Two Cities Took Different Approaches to Pandemic Court Closures – They Got Different Results

by Alec MacGillis

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On Dec. 31, 2020, a 40-year-old man named Leon Casiquito walked into Kelly Liquors on Route 66 in Albuquerque and tried to shoplift a bottle of tequila. When one of the owners, Danny Choi, tried to stop him, Casiquito flashed a small pocketknife. Choi told police he knocked the bottle out of Casiquito’s hand with a stick and Casiquito left the store.

Choi locked the door, but Casiquito hung around in the parking lot, shouting that he was going to beat up the store’s employees. One of them called the police, and soon four officers arrived and wrestled Casiquito to the ground. He was charged with armed robbery and aggravated assault with a deadly weapon — despite not actually attacking anyone with the pocketknife — and held without bail at the Metropolitan Detention Center in Albuquerque.

Casiquito had had similar run-ins with law enforcement before, mostly related to his troubles with alcohol and drugs. Those problems, his family believes, may have started with the pills he was prescribed in his teens after he was hit by a car while riding a four-wheeler and thrown 30 feet, putting him into a coma for a few days. At 30, he suffered another accident: a car hit him while he was out walking, breaking both his legs and requiring more pain medication. By the time of his 2020 arrest, his family thought that a brief sojourn in jail — which is what someone in Casiquito’s situation could expect under normal circumstances — might help him get himself clean.

But these were not normal circumstances. Like many states, New Mexico had drastically curtailed the operation of its courts in response to the pandemic. Some civil trials and preliminary hearings for criminal matters moved online, but actual criminal trials needed to be conducted in person in front of juries. Bernalillo County, which includes Albuquerque, suspended such trials for much of 2020 and 2021. Meanwhile, new cases kept pouring in, partly as a result of the surge in violent crime that accompanied the pandemic. The nation’s homicide rate rose by nearly 30% in 2020 and another 5% in 2021, essentially erasing two decades’ worth of declines in deadly violence.

Criminologists have offered several explanations for the increase, including the rise in gun sales early in the pandemic, changes in police behavior following the protests over the murder of George Floyd, and the social disruptions caused by closures of schools and interruptions in social services. But many people who work in criminal justice are zeroing in on another possible factor: the extended shutdown of so much of the court system, the institution at the heart of public order.

This could have led to more violence in a number of ways. Prosecutors confronted with a growing volume of cases decided not to take action against certain suspects, who went on to commit other crimes. Victims or witnesses became less willing to testify as time passed and their memories of events grew foggy, weakening cases against perpetrators. Suspects were denied substance-abuse treatment or other services that they would normally have accessed through the criminal justice system, with dangerous consequences.

Above all, experts say, the shutdowns undermined the promise that crimes would be promptly punished. The theory that “swift, certain and fair” consequences deter crimes is credited to the late criminologist Mark Kleiman. The idea is that it’s the speed of repercussions, rather than their severity, that matters most. By putting the justice system on hold for so long, many jurisdictions weakened that effect. In some cases, people were left to seek street justice in the absence of institutional justice. As Reygan Cunningham, a senior partner at the California Partnership for Safe Communities, put it, closing courts sent “a message that there are no consequences, and there is no help.”

Many courts around the country still aren’t operating at full capacity, and law-and-order types aren’t the only ones concerned. Defense attorneys and members of the progressive prosecutor movement are worried too. The Sixth Amendment guarantees defendants a speedy trial, but many have been sitting in jail for months on end. “A lot of the Constitution has been kind of glossed over,” Doug Wilber, a public defender in Albuquerque, told me.

The link between any one instance of violence and courtroom delays can be hard to prove. But sometimes it couldn’t be more obvious.

Leon Casiquito’s case had been categorized as “track one,” meaning it was supposed to be heard within six months. But by the time that deadline rolled around in spring of 2021, Bernalillo County had fallen far behind schedule. The Second Judicial District Court had held 86 criminal jury trials in 2019. In 2020, that tally plunged to 18.

Casiquito had spent almost six months in jail when, on June 29, 2021, a district judge issued an order postponing his case indefinitely. During daily calls to his mother, he described how jail conditions were worsening. The inmate population was growing and the jail was short on staff. Inmates were frequently placed on lockdown — confined to their cells for virtually the entire day.

