In the second of our series of COVID-19 related podcasts, our hosts Jonathan Amarilio and Chastidy Burns speak with Amy Campanelli, the Public Defender of Cook County, about the constitutional issues being raised and the impact on the rights of the accused as criminal courts adapt to the logistical challenges brought about by the COVID-19 pandemic.
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The Criminal Courts Adapt to COVID-19 Edition: How the Pandemic Is Impacting the Rights of the Accused
Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, the podcast where young and youngish lawyers have unscripted conversations with our guests about our legal news, stories, topics and whatever else strikes our fancy.
I am your host Jon Amarilio of Taft Law and my co-host today is Chastidy Burns of the Cook County Public Defender’s Office. Hey Chastidy.
Chastidy Burns: Hey everybody.
Jon Amarilio: So as part of our ongoing series of the COVID-19 pandemic, we have a special guest on the pod today, your boss, Cook County Public Defender Amy Campanelli.
As the Public Defender, Amy leads an office of some 650 attorneys and staff dedicated to representing the indigent accused. As only the second woman to hold that post, Amy has been at the forefront of numerous reform initiatives, including bond court reform, strengthening problem-solving courts, community outreach, and professional development.
As a Public Defender, Amy is serving on the front lines of the legal profession’s response to the pandemic and we are very lucky to have her with us today, remotely of course.
Amy, welcome to @theBar.
Amy P. Campanelli: Thank you Jonathan and hello Chastidy.
Chastidy Burns: Hi. Thanks for coming Amy.
Amy P. Campanelli: Absolutely.
Jon Amarilio: So Amy, I thought we could start our conversation today with some background and discuss the state of our criminal courts. Many of our listeners will know from their own practice or just from the news that courts across the country are at least partially closed, which will likely create a lot of problems for litigants, for attorneys, for judges and for the courts themselves, which I think we will get into later in the pod.
But to start, what is the current status of the criminal courts in Cook County? I know it’s one of the largest court systems, if not the largest in the country, are the courts open? If they are open, are they running properly? What constitutes running properly? Are they put on hold? What’s going on?
Amy P. Campanelli: Well, obviously there is a lot going on Jonathan. The courts are partially closed, and when I say that is obviously only certain activity is occurring in the courts right now, which are bond hearings and preliminary hearings and arraignments and all of that is being done pretty much virtually.
There are a few staff at each of the courthouses. We have a very spread out court facilities; we have 26 in California, where Chastidy is sitting right now, that’s our big felony courts and then we have five suburban courts. We have moved the misdemeanor courts, which are usually out in the police districts, over to 26 in California and then we have our domestic violence court.
So basically everything is happening virtually. There are still a few feet on the ground. Some of my investigators are still going to the courthouses to take photos of clients if they have been injured. We cannot do that at this time virtually.
There are some supervisors on the ground, maybe one or two attorneys, because we still have to move paperwork and get orders and get things signed and that is very difficult at this time virtually to do. But it’s amazing really how fast we did this and how we were able to set up all my lawyers with laptops at home so they could still continue to do their work, bring their files home, use the case management system to update their cases, take phone calls from clients who are in the jail or on bond and pretty much do everything virtually.
So things are running. There are no trials. There are no bench trials. There are no jury trials. The Illinois Supreme Court entered an order. The chief judge asked the Supreme Court to enter an order to stall all of the trials with no fault to the state or the defense.
So we had several trials that were set and for a better lack of term, they were set with a demand for trial, which means we told the judge and the court that we were ready for trial; it is called a speedy trial demand. Those cases have been continued probably past the time that they were to go to trial. Unfortunately, the clients cannot go to trial. We have no juries. We have no judges who are sitting in trials. So that’s pretty much how it’s going.
Your question had a lot of questions and I am not sure if I answered everything you said Jonathan, but there was a lot in that question.
Jon Amarilio: No, I know, I know, and it absolutely did. So you mentioned speedy trials. I think we know from practice, from law schools or just from watching TV that criminal defendants in particular have a lot of important constitutional rights, some of which are time-based, like the right to a speedy trial. How is the pandemic affecting those rights? You said that the bond courts were still up and running, you said that jury trials were at least suspended. What about bench trials?
Amy P. Campanelli: Yeah, we are not doing any bench trials. We are not doing any trials at all. And the rights are actually suspended at this time, that’s the best way I can put it.
