21st century, to take a de facto vacation on the taxpayer’s dime during a disaster while the rest of our local government works, our jail is full and people are waiting for their day in court.”
Barry Johnson said he took into account the health and safety of staff when deciding to limit court activity to one day a week.
“When the principal at Carver went into the hospital on Monday and died the next day, that coupled with the graph the president showed last night, it just really hit home,” Barry Johnson said. “I realized we needed to tighten up and take more extreme measures, where we have just a few people as we can in the office and the rest need to go home and work.”
He said the previous plan to spread out a few hearings in both felony courts in the morning and a few in the afternoon each day would require someone from his staff to be in the office all day, every day. This limits that to one day a week, he said.
Judges Strother and Johnson understand Barry Johnson’s concerns and said they will continue doing what they can to keep the wheels of justice turning in this unprecedented time.
“I have some reservations about it, but I guess I acceded to it because of the current situation,” Strother said. “But I do believe we cannot just continue to operate like this. My office is open, but I am willing on a temporary basis to accept all of this.”
Both judges have had to revise their dockets, but have scheduled about a dozen pleas or sentencings each for Friday. Under the previous plan, both judges would have disposed of more jail cases than that with hearings scheduled throughout the week.
“I understand Barry’s decision,” Judge Johnson said. “He has got to look out for his staff and the assistant DAs, and if an assistant DA is only available on Fridays, we will work around that. If we fill up Friday and we need more time in court, I’ll make a request to Barry at that point in time. But the demand for plea hearings is down dramatically because what drives people entering into plea bargain agreements many times is the fact their case is about to get reached for a jury trial.”
McLennan County officials have suspended jury trials through at least May 11.
Waco attorney Michel Simer said if her stepdaughter, an engineer for the city of Waco, and her husband, a U.S. Department of Agriculture veterinarian who travels throughout the state, can continue in their jobs, she questions why the DA’s office cannot stay open.
“Our office successfully completed nine pleas by video this week and several other attorneys have as well. The system was working until the DA unilaterally decided to shut it down,” Simer said. “We’re not asking the DA to take risks. We’re asking them to do their part. They are essential to ensure our justice system continues to operate. Every other player is at the table ready and willing to work, and they should not get a paid vacation at the taxpayers’ expense while we also continue to pay approximately $75 per person every day to house inmates in the county jail.”
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