Casiquito was spending all that time locked in with his cellmate, Telea Lui, who had schizophrenia and had been charged with aggravated battery after attacking his mother with a 20-pound dumbbell. On the evening of Oct. 25, Lui flew into a rage, punching and kicking Casiquito for such a long time — more than 20 minutes — that, as Lui later told officers, he had to pause to catch his breath and get a drink of water. Inmates in nearby cells called for help, but no guards were nearby. By the time corrections officers finally entered the cell, Casiquito was not breathing and had “severe trauma” to the head. They pronounced him dead shortly afterward.

(Lui’s lawyer would later state that Lui was defending himself against Casiquito, who he said “hitting him in the legs in a nagging manner.” Lui has since been found dangerous and incompetent to stand trial and has been referred to a state psychiatric hospital.)

It had been nearly 10 months since Casiquito was arrested for trying to steal a bottle of tequila with a pocketknife. His death was one of 116 homicides in Albuquerque in 2021, by far the most the city had ever recorded in a single year.

Six hundred miles east of Albuquerque, in Wichita, Kansas, authorities had worried from early in the pandemic about the effect of closing courtrooms. They decided to do something about it.

Violence had surged in the spring and early summer of 2020, as it had in so many other cities. Wichita police saw a sharp rise in drive-by shootings. And officials noticed something else, said then-police chief Gordon Ramsay: Many suspects arrested in the shootings were defiant, suggesting that nothing would come of the charges against them because the pandemic had shut down most of the court system. Defendants were, as a result, disinclined to take a plea deal. Why plead guilty to avoid a trial when there were no trials happening anyway?

Ramsay contacted the Sedgwick County district attorney and others about the need to get the system back on track as soon as possible. He found allies in the county’s chief judge, Jeffrey Goering, and in Kevin O’Connor, the presiding judge of the court’s criminal department.

“The option of just having cases pile up in high-volume dockets was not an option at all,” Goering told me. “If that meant thinking outside the box, that’s what it meant.”

After consultations with the county health director, the county courthouse resumed jury trials in July 2020, just four months after having suspended them. It got creative. It spent more than $30,000 to outfit its two largest courtrooms with plexiglass dividers and set up a big tent outside. At first, it called only less serious cases, because lawyers got fewer peremptory strikes to use in jury selection for those cases, which meant that juries could be selected from smaller candidate pools.

Wichita judges were adamant that the move to reopen was not intended as some sort of political statement — prioritizing prosecutions over public health. Goering himself hardly fits the red-state law-and-order stereotype: He studied philosophy in college and has decorated his chambers with homages to Jimi Hendrix and Janis Joplin. With his beard and shaggy hair, he bears an uncanny resemblance to his cinematic hero, The Dude from “The Big Lebowski.” Getting trials going again was a pure civic reflex, he told me. “I took the opinion that the cost to society was greater from the consequences of not moving these cases and keeping the courtroom locked down too long than from an outbreak of COVID,” he said.

Goering and O’Connor tried to make the restart as palatable as possible. Judges with health concerns were exempted from jury trials. Citizens called for jury duty were told they could opt out if they had concerns about catching the coronavirus. O’Connor gave a local hospital administrator his cellphone number in case any hospital staff were called as potential jurors, saying that he would make sure to waive them.

These steps raised a different concern among some defense lawyers, that the jurors would be pandemic-dismissing hang-’em-high types. But that turned out not to be the case. The initial batch of cases resulted in an unusually high rate of acquittals. “I don’t have any problem with any of these juries,” a defense lawyer, Bradley Sylvester, who worked on some of those cases, told me. “I had a lot of faith in the jury system.”

There were wrinkles to iron out. Some lawyers asked for and received exceptions to the courtroom mask mandate during jury selection, so they could see potential jurors’ faces as they answered questions. The plexiglass could be tricky to see through if the light hit it at certain angles. One juror had to be replaced after he tested positive for COVID-19. But the judges said they knew of no serious illnesses traced to the court.