So if I was supposed to go to trial let’s say today at 26th Street and it was day 120, I was in custody and today would be the last day that the state could bring me to trial, that has now been continued another 30 to 60 days. So that client is still sitting in custody. He or she will have their trial; it just won’t be within that time period of 120 days.
And the Illinois Supreme Court came down with that order. We may be able to do something at a later date, a motion to dismiss the case based on because that client is not — it’s not his fault. The pandemic isn’t his fault. It’s not his fault that he is in custody. He is supposed to be brought to trial within 120 days from his demand for trial.
Chastidy Burns: And Amy, how far out are cases being continued at this point.
Amy P. Campanelli: It looks like, I don’t have the most up-to-date schedules, but most of the cases are occurring after May 18th. The judge extended the orders for cases to be continued until after May 18th. Of course he could bring that back depending on how we go with the COVID-19, right, that could be reversed. We have had several different orders, everything is changing daily.
But it looks like misdemeanor cases are probably continued longer than that. They are put on a key date. A key date is when the police officer is due in court from that district or that suburb. So misdemeanor cases might have been continued more than 30 days, past that May 18th day, but that’s about what it’s been after May 18th.
Chastidy Burns: Okay. And you mentioned bond hearings. I know that your assistant public defenders are doing a lot of work from home as far as trying to get nonviolent offenders out of custody and things like that. Can you talk a little bit about the emergency bond hearings that we had been doing a couple of weeks ago and what the status is with bond reviews?
Amy P. Campanelli: It’s been amazing. I cannot say enough about my staff and my lawyers and my management team and everybody who worked so hard to get clients out of custody. We have successfully released probably over a 1,000 of our clients already. And at the beginning when the pandemic first started, the state’s attorney — one staff on the state’s attorney, one staff of mine and the sheriff’s office were working together to identify clients who were at risk, who could be safely released from the jail.
But that took a long time going through these lists of people; we started with misdemeanor clients, pregnant women, some low-level felonies and 8-10 days we had an agreed list of about a 100 people that we could release, even though we thought there were at least 600 or 700 people. So that was agreed with the state’s attorney.
So then I filed a petition asking for an expedited release of certain categories of individuals. There were seven categories that I laid out in my petition and I argued that petition before LeRoy Martin on March 23rd.
Chastidy Burns: A lot of us wish we could have been there to see it.
Amy P. Campanelli: Yeah. Well, thank you. It was — he did not rule in my favor, but he didn’t rule against me either. What he basically said was, I agree with your categories of persons who should be released from the jail, but I am not going to do it on mass. We are not going to say here is 500 names and I Judge Martin, I am not going to sign a release for all those 500 people. We are going to go before the individual judges where those cases are pending, but I am going to have all these judges in the building over the next four days.
So over the next four days he had several judges come to 26th Street and hear these cases, but one by one. It took a long time, but in the end it was very organized and we got about 700 people released in those four days.
Chastidy Burns: It’s amazing.
Amy P. Campanelli: It is amazing. And we are still continuing, at the same time in the suburbs, even though Judge LeRoy Martin is only over the felony courthouse, the suburban presiding judges did the same thing. We started to have a lot more hearings in the suburbs too and so we got a lot more people released in the suburbs as well as the felony courthouse. And we are continuing, my lawyers are continuing to file bond motions from home with the help of their management staff and we are having hearings today. I am sure there is at least 20-30 hearings, if not more, at 26th Street and throughout the suburbs asking for release.
So we continue to get people released and that’s where I think we got to about a 1,000 or more.
Chastidy Burns: I think that one thing that a lot of people don’t think about is that there is actually bond court every day, right, on the weekends and on holidays?
Amy P. Campanelli: Right, yes.
Chastidy Burns: Has anything changed about the way that bond court is functioning, the state’s response when people are having bond hearings in regular bond court now? Particularly can you talk about drug cases?
Amy P. Campanelli: Well, certainly the drug cases, when they come in, the state’s attorney is not prosecuting the drug cases at the bond court; they are dismissing those cases with the thought that they may re-indict those clients once the Illinois State Police Crime Lab comes up and running. The Illinois State Police Crime Lab is not doing business right now. They are not testing the drugs. So the state cannot prosecute someone when they don’t have the evidence, that wouldn’t be fair under the law to go forward with a case when you know you don’t have the evidence.
And they are doing the same thing at the preliminary hearing stage on drug cases. They are narrowly processing those cases with the thought that when this pandemic is over, they may re-indict some of those cases. So that’s the drug cases.
