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Wheels of justice grind on in Nebraska as coronavirus generates common and constitutional concerns

Wheels of justice grind on in Nebraska as coronavirus generates common and constitutional concerns

In North Platte, about 80 folks, including court personnel, sheriff’s deputies, defendants and spectators crammed into a Lincoln County courtroom for routine hearings.

But two folks had everyone’s attention, said Debra McCarthy, clerk of the district court.

Two women were hacking away — their coughs piercing the courtroom quiet. The judge didn’t need to declare them in contempt — the rest of the spectators’ glares did that.

And after the hearing ended, all the courthouse regulars, especially the deputies, made a beeline for McCarthy’s bottle of hand sanitizer, practically bathing in it.

At the Douglas County Courthouse in Omaha, prosecutors and defense attorneys were sparring over whether a double homicide trial will take place Monday. Prosecutors wanted a delay; the defendant wanted his day in court. So the judge ordered the trial to go on as scheduled, with an extra pile of potential jurors brought in to ensure that enough show up.

And at the Nebraska Supreme Court in Lincoln, Chief Justice Mike Heavican issued an order requiring all courts to remain open and assuring the public that court officials will continue to monitor the coronavirus.

For now, the justice system will grind on with this realization: You have coronavirus concerns. The court has constitutional concerns.

Douglas County Public Defender Tom Riley, in his 45th year of practicing law, said the only hubbub that has created this much courthouse buzz was the Franklin Credit Union scandal of the 1980s, in which several high-profile Omahans were sensationally accused of running a child-sex ring.

The subject matter “is apples and oranges, but it involves the same kind of hysteria in the community,” Riley said. “I’ve never seen anything like it. It will be fascinating to see how it plays out.”

In declaring the courts open, Heavican called on citizens and court officials to do their duty and promised that the Supreme Court “is carefully monitoring the evolving circumstances presented by the spread of the novel coronavirus.”

Heavican spelled out who should not come to court: anyone who has traveled abroad in the past 14 days; people asked to self-quarantine by public officials or health care providers; and people exhibiting symptoms of an infectious respiratory illness, such as fever, cough and shortness of breath.

Heavican has told attorneys and court officials to carefully screen litigants and witnesses to make sure that they don’t fit into any of the above categories.

Heavican’s order apparently bars one of Douglas County’s district judges from presiding in a courtroom over the next two weeks. Judge Horacio Wheelock returned from France on Thursday.

The courts have been preparing for a pandemic. Under Heavican’s leadership, a committee of judges, public health officials and Nebraska Medical Center administrators and infectious disease experts held two dozen meetings over the past two years. In May, Nebraska hosted a summit of the nation’s state court officials on how to prepare for a pandemic.

Douglas County District Judge Leigh Ann Retelsdorf, who led the Nebraska group in the planning, said public health officials have the authority to close down public places such as courthouses. That has not happened yet.

For now, court and health officials have outlined steps the courts must take during such crises. The policies cover a host of issues.

There’s the constitutional: What would any delays do to a defendant’s right to a speedy trial? If the courts eventually have to go to videoconferencing, how do you guarantee a defendant’s right to confront his or her accuser?

And there’s the regimental: Douglas County courts were stocking up on hand sanitizer for jurors — and plastic bags to keep their cellphones separate. They were also planning to close the courtroom during deliberations so jurors can spread out there instead of piling into a cozy jury room.

But questions remain. Health officials encourage people to stay 6 feet away from one another to limit transmission. How do you do that when you’re sitting shoulder to shoulder in a jury box?

And then there’s the question of numbers.

Next week’s trial of Nyir Kuek, accused of a double slaying in Omaha’s Florence area, is slated to last for two weeks. What if a juror comes down with symptoms or, worse, is diagnosed with COVID-19, the illness caused by the virus?

Court officials plan to have at least four alternates for the 12-member jury. And during jury selection on Monday, they are planning to increase the pool of potential jurors from 60 to perhaps more than 100. Unless excused in advance, no-show jurors face the possibility of being held in contempt of court.

Courthouse officials across the state are also keeping tabs on county jails, where viruses can spread quickly. Douglas County officials say Corrections Director Mike Myers is clearing one jail module to house inmates with symptoms. The jail, which routinely houses 1,200 or more inmates, has recent experience in battling viruses, having dealt with a flu outbreak in December.

Officials say the last thing they want is inmates transporting any bugs from the jail to the courthouse.

That has several counties — including Douglas, Lancaster and Lincoln — looking at plans to increase the use of videoconferencing, especially in routine hearings.

McCarthy said Lincoln County is fortunate to have a few weeks before its next jury panel. Hopefully, she said, any “lovely hackers” will stay away from court.

“I don’t think I’ve washed my hands as much, or as conscientiously, in my life,” she said.

Douglas County doesn’t have much room for delay. Of the 1,276 inmates at the Douglas County Jail this week, only about 100 were serving out their sentences. That means 1,173 were awaiting their day in court. Absent mass releases, any court delays could add dozens to the rolls of an already crowded facility, said Riley, the public defender.

Riley himself was busy Thursday preparing to defend Kuek. During a break in his workday, he tuned in to see how his “beloved” UMass Minutemen were faring in the Atlantic 10 basketball tourney. Then he saw that the Atlantic 10 and practically every other conference had called off their tournaments, and it occurred to him:

It’s a lot easier to clear courts in basketball.

“People who don’t want to be on juries will come up with any excuse they can come up with,” Riley said. “But the good news is that there are far more good people in the world who are willing to do their duty. We need them to make our system work.”

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Reporter - Courts

Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.

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