New law addresses massive backlog in Kansas courts
WICHITA, Kan. (KWCH) - The COVID-19 pandemic has left Kansas courts with a lot of catching up to do when it comes to jury trials. It’s created a massive backlog of cases, by a legislative estimate, topping 5,000 cases. New legislation signed into law Tuesday in Kansas is meant to address the problem.
In Sedgwick County, it has not been a quiet year in county courtrooms.
“We’ve been open for business. We’ve done everything we can possibly do in terms of resolving cases and holding hearings,” Sedgwick County District Attorney Marc Bennett said.
While arraignments, plea agreements, sentencing and probation hearings have moved forward with about 1,900 cases resolved last year in Sedgwick County, Bennett said across Kansas, what’s ground to a halt are jury trials.
“There’s no substitute for that. You can’t do it by Zoom; you can’t do it by conference call,” he said. “We have to be in a courtroom, and for the last year, that’s been an impossibility.”
That’s created a serious backlog of cases. Bennett said in Sedgwick County, there are about 2,000 cases in various stages of the legal process. A new Kansas law is meant to allow the legal system to catch up.
“This statute allows two years to get this resolved, and I think once we get back online in a more formalized courthouse-wide way, then the cases will start to flow,” Bennett said. “We’ll get back to the normal course of business, and cases will get resolved that were maybe waiting to see what happens. Attorneys are going to be in a better position to see their clients again now that they’ve gotten their shots, and they’ll be more willing to go to the jail to see their clients in provis. The whole system is going to start working again.”
The legislation suspends the state’s statutory right to a speedy trial through May 1, 2023. That suspension was put in place last year at the start of the pandemic and was set to expire Wednesday, March 31, 2021.
“This has nothing, nothing to do with Constitutional rights. Your Constitutional right to a speedy trial always exists. This could not change it, if I wanted that to take place. It’s simply that in Kansas, we add a specific date, 150 days if you’re in custody, 180 if you’re out of custody.” Bennett said, “150, 180 is not found in the constitution; it simply says a speedy trial. Whether or not it’s speedy or not is determined by a multitude of factors. Kansas simply has this statue that says we’re just going to set an arbitrary number, and that’s number. You’ve got to get it done by then.”
Bennett said if speedy trial rights weren’t suspended and a defendant asked for one, but their case couldn’t be tried in that timeframe, the case would be dismissed with prejudice.
Bennett said, “The case is dismissed with prejudice never to be refiled, and I’m not complaining about it. That’s just the system we’re in. It is an unforgiving system. This allows us to have enough breathing room to make sure that we can seek justice, defendants have a right to their due process and victims in the community aren’t forgotten in the process as well.”
That time is very much needed because Bennett said logistically there’s no way to complete cases for clients seeking a speedy trial in such a tight window.
“There’s no way to call these cases that have been waiting for their jury in 150 or 180 days,” he said. “We only have 10 criminal judges, even if every divorce was put on hold, every civil case was put on hold, all the judges just did criminal jury trials, I still have to have jurors. I still have to have a place to put them all. How are we to get all these citizens to come through the courthouse doors in the six months. It’s just not realistic.”
Bennett said the bill is a product of talks between the state’s defense attorney and prosecutors officers. More recently, Bennett met with local members of the defense bar, public defenders offices and other attorneys to determine how to best move forward in the 18th Judicial District.
“We’ve come up with a plan we’ve given to the judges, which they’re going to be reviewing this week in terms of here’s how we think this could work better and work together,” he said.
Bennett said Sedgwick County has been fortunate, resuming a limited number of jury trials last September with a handful of courtrooms with plexiglass and other safety measures. But that hasn’t been without its challenges.
“We’ve been trying cases since September. Frankly, I’m not aware of another jurisdiction in the state and very few in the country that have been trying cases since September. We have,” Bennett said.
Another issue that brings up is seating a jury. Bennett said in murder trials, there are about 50 people brought in to be potential jurors before they find the 12 they need. With the backlog, it could mean thousands of people are summoned. With COVID-19, it could also mean seating more alternates.
He added, “Two weeks ago, we tried to try, started a murder trial. After the first day, one of the jurors said, ‘I don’t think I feel very good.’ Went home and didn’t come back the next day. So we got ahold of him, and turned out, he said he had COVID symptoms. We’re making sure he wasn’t just trying to get out of it, so he went and got tested, and in fact, he had COVID.”
Bennett said this is an issue for counties large and small in different ways. Sedgwick County’s main concern is the caseload. In smaller counties it is access to a judge, as in less populous judicial districts in the state, a judge splits their time between multiple counties.
“If you are a practitioner in Smith County, and I use that as an example because Tabatha, the county prosecutor up there is a friend of mine, and she talked about jurisdiction. The District Court judges in Smith County are on a circuit. We don’t call them circuit court judges anymore, but they in different counties on any given day. She may not see her district court judge but once a week or two or three times a month. Over the course of a year, she may have access to that judge on a finite number of times, and that is her judge.” Bennett said, “The rest of the time, it’s a magistrate, and magistrates aren’t authorized to do jury trials typically.”
Bennett said the availability of COVID-19 vaccines would help with this process.
“Get this done in a rational approach to it instead of Katy bar the door and try to squeeze everything in,” he said.
For Bennett, this also points to something that’s been developing for some time, a need to look at the state’s speedy trial statute.
“I think both sides recognized the statute as it’s written is somewhat antiquated, even if none of this had happened.” Bennett said, “Even if COVID had never taken place, the statute deserves a second look, and it’s time to figure out a way to make it more of a functioning speedy trial statute.”
Sedgwick County’s 18th Judicial District Court said it’s in the process of outfitting all 15 of its criminal and civil courtrooms with plexiglass dividers and other safety measures. Three courtrooms had previously been outfitted, two for criminal court and one for civil.
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