As far as the process of bond court, the clients are on virtual Zoom. They are in the basement of 26th Street. We were interviewing them face to face until about maybe a week-and-a-half ago and now we have them set up with their own computer in a room where they can be private, we are interviewing them from a computer. My lawyers are talking to them through a computer. They are having the court with the judge, again, is virtual on a computer and the state’s attorney is on virtual through Zoom. So they are doing the hearings virtually in bond court and it seems to be working out.
It does distress me, I will tell you. I am torn. I mean obviously we have to do this, but for years we had video bond court, for almost 10 years and trust me when I say that it’s easy to hold someone in custody when you are just looking at them on a screen. It doesn’t look like a human being. You don’t have to look them in the eye. It’s easy to say okay, I am holding you on a $50,000 D Bond, knowing that that person could never post $5,000.
So I know after this is over and there will be a day when this is over, we must go back to in-person bond hearings, in-person preliminary hearings, none of this video stuff.
Chastidy Burns: Absolutely.
Jon Amarilio: Amy, how is this affecting the plea bargaining system? Are you seeing an increase or decrease? I know it’s still early days, but I could imagine that the state of the world creates an incentive to plea right now, even more so than that existed before.
Amy P. Campanelli: Well, I don’t think that we are seeing a lot of pleas and this is the reason why. If there is an agreement with the state’s attorney that the client would get probation, we are advancing those cases and bringing those to courts so that the client can get released from jail, right, if this is an in custody person.
The people who are out of custody, there is no reason to enter a plea of guilty at this time. We don’t want people coming into the building. People aren’t set up with a computer at their home to do virtual court from their home; I mean the clients who are out of custody.
But the in custody clients who could plead guilty and get out of custody, we are doing those pleas. However, a lot of our pleas unfortunately end up where someone is sentenced to the penitentiary. So we are not doing those because the Illinois Department of Corrections has told us they are not accepting any clients to the Illinois Department of Corrections.
I am sure Sheriff Dart, I don’t want to speak for him, but he would be more than willing to have pleas of people to the penitentiary so he could get them out of his jail, but they can’t go anywhere. The Illinois Department of Corrections is also trying to depopulate, right, just like we are trying to depopulate the jail to make it safer for everybody who goes in and out of the jail, they are finally starting to do that with the several institutions through the Department of Corrections. So nobody is pleading to penitentiary time, but people are pleading guilty for probation or for a dismissal of a case.
Jon Amarilio: You mentioned earlier that basically the can is getting kicked down the road in terms of trials and that kind of thing and certainly that seems like the prudent thing to do. But at the same time it seems to me that there is really no end in sight, at least in the short or intermediate term for when the self-isolation procedures will end, right? Like the only hope, and maybe I am being a little cynical here; Chastidy, if you have something optimistic to add please do, but the only hope I am seeing right now for this ending is a vaccine which they are talking about not developing until early next year at the earliest and then not releasing to the public in sufficient quantities until the middle of next year.
What would happen if nothing fundamentally changes between now and a year from now? Would these trials continually get kicked out or is there any kind of contingency plan?
Amy P. Campanelli: At this point there is no contingency plan that I know of, but certainly the stakeholders; we have been talking, Chief Judge Evans, Toni Preckwinkle, Kim Foxx, myself, Sheriff Dart, Clerk Dorothy Brown, we would have to meet and talk and have a discussion about where do we go from now if we really didn’t see an end in sight.
Obviously the Illinois Supreme Court has suspended the statutory speedy trial, right?
Jon Amarilio: Right.
Amy P. Campanelli: But they cannot take away the constitutional speedy trial, the speedy trial under the Sixth Amendment. So constitutionally everybody must be brought to trial. And you have to weight. There would be a balancing act as to weigh the client’s rights versus this pandemic. There is no emergency loophole in the constitutional speedy trial. There is no tolling the constitutional speedy trial for a pandemic. There is in the state law, right, and that’s why the Illinois Supreme Court did toll the speedy trial rights of my clients.
We would have to go into court. Maybe I would have to go into federal court. Maybe I would have to file a petition stating that my clients must be brought to trial, we will have to figure it out.
If it’s virtual, witnesses could be virtually, on a screen, clients could be virtual. The problem is that we have to go out and investigate cases. We have to interview witnesses, we have to hit the streets, we have to look at the scenes of crimes, we have to gather evidence. That would be extremely difficult to do all that virtually, right? We eventually would have to go out on the street. My investigators are still going out on the street. They are wearing their masks and their gloves and all their protective gear, but everything has sort of been put on hold.
