When the COVID-19 pandemic hit the nation in March, the leaders of judiciaries in every jurisdiction in the country had to take quick and drastic steps to figure out how to keep the wheels of justice turning under unprecedented and almost untenable circumstances. At first, many states pursued similar policies, postponing all but the most essential operations and instituting social distancing requirements.
But now, more than six months after those initial shutdowns, approaches in different states are starting to diverge, with some states moving aggressively to return to business-as-almost-usual while others continue to counsel caution. A short hop across the border shared by North Carolina and South Carolina offers a good look at what that divergence looks like.
From the very outset, North Carolina Supreme Court Chief Justice Cheri Beasley, the leader of the North Carolina Judicial Branch, was one of the country’s more proactive chief justices. Beasley issued the first of her emergency directives regarding COVID-19 on March 13, which halted most in-person court proceedings. Jury trials stopped and in-person court operations were severely limited. By most accounts, things went about as smoothly as possible, or even better than expected. Technology played a huge part in that, as thousands of hearings were held through videoconferencing.
Since then, Beasley has issued 15 orders extending many of those directives, most recently on Sept. 15, when she maintained the status quo of allowing hearings to be conducted remotely; allowing only people who have business at county courthouses to enter them; and most notably, forbidding jury trials for the next 30 days.
For much of spring and summer, things in South Carolina looked broadly similar. But recently, North Carolina’s southern neighbor has set off in another direction. Jury trials resumed in August there, and on Sept. 21, per the orders of South Carolina Supreme Court Justice Donald Beatty, courts resumed full operations.
The difference is not because South Carolina has done a better job of suppressing the virus—quite the opposite, in fact. The two states have had an almost identical number of deaths due to COVID-19 despite the fact that North Carolina is more than twice as large. As of Sept. 22, North Carolina, which has a population of 10.9 million, has had 195,000 confirmed COVID-19 cases and 3,283 deaths. South Carolina, which has a population of only 5.1 million, has had 138,000 confirmed cases of COVID and 3,212 deaths.
But even though North Carolina has had more success at containing the virus than most states, Beasley noted in an interview with Lawyers Weekly that several courthouses across the state have had to close in the past few weeks because court staff have tested positive for COVID-19.
Beasley is awaiting reports from the state’s senior resident superior court judges that are due by Sept. 30 regarding their safety plans for resuming jury trials. The original deadline was Sept. 1, but Beasley said the judges needed more time to compile them. Finding suitable venues to resume full court operations and holding jury trials is one of the biggest challenges that North Carolina is facing, Beasley said, as larger counties might have the space, smaller counties do not. Beasley said that there are still many unanswered questions, such as what would happen if a juror tested positive in the midst of a trial.
“Does that mean [there would be] a mistrial?” Beasley said. “Is there a likelihood that other people in the courtroom would contract COVID? We have to make sure we have the right accommodations so people are safe.”
Every state is facing similar pressures inflicted by the shutdowns. While some matters are being resolved via settlements, and online hearings have helped move along others, a massive backlog of cases has nevertheless built up over the last few months. The issue is particularly worrisome for prosecutors because the constitution guarantees defendants the right to a speedy trial, and criminal jury trials can’t be moved online. Prosecutors in both states, and likely all states, are eager to resume holding trials and begin chipping away at that backlog. Criminal defense attorneys, conversely, have argued that it still isn’t safe to resume full operations.
Peg Dorer, executive director of the North Carolina Conference of District Attorneys, said that there have been some indications that jury trials could resume on Nov. 1. Even so, jury summons must be sent at least 30 days before any trials can be initiated.
“There are many DAs who are anxious to move forward,” Dorer said. “We’re just awaiting the Chief’s permission.”
Beatty, the chief justice in South Carolina, declined to be interviewed by phone. (Lawyers Weekly sent him questions about the resumption of court operations, but a spokeswoman for that state’s Judicial Branch said that he wouldn’t be able to respond to them by press time.) But Renee Elvis, the clerk of court in Horry County, home to Myrtle Beach and the state’s fourth-most populous county, said that the backlog there was acute.
“I feel like because the constitution tells us we have to give these folks a speedy trial, as long as we can come up with a way to do it safely, then it is an obligation to do that,” Elvis said. “And we are blessed enough that we have a big enough building where we can spread people out.”
Regarding North Carolina’s own backlog, Beasley said that the state’s court system already had a backlog pre-COVID, and the courts are still hearing many non-jury cases every day. She said that it is imperative that the state balance the court’s functions with the people’s safety.
“We have had dozens of court officials and employees who have contracted COVID-19 and we are still seeing incidents,” Beasley said. “We want to be as safe as possible.”
Both approaches, then, come with their own risks and disadvantages. As neighboring states now set off in very different directions, their experiences will no doubt be closely watched to see what outcomes each approach brings.
Follow Bill Cresenzo on Twitter @bcresenzonclw