By the end of 2020, homicides were up sharply in Wichita, as elsewhere, thanks in large part to the early-summer shooting spike that had motivated the court reopening. But the court was ready to process those cases. In January 2021 it expanded its list of jury trials to include murder cases and other major felonies. Overall, it managed to hold 32 criminal jury trials in 2020, compared with 75 in 2019 — a much smaller drop than the ones in Albuquerque and other cities. “It’s important for the community to see the courts functioning,” said O’Connor. And in Wichita, they did.

Albuquerque had struggled with court backlogs and jail overcrowding long before the pandemic. In the mid-1990s, inmates at the city’s Metropolitan Detention Center filed a federal class-action lawsuit over the crowded conditions, and it remained in litigation for two decades before being settled.

In 2019, the district attorney’s office had put out a glossy report that stressed the importance of accelerating the workings of the criminal-justice system. “Speed is the best deterrent,” the report stated. “Through continually improved processes to swiftly intervene by initiating cases quickly, we are seeing a sustained drop in crime.” Accompanying this was a graph showing a sharp decline in overall crime since 2017.

But then came the pandemic and the courthouse closures. The New Mexico Supreme Court suspended jury trials from March to July 2020, restarted them with strict limits that summer, then shut them down again from November 2020 to February 2021. Instead of grand juries, the district attorney’s office had to rely on preliminary hearings, held largely online, to initiate cases. This complicated matters, because New Mexico’s stricter evidentiary rules for such hearings meant that lawyers had to get defendants and witnesses to show up, almost like a mini trial. In many instances they didn’t, making it impossible to move forward. The number of new cases fell dramatically. In 2019, the county initiated about 4,300 cases; in 2020 and 2021, the number plunged to about 2,700 and 2,600, respectively. And very few of these made it to trial. Last year, the resumption of court operations happened so haltingly that the county held only 29 criminal jury trials — two-thirds less than in 2019.

For Adolfo Mendez, the chief of policy and planning for the district attorney’s office, the consequence of this falloff was plain. A person charged with a crime, he told me, “doesn’t see any consequence of it. They’re released back into the community.”

In Albuquerque, as elsewhere, the new constraints worried defense lawyers too. Wilber, the public defender, was concerned about the “dehumanizing” effect of defendants having to appear remotely, over Zoom, for their preliminary examinations or detention hearings. When defendants appeared on a video feed from jail, he feared, judges were more inclined to keep them there. “It’s human nature: It’s easy to remain with the default,” he told me. “They’re already sitting in jail, so why not just stay there?”

Wilber also worried about how COVID-19 restrictions limited defendants’ access to their lawyers, and that the backlogs were giving judges and prosecutors an excuse to push past due-process protections once cases finally did get to the front of the line, to keep things moving as fast as possible. “At first, it was about safety and public health,” he said of the backlog, “but from our angle, it started to feel like an excuse, an easy way to do away with a lot of protections.”

Meanwhile, defense lawyers were hearing from their clients about the worsening conditions at the jail. Reporting bythe Albuquerque Journal revealed just how dire things had become. By late 2021, the jail was short about 150 officers, a vacancy rate of more than 30%. (The jail’s then-chief told the Journal that the administration was taking various steps to improve officer morale and recruiting.) At the time of Casiquito’s death, the corrections officer on that pod was overseeing 64 cells, double the normal purview. “It’s like a medieval Turkish prison,” Wilber told me.

As the nationwide homicide rate continued to increase in 2021, Wichita managed to buck the trend: Homicides there declined that year, to 54, a drop of 9% from the year before. Countless factors probably contributed, but local officials are convinced that their ability to get the courts running played a role.

In addition to resuming jury trials, the county has taken other steps to reduce its backlog. Last October, it summoned back a quartet of retired judges to head up what it called the “ARPA Court,” because the judges were paid for by funds from the federal American Rescue Plan Act. With their help, the county held 54 criminal jury trials last year, only 28% less than in 2019. This year, it’s roughly on track to return to its pre-pandemic pace.

On one recent weekday, the Wichita courthouse was buzzing. In O’Connor’s courtroom, the plexiglass dividers were stacked in a pile, awaiting removal. The judge was presiding over a sentencing hearing for a man convicted of murder in the July 2019 shooting of a 20-year-old Air Force member outside a party. The victim’s family had come from South Carolina and his father gave a wrenching testimonial about the loss of his son.