I don’t know. I would work with many other criminal defense advocates and criminal defense lawyers and civil rights lawyers to figure out a process to make sure that people are brought to trial because this could not go on forever.
Jon Amarilio: It seems to me that, and tell me if you disagree, that that’s really where the rub is going to be at some point, because generally when courts have deferred to other branches of government concerning the importance or the enforcement I suppose of constitutional rights during times of emergency, we have looked back on those times where the courts deferred and acknowledged it was a mistake, particularly in times of war; the Civil War, foreign wars, that kind of thing. If someone were to bring a speedy trial challenge, how would you see that playing out in the courts, a constitutional challenge I should say?
Amy P. Campanelli: Right. Well, I would see — I am cynical too, I would see probably a denial in allowing the extra time. I am not holding it against the state because they are in the same situation. They have a right to get their witnesses together to bring a case to trial just like we do. But obviously we would — if that was the situation, obviously I would be asking for the release of all my clients in custody who they can’t bring to trial. That would be the first thing, because they should not be sitting behind bars just because the state can’t bring them to trial.
And secondly, we would have to, like I said, file a petition in federal court. If the circuit court denied our motion, which probably might happen, I would have to keep following it up, take it up, and if the Illinois Supreme Court also was in favor of what the prosecution was arguing, then we would have to take it up to the US Supreme Court.
The Sixth Amendment, like I said, is very clear that you must be brought to trial. You have a right to a public and a speedy trial and there are no exceptions. There is no exception for a pandemic.
Chastidy Burns: Yeah, I agree. I think that definitely it would be hard to argue against maybe putting these clients out on electronic monitoring or something like that if they are not able to be brought to trial within the statutory timelines. I think it would be difficult for any judge to deny that request.
Jon Amarilio: What about violent offenders?
Amy P. Campanelli: When you say violent offenders, that statement alone to me isn’t accurate and I say that because they haven’t been proven guilty of anything. There might have been something in their past where they were convicted of; let’s say I was convicted of armed robbery in my past. Armed robbery is considered a violent crime, especially if I used a gun or a knife, you are armed with a weapon.
But I served my time. I did my sentence. Now I am arrested on, even if it’s another armed robbery let’s say; maybe I didn’t do it, maybe I am innocent. You cannot say that I am a violent offender just looking at the charge.
And nobody has a crystal ball. When we look back on what we have done over 50 years in Cook County, what we have said is let’s hold everybody in custody because of the few that might be released and commit a violent crime, let’s hold everybody in custody. And when you think about that, think about the numbers, just say a 1,000 people, a 1,000 people come to bond court. Do I lock up 990 people because 10 people will re-offend in a violent manner? I mean think about how unfair that is. No, it’s not fair. You don’t lock up 900 and all the other people because a few might re-offend.
So that’s where we are trying to change this culture change in bond court and get people thinking. Now we have got the pandemic. Now we have got this added extra, my clients are in danger sitting in jail and my former clients are in danger sitting in the Illinois Penitentiary and you cannot say that their lives don’t mean anything because they might have done a violent offense or because they are charged with a violent offense.
There are ways. I have clients who are charged with first degree murder and other violent offenses who are out on the bracelet and they are very successful. They are coming to court. They are not re-offending. There are other ways to monitor people.
Again, it will always be that balancing act, public safety versus the constitutional rights of the clients who are charged, but they have not been proven guilty beyond a reasonable doubt and they are presumed innocent. And you cannot have everybody who has ever been convicted of anything wear a scarlet letter their whole lives. You just can’t. That’s not the way our society is.
Maybe we should be like the Philippines. We could be like the Philippines and have Duterte. He is just shooting drug dealers, right? He lines them up on a wall and shoots them. Is that what we are going to be, without a trial, without anything, because the police say he is a drug dealer? I mean what is he doing now in the Philippines? He is taking away all their civil rights. He is telling people if you are out on the streets, not only are you going to be arrested, but he has told his police officers shoot them, shoot people who are not following the order to stay home, that’s the extreme?
But trust me, you take a little, you give a little, you give a little up, you give a little up and that’s what happens, right? We have to look at history, like you said Jonathan. We have to look at every time there has been a war, every time we have had the Spanish Influenza, right, which killed 20-50 million people back in 1918. They took away everybody’s civil rights, right, that’s what they do; that’s not what we do.
