Wisconsin courts flooded with jury trials after pandemic year, slowing resolutions for defendants
The jury box of the branch one courtroom at the Shawano County Courthouse. (Henry Redman | Wisconsin Examiner)
As Wisconsin’s circuit courts return to normal operations, attorneys from across the state are worried about a massive backlog of cases and jury trials that have built up over the last year and a half while courts were mostly virtual due to the pandemic.
The backlog threatens to further slow the whole system down, making it hard for public defender’s offices to assign lawyers to defendants, prosecutors to balance the caseload and leaving defendants waiting for months for their cases to be resolved.
Every county in the state has started to regularly hold jury trials again, but about half are still operating under modified conditions and health restrictions, according to the spokesman at the State Courts Office. Plus, in addition to new cases that are continuously coming into the system, county courts have to work through old cases that have been sitting for the last year.
Even as the court system was able to hold many hearings virtually over the last year, jury trials need to be held in person and it’s hard to pack a pool of 12 jurors — even more during jury selection — into a small room during a pandemic of an airborne virus.
“All of the circuit courts in Wisconsin are fully open and holding jury trials. Some counties have some health-related safety restrictions in place, and each county has its own set of circumstances,” Tom Sheehan, the Wisconsin Court System’s information officer, says. “The Director of State Courts Office is providing support to make sure each county has the tools it needs to address any potential backlog as effectively as possible. This has been true since the start of the pandemic, when Court Operations, CCAP and District Court Administrators provided operational and technical support for Zoom proceedings.”
It’s hard to get data on how severe the backlog is. For one, just because a trial is scheduled doesn’t mean it’s actually going to happen. Often attorneys and judges will schedule a trial just to encourage the prosecution and defense to come together and work out a plea deal. Also, each county court system opened at different times and is in charge of its own case scheduling.
In Milwaukee County — the state’s largest circuit court — it could take two to three years to clear the pandemic-caused backlog, according to Adam Plotkin, legislative liaison for the Wisconsin Public Defender’s Office.
“Everyone, everything moved just a little bit slower,” Plotkin says. “When you’re talking about tens of thousands of cases a year, we usually make 120,000 appointments a year. When everything moves a little bit slower, things stack up, they don’t resolve and, particularly for our private bar partners, they don’t want to accept new cases until old ones resolve.”
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Outagamie County defense attorney Tim Hogan says that in the counties he works in, the decision to come back to jury trials was vastly different. He says Brown County was quickly holding four or five trials a week while Outagamie was still citing COVID concerns as a reason not to hold trials.
But anecdotally, attorneys are seeing a flood of jury trials in the first half of 2021 and the delay is still affecting the thousands of people who have been charged with crimes and are still awaiting a resolution.
“Obviously it’s a big concern,” Plotkin says. “Each individual case is going to be different. Someone whose case is pending for 18 months but they’re out of custody, that’s a different ball of wax than somebody in custody. Obviously the priority is people in custody but we want everyone to get their day in court.”
Some of the problem, according to Hogan, stems from prosecutors putting off resolutions over the last year because of all the uncertainty.
“I think for a while there, summer through the fall and into the winter, everyone didn’t know how long this was going to last,” Hogan says. “Why try to resolve it? We know it’s not going to trial any time soon.”
Without that pressure point of a pending trial to force the sides to come together, cases have gotten stuck, according to Plotkin.
“Part of the problem is the lack of pressure of jury trials, it forces the conversation on a potential plea agreement,” he says. “Without that pressure point in the system, things have just languished.”
Hogan thinks another factor is that in some cases defendants are more likely to take a case all the way to trial because they weren’t fighting charges from the county jail. Courts across the country were more likely to release someone pre-trial so as to not overcrowd jails and create even worse conditions for spreading COVID-19, so defendants are fighting charges without the added pressure of just wanting to get out of custody.
“A lot of defendants want to plead out to get out of custody,” Hogan says. “A lot of these out of custody cases people realize they’re out so we can fight our charges better. That might be why more trials are being scheduled.”
The issue isn’t just Wisconsin’s courts. Victor Plantinga, an attorney who works mostly in the federal court system, says a number of factors have contributed to a backlog of federal cases. For one, the U.S. Marshall’s Service wasn’t transporting defendants for much of the last year, which slows everything down on top of trials being cancelled.
“That really bogged things down,” Plantinga says. “Of course you have the jury trials that weren’t happening. They’re just starting to open up in the federal courts, the backlog is huge. There’s so many cases log-jammed.”
But aside from the challenges caused by the backlog and the real effects it will have on people in the system, Plotkin says it will be just as hard to clear it.
“Obviously we have a finite amount of resources as it is,” he says. “Even if we were able to locate additional funds through [the American Rescue Plan Act] funding or some other source. Additional staffing for the next two years would be wonderful but there’s limited facilities. There’s only so many jury trials you can have at once. I think the logistics are as daunting as the people waiting for their day in court.”
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