Afterward, in his chambers, O’Connor said this was another reason to get court operations moving again: to provide grieving family members with some closure. “You see just how important it is for family members to come to court,” he told me.

In another courtroom, a jury trial was underway for a 2021 domestic-violence-assault charge. Goering, sitting nearby in his chambers under the Hendrix and Joplin posters, said he was relieved to see just how close to normally the court was functioning. “We were going to have a backlog no matter what,” he said. “But I was just determined that it was going to be as small as possible.”

Over the past few months, I’ve visited a few cities where the courts underwent some of the country’s longest suspensions, and I found a very different scene. In Oakland, California, where jury trials started resuming only in the spring of 2021, the Alameda County Superior Courthouse still seemed frozen at the peak of the pandemic, with signs ordering visitors to take staircases only in certain directions and jurors and courtroom personnel still in mandatory masks.

In an interview in late April, the district attorney, Nancy O’Malley, told me that the county had about 4,700 felony cases and 6,000 misdemeanor cases pending with a future court date, up by a third from before the pandemic began. “The court is still not fully operational,” she said. She wasn’t sure if the county could have done differently, given California’s strict edicts on social distancing. “With rules for 6 feet apart, there was no way you could have people sitting in a box made for 12 people,” she said. “I don’t know how you do it while keeping people healthy.”

But she had little doubt that the court constraints had played a role in the rise in crime in Oakland, which last year saw homicides jump to 134, its highest tally since 2006. The absence or delay of consequences for many offenders created the perception of a “lawless society,” she told me.

In Seattle, the backlog of felony cases in the King County Superior Court stood at 4,800 in May, about 50% above pre-pandemic averages, after the court repeatedly suspended jury trials, including early this year, during the spread of the omicron variant. Seattle has also experienced a sharp rise in violent crime. The number of shootings last year, both fatal and nonfatal, was up 78% over 2019.

While I was there, I spoke with the director of the county’s Department of Public Defense, Anita Khandelwal, who offered a contrary view: She said that the solution to the backlogs was not simply to try to push through as many cases as quickly as possible. Prosecutors, she said, should rethink whether it was really necessary to bring so many cases in the first place, and should divert more people accused of nonviolent crimes into alternative, community-based resolution programs.

Back in Albuquerque, Mendez, in the district attorney’s office, said he could see the case for such a rethinking, but legislators would have to take that on. For his office, the immediate challenge remained working through a backlog that now had prosecutors facing a typical caseload of 80 felonies each, up from 50 pre-pandemic.

When I visited the Bernalillo County Courthouse and the nearby Metropolitan Court in April, many proceedings remained online, and the buildings were eerily still. One would not have guessed that the county was groaning under a pile of untried cases. The costs of the delays were not hard to discern, though. In one trial, on charges of criminal sexual penetration of a minor in 2014, the defendant’s father struggled to recall his responses to attorneys’ questions in 2018. It had, after all, been four years.

Still, the state and local courts defend the approach they took. “In developing public health safeguards and operating procedures for courthouses during the pandemic, members of the Supreme Court monitored COVID conditions in New Mexico, consulted with state health officials and regularly convened virtual meetings of chief judges across the state,” wrote Barry Massey, a spokesperson for the state’s Supreme Court, in a statement. And a spokesperson for the county court system said it was simply following the Supreme Court’s protocols.

Leon Casiquito’s family has filed a wrongful-death lawsuit against both the county and the company that provides the jail’s medical services. (The defendants have denied most of the allegations and moved to have the case dismissed.) The law firm handling the suit is well acquainted with the costs of the extended court hiatus; two of its other clients were found not guilty in murder cases, both on claims of self-defense, but had to sit in jail for a year longer than typical before their trials. The Casiquitos’ case is still in the discovery phase, but the family’s lawyers expect the trial will be delayed.

Casiquito’s older half-brother, Erik Fisher, who helped raise him, visits Casiquito’s grave almost every day and calls his mother to console her. “Leon was her baby,” he said. “They were very close. She took it really, really hard.”

Out on Route 66, the man who chased Casiquito out of Kelly’s Liquors, Danny Choi, was unaware of what exactly had become of him. Choi had gotten a call from the district attorney’s office telling him only that the case had been closed.

“I asked the prosecutor what happened, and he said he died,” Choi said. “He didn’t tell me how.”