We have got to learn from our mistakes. We cannot take away people’s rights. And one of the most important rights, besides having a counsel, besides having a lawyer, if the government is going to lock you up and put you away, is to a public and speedy trial. You have got to bring me to trial.
Chastidy Burns: To be optimistic, I think that one good thing that’s going to come out of this is that we are starting an important conversation about the nature of some of these charges and whether or not they really do warrant incarceration and that’s just clear based on the success that our office has had with these bond hearings. I think that judges and stakeholders will take a closer look at that after all of this is said and done.
Jon Amarilio: And that’s probably a perfect place to take a quick break and transition into our next segment. We will be right back.
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Jon Amarilio: And we are back. So Amy, before we took a break you were answering my question about the constitutional implications of the pandemic and the court shutdown. And one of the things that you were discussing is how we can’t just incarcerate people or hold them in jail rather pending trial indefinitely.
And it occurred to me as you were talking about that that there is a certain amount of risk weighing that has to go into that determination. We can’t just let everyone go because they are not getting a trial right away, because that would endanger the public as well, but at the same time we have to guard individual’s constitutional rights, which is always part of the mix whenever we are discussing these kinds of rights.
Can you speak a little bit more toward that? Who would make that kind of determination? Would it be made on an individual basis with each defendant or do you see broad policy decisions being made by the courts?
Amy P. Campanelli: Well, if March 23rd is any example of what happened; I tried to have Judge Martin make broad policy decisions, but he wouldn’t. He wanted cases to be heard individually by the judges where those clients are pending, and I believe that that would be the same here, that there wouldn’t be a broad policy decision that if we can’t bring you to trial, we are going to let this certain category of people go.
I think the circuit court has sort of stated. Certainly Judge Evans has not made any statement in that regard, but I think that individually they would look at each client and say look, let’s weigh the public safety risk with the client’s constitutional right to be brought to trial and to be proven guilty beyond a reasonable doubt. I think it would be done on an individual basis. I would prefer it to be done in a policy matter, but that’s how I think it would be done.
Chastidy Burns: Amy, we also mentioned the right to counsel and when we are talking about the bond hearings and what’s happening in court, it’s obviously a big part of our job working from home to communicate with the clients and their families about what is happening. What guidance are you giving to your assistant public defenders as far as how to explain these difficult decisions and why their loved ones might not be getting out of custody, because obviously their right to counsel has a lot to do with being in contact with their attorneys and having things explained to them?
Amy P. Campanelli: So the lawyers are contacting their clients through phone calls and letters and we are setting up other ways for the clients’ calls to be forwarded to the lawyers at their home so they can get those calls in real time and actually talk to their clients. And many family members are calling us. I have had many conversations through email and phones with family members who are trying to get loved ones out because of the pandemic.
So there is a lot of communication and we are just explaining to people what the situation is. You know, that we have gone to the Judge or we will be going to the Judge, we’re filing a bond hearing and we’re asking for your release, and then other clients who are in jail on more serious charges like first-degree homicide, or attempt murder or some type of sexual assault, we aren’t necessarily going to the Judge and asking for their release. The lawyer is looking at the case and seeing if they have mitigation to present to the judges for their release.
You know, each case is being determined individually by that lawyer who represents that client, but we are trying to get out as many people as we can safely. We also have a plan for these clients when they release. We’re working with several people on the street, task the Community Bond Fund, the National Bail Project, to help us follow the clients, make sure they get home, make sure they have resources when they are at home. Make sure they know what COVID-19 is about. We don’t even know what kind of information they’re getting if they’re in custody. Do they know how to protect themselves? Do they know what they should be doing? Do they know about sanitation? I mean, they do, but we don’t know what they know.
So we have help on the outside to make sure that clients are transitioning home safely and that they are notified of their next court date, that they know when to come back to court. So there is communication.
Chastidy Burns: And how’s that experience been working with other actors like the State’s Attorney’s Office, the Clerk’s Office, especially the Community Bond Fund, which I think has been a great partner to our office lately?
Amy P. Campanelli: Yeah, so the National Bail Project, we have sent them list of people and the Community Bond Fund to help us get those clients released who we weren’t successful at a bail motion and they have cash bail.
So we have a lot of clients who are still sitting in the Cook County Jail and they have to post whether it’s $1,000, $2,000, $3,000, the National Bail Project and the Community Bond Fund, they are stepping up to help post the money for those clients, and then they are an extra resource for that client. They make sure the client knows when to come to court. They help the client get transportation if they need for the next court date. So those obviously relationships are so important and there are other advocates too we’re working behind the scenes including the Justice Advisory Council from the President, from President Preckwinkle’s office. Many other people are helping us so that our clients are safely returned.
Chastidy Burns: Right, and I know that many of us are also trying to handle as best we can our clients who do have mental health issues. Can you talk a little bit about how, for example, the behavioral clinical examination process has changed during the pandemic?
Jon Amarilio: Maybe first explain what that is for our audience?
Amy P. Campanelli: Right. So if a client presents themselves to the lawyer as not understanding what’s going on, they are incompetent so to speak. They don’t understand the charges, they don’t understand what a Judge is, or what a Trial is, the lawyer then asks for a fitness examination. Whether that client is fit to stand trial, can the prosecutor actually try that person if they don’t understand what a Trial is? So that’s a fitness examination.
Right now, the Forensic Clinical Services over at the felony courthouse is closed. They are not doing any fitness examinations, and Elgin Mental Health Center where a lot of our clients go, once they’ve been found unfit by a Judge, they go to the Elgin Mental Health Center, obviously out in Elgin, Illinois to be restored to fitness. I have clients at Elgin right now who have been restored and they’re just sitting. They are just waiting there, we could maybe dispose of their case. So — but they can’t be transported back to. They were in custody to the Cook County Jail because they’re not able to — that’s been suspended too.
So I do have my Chief of my Felony Trial Division, Marc Stahl. He is working on these issues to see if we can get some of those clients virtually to get those cases to continue on, to keep going. The clients who are suffering from mental health issues, they were unfit for Trial, they didn’t understand, but now they do, and so they understand what a plea is, they can plead guilty, they can plead not guilty. They can ask for a Trial. We’re trying to get those cases moving along. The same way we would move any case that might be right for a plea.
Jon Amarilio: So speaking of moving along, Amy, let’s talk about the immediate and then perhaps the longer-term, emerging from the pandemic, the resumption of normalcy or something like it. I’m curious as to what you see is the challenges of that process. How are we going to restart the engine essentially? Do you think that we’re going to do it progressively in stages? Do you think that if the cloud is clear, we’ll be able to do it all at once and everything will be back the way it was? How do you see that playing out?
Amy P. Campanelli: Well, I think that we easily can go non-virtual anymore. Everybody just shows up, right? People come back to their offices, the judges go back on the bench, the clients get transported back to the suburbs or to 26th Street if they are in custody. People on bond have their court dates. What I am concerned about mostly is clients getting warrants, because I remember after 9/11 there was a lot of confusion with the court system out there in New York and people didn’t have the right court dates and they were coming on the wrong day and warrants were being issued for clients.
So we have to give people a chance. If they don’t show up to their court date, we have to make sure that we allow my lawyers or private attorneys to be able to try and contact those clients and not issue warrants, give them another chance to come back to court.
I’m concerned about that. I am very concerned because once there is a warrant issue then the police can go up and pick you up and now you’re in custody on that warrant. When you just had the wrong court date, there was confusion. I mean, there is a lot of confusion here. Even though there is signs up at the courthouses, these are the next court dates if your case was up today, come back to court on this day.
But now we’ve moved to the courts. We’ve moved all the branch courts to 26th Street. I was going to 111th in State, now let’s go to 26th Street. So on my next court date, where do I go? Am I supposed to go to 26th Street, I might show up at 26th Street feet when actually 111th was reopened or 00:30:55. There’s going to be a lot of confusion, so that is my biggest worry and the judges have got to allow for that and make sure that, people, you’re not just going to start issuing awards and locking people up who had no intention of missing their court dates. So I am very concerned about that.
Jon Amarilio: If we were to game it out a little, not around the best case scenario but kind of an intermediate case scenario where things started reopening progressively either because a vaccine was slowly rolled out or because herd immunity was developing and we felt more comfortable for some people to get back in the community but not others. It occurs to me that one way to balance the speedy trial, the constitutional speedy trial concerns that you were talking about before with that kind of reality would be perhaps the advent of something like a virtual jury.
Do you think that is realistic before you were speaking about the challenges of doing that with bond court, how judges who are experienced find it easier to essentially lack sympathy or empathy with the person who is virtually standing in front of them?
Do you think virtual juries are a potential reality, and if so, how do you see those playing out?
Amy P. Campanelli: I hope not. I would fight against that forever. You cannot have a jury trial where the Jury does not see the witnesses, the Jury does not see the client, the Jury does not see the Prosecutor and the Defense Attorney and the Judge making the decisions.
Jon Amarilio: In-person, you mean?
Amy P. Campanelli: In-person, and the jurors have to see each other. They go back to the Jury Room. They listen to evidence. You have to judge the credibility of everybody who testifies from the witness stand. You cannot do that virtually. There is no way you can actually see I believe someone’s movements, their eye contact with the Prosecutor or the Defense Attorney, those are all things that are judged by credibility. The credibility of every witness obviously whenever you take a witness stand.
Chastidy Burns: And in a short term, assuming that the pandemic does stretch on and that we don’t have a vaccine within the next several months, do you see pleas happening virtually?
Amy P. Campanelli: Again, I do not think that under the Sixth Amendment that that is constitutional. The Judge has got to see the client in front of them during a plea and things happen during a plea that you don’t count on. It’s not always just agreed and it goes smoothly. So the client and the lawyer have to be together during a plea and how do you do that virtually? Do I have two lawyers there? Do I have one lawyer sitting with the client, where the client is on a computer screen and then another lawyer in the courtroom? Because I don’t want the prosecutor to have any leg-up like if — I just don’t know how we would do that? I really think that the Sixth Amendment requires that people be in-person. You have a right to be seen and just so I’ve been fighting with Tom Dart for — before I was Public Defender, I’m in my fifth year as Public Defender. I was fighting with him and his staff who wanted to do court dates virtually, write status dates. As if they are nothing. As if it means nothing to have a client not come to court and stand before a Judge, and they tried to say that they do that in Federal Court and we went to Federal Court, and of course, they don’t do that in Federal Court. They’ve never done that in Federal Court for a criminal client.
For a criminal client who might have a civil case pending that’s dealing with money, yes, they might do a virtual hearing if they’re locked up at the MCC or something or at a federal prison. But the client has to be standing before that Judge. The client’s life is at stake. We are talking about everything that client holds dear, and the most people hold dear is our liberty, right? And when you’re going to take someone’s liberty and put them in a cage for the rest of their lives, or for a long period of time, you got to be looking at that person. You got to look that person in the eye, their family members come to court so they can see what’s happening. Emotion is very high during pleas, during trials. There’s no difference. You’re still talking about taking someone’s liberty sometimes.
So not always, right? But, even if you’re on probation, you’re still going to be expected to report to a probation officer and have all these conditions and if you violate the probation then your liberties at stake, so these are huge consequences whether it’s a plea or a bench trial or a jury trial.
I would not agree to do any of them virtually. There’s got to be a way where we can make those spaces safe with masks and whatever, gloves, we can do it and we will have to do it.
Chastidy Burns: So, Amy, have there been any changes that you think are positive that we would actually want to see continue, and I have one example, filing things with the clerk’s office virtually has actually been good. What do you think about that?
Amy P. Campanelli: Yeah. I think the Clerk’s Office is getting up to speed, so everything can be e-filed. So people don’t have their —
Jon Amarilio: Wait, wait, wait, wait.
Amy P. Campanelli: Yeah.
Jon Amarilio: You’re not suggesting that we move away from carbon paper in 2020, are you?
Amy P. Campanelli: Yeah, exactly. So we can do it. We have to help the Clerk’s Office get up to speed so that we can file everything virtually, and also I believe my lawyers talking to their clients who are in custody at the jail or in the penitentiary by video is a great thing.
Chastidy Burns: That would be so incredible.
Amy P. Campanelli: Yeah, it’s not a substitute for in-person.
Chastidy Burns: No.
Amy P. Campanelli: My lawyers including you, Chasdity. I expect to go to the jail and talk to your clients or go to the penitentiary and meet with your clients face-to-face because that’s how you build a relationship.
I always say to anybody who does what we do, lawyers who have clients, especially those in the criminal field. The only reason you’re doing the job is because you have clients, right? There’s no reason to be a Public Defender if you don’t like clients and you don’t want to deal with clients; go do something else, go sit at a desk and write contracts then if you don’t want to have human interaction; that’s not this job. This job is face-to-face with a client, listening to a client, understanding a client, gauging their client’s mental health, right? Like we talked about, is this client fit?
You can’t do that unless you are having a conversation with their client, multiple conversations face-to-face, but for those short conversations and where you want to keep the client updated about maybe you were just in court and the client had to be whisked away because you had ten other cases that day, you go back to your office, you get on your screen and you zoom that client from jail and you say, look, I wasn’t able to talk to you after you laughed but here’s what happened in court today. This is why we got a continuance date, let me tell you what the prosecutor gave me today, he gave me some discovery, he gave me some police reports, some lab reports. So those kind of conversations with your clients, definitely I agree should be done virtually. I am hopeful that that in addition to the in-person communication with your client will be wonderful for the attorney-client relationship.
Chastidy Burns: Yeah.
Jon Amarilio: And that’s probably a great place for us to take our second break. We’ll be right back.
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And we’re back. So, Amy, we close each podcast with a game we call Stranger than Legal Fiction. The rules are simple. Chasdity and I have both done a little research. We found one strange law that is still on the books somewhere in the world but probably shouldn’t be. We’ve made another one up and we’re going to pull you and each other to distinguish who if anyone can distinguish strange legal fact from fiction. Are you ready to play?
Amy P. Campanelli: I’m ready.
Jon Amarilio: All right, Chastidy, why don’t you lead us off?
Chastidy Burns: Okay. So first, in Massachusetts you will never hear just half of the Star-Spangled Banner. Singing or playing only part of the national anthem or remixing it as a dance song is punishable by a fine of not more than $100, and then the second one is that in New York, parking a red car more than eight inches away from the curb when it’s foggy is a misdemeanor offense punishable by six months in jail.
Jon Amarilio: Ooh. Amy, you are the guest. What do you think?
Amy P. Campanelli: Wow. I’m going to have to say the fiction is the red car.
Chastidy Burns: That’s true. I made that one up.
Amy P. Campanelli: Yes.
Jon Amarilio: I didn’t even get to guess.
Amy P. Campanelli: Oh, I am sorry. I thought I was supposed to get. I was supposed to get it right.
Jon Amarilio: No, no, you were Amy.
Amy P. Campanelli: Okay, good.
Jon Amarilio: Chastidy, shot the gun. Alright, well then I guess I agree.
Amy P. Campanelli: Yeah, the Star-Spangled Banner is so precious that I figured that would be something on the books.
Jon Amarilio: But how is that not a First Amendment violation?
Amy P. Campanelli: Well, it is now, when was that law written, and it’s still on the — I mean —
Jon Amarilio: On the Civil War.
Amy P. Campanelli: Yeah, so it’s not prosecuted obviously, but people think different things at different times, right?
Chastidy Burns: Yeah.
Amy P. Campanelli: Thank you, that was great.
Jon Amarilio: Alright, I’m up and I’m actually going to wait for you to answer, Chastidy.
Chastidy Burns: Okay, thanks.
Jon Amarilio: So you get to play the game.
Chastidy Burns: Okay.
Jon Amarilio: Alright, option number one. In Delaware, you can have your marriage annulled if it was entered into as part of a dare or even a double dare, that’s option number one. Option number two, in Iowa, it’s illegal to operate a cow while intoxicated.
Amy, what do you think, which is real?
Amy P. Campanelli: I think the cow is fiction.
Jon Amarilio: Why?
Amy P. Campanelli: I don’t know. It just sounded not — I think in Delaware there are — there could be a lot of laws like the one you described. I don’t know, I just think that one sounded better more like fact. They are both sort of strange.
Jon Amarilio: There’s a lot to be said for legal instinct. Chastidy, what do you think?
Amy P. Campanelli: I think the cow one is real.
Jon Amarilio: Why is that?
Amy P. Campanelli: They have a lot of cows in Iowa, right? It sounds like they would need to address operating the 00:42:10.
Jon Amarilio: So there is a reason why Amy is your boss, her instincts are excellent, the Delaware law is real Section 1506 Title 13 of Delaware’s Domestic Relations Code. The Iowa law is fake, however it is still the law in the United Kingdom under the Licensing Act of 1872. I just picked Iowa because I thought people would associate cows with Iowa.
Chastidy Burns: And I did.
Jon Amarilio: And Chastidy you walked right in there.
Amy P. Campanelli: No, that was good. Yeah.
Jon Amarilio: Alright, and that’s going to be our show for today. I want to thank our guests, Cook County Public Defender Amy Campanelli for this interesting and important conversation. Thank you Amy for all the good work you and your attorneys do in the public interest.
Amy P. Campanelli: Thank you.
Jon Amarilio: I also want to thank my co-host, Chastidy Burns, our Executive Producer Jen Byrne, the CBA, and everyone at the Legal Talk Network. All of whom are doing a remarkable job in challenging times.
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