Despite the crisis that is the coronavirus, the last two weeks of March were merely business as unusual at the Douglas County Courthouse.
A handful of regulars gathered in a judge’s back room as a lawyer strummed his guitar in an impromptu folk session, killing time during the downtime. In another courtroom, a defense attorney was urged to go home after he sweated and coughed his way through a conversation. “Can’t,” responded the attorney, a solo practitioner. “Don’t have health insurance.”
And a prosecutor — unaware that he had coronavirus — had close encounters (6 feet or less) with at least 50 courthouse folks over the past two weeks. Fifteen-minute coffee talks with judges and their staff. Twenty-minute hearings with defendants and their attorneys.
After the prosecutor found out Monday he had tested positive for COVID-19, a chunk of the courthouse was forced to clear out. Those 50-plus people — including eight of the county’s 16 district judges, two dozen county attorneys and staff members and a dozen public defenders — are supposed to be home in self-quarantine for the next two weeks. In a place that is used to delayed results, it might be mid-April before courthouse regulars know whether the coronavirus exposure turns into a courthouse cluster.
Now, a state senator is turning up the volume on his calls to temporarily close the courthouse.
State Sen. Justin Wayne, an Omaha attorney who handles a mix of issues from criminal defense to evictions, said he urged city and county officials to do so in a conference call last week. The Omaha-Douglas Public Building Commission runs the courthouse and the City-County Building.
“In no way am I saying shut down the legal system — you can still have hearings by phone or by Zoom (videoconferencing software),” Wayne said. “I am saying, ‘Shut down the Douglas County Courthouse.’ Our physical presence is just not necessary.”
Douglas County Public Defender Tom Riley said his attorneys went from relative calm to “their hair on fire” Monday and Tuesday.
“Really — it is time to stop f@#%&*g around,” Riley wrote in an email to city and county officials. “To be honest, everyone should be tested. Period.”
Courthouses have been classified under essential services and thus excluded from the 10-person limit enacted in 41 of Nebraska’s 93 counties. Still, health officials have grown alarmed, even after Douglas County delayed hearings and trials to try to curb numbers. Douglas County Health Director Adi Pour told a judge this week that she was “appalled at how much foot traffic” the courthouse still has — comparing it to the streams of people venturing into home-improvement and grocery stores.
No one interviewed pointed a finger at the prosecutor who tested positive. An affable, longtime deputy Douglas County attorney, he didn’t feel well after a training trip to Kansas unrelated to work, went home and reportedly returned to work only after a doctor cleared him. He worked sporadically over the past two weeks. Friday, he found out that a fellow trainee had a positive test, went to the doctor and was tested. He got the results Monday.
But fingers were pointed in other directions — including at Nebraska Supreme Court Chief Justice Mike Heavican, who, after being informed of the prosecutor’s positive test, told a judge Monday he wasn’t changing his mind; he was keeping the courts open.
“Ridiculous,” said a longtime courthouse bailiff. “It’s all on him what happens down here (the rest of the way).”
Heavican didn’t return a phone call. State Court Administrator Corey Steel said the chief justice asked him to call instead.
The chief justice’s March 12 order — titled “in re: Novel Coronavirus and Covid-19 disease” — noted that “one of the most effective ways to protect against the spread of this disease is to limit exposure.” The chief then called on judges and attorneys, to the “extent possible … to screen people who may be exhibiting the symptoms of an infectious respiratory illness.”
The positive test of the prosecutor — who didn’t have any severe symptoms — proves how impossible that task is, said two Douglas County judges, who spoke on condition that they not be named.
Heavican also specified that the order “may be updated as conditions change.” On March 12, Nebraska had 11 confirmed cases. As of Wednesday, it had 214 cases and five deaths. Heavican hasn’t amended his order.
Steel noted that local officials, not the state, control whether courthouses remain open. In some counties, citizens and litigants arrive at courthouse doors to find them locked, with a sign posted with a phone number to call to try to gain access. In others, deputies are posted outside the door to screen people to see if they have business that must be done.
Steel said the chief justice has encouraged alternative ways to dispense justice. Several counties, including Douglas, have taken measures restricting access — and have utilized alternatives to in-court appearances, such as conferences by video or telephone.
Steel emphasized that the public needs some access to the courts. The state’s high court put it this way: “Even in an emergency, Nebraska courts and court offices strive to remain open. Keeping the courts open is an attempt to ensure that no person is deprived access to the courts, even in the aftermath of an emergency.”
Steel estimated that Douglas County has reduced its activity to 15% to 20% of what would normally go on. Hearings and jury trials are being postponed. Douglas County’s juvenile court is conducting hearings entirely by telephone or video.
In county and district court, judges can work and hold hearings from home. Now, with half of the district judges in self-quarantine, officials are asking litigants and lawyers to call each judge’s bailiff to make arrangements.
Ironically, two coronavirus-prevention efforts led the prosecutor to be all over the courthouse over the past two weeks. First, County Attorney Don Kleine had encouraged prosecutors to work from home — and had just a slimmed-down crew in the office. The prosecutor in question was on that crew — and that led him to handle more cases in more courtrooms than normal.
The other factor: Courtrooms were busy expediting cases to get inmates out of jail to make room for those being arrested. That led to more hearings, more people and more exposure to the infected prosecutor.
“We just can’t stop,” said Douglas County District Court administrator Doug Johnson. “The spigot has to keep spinning because people are coming in to jail.
“But yes, I’m concerned. I’m in (the courthouse’s) tiny elevators every day. We’re obviously violating the social distancing (guidelines) in there. We’ve got to plug through this thing and hope that this too shall pass.”
The building commission on Wednesday sent crews in to deep-clean the courtrooms and back rooms where the prosecutor was.
Scrubbing, while necessary, does little to cure the worry, Wayne said. The state senator said too many officials, national and local, are hoping rather than acting in the face of a virus that doesn’t yield to hope. Wayne spent part of Monday searching his mind as to whether he ran into the prosecutor over the past two weeks. He spent part of Tuesday trying to see if an eviction hearing was taking place.
He found out it was — and started worrying about the down-on-their-luck clients who will risk exposure as they try to defend their homes or, in criminal court, their freedom.
Wayne said he begrudgingly planned to venture to the courthouse Wednesday, wearing gloves and a mask.
The prosecutor’s case “proves the point,” Wayne said. “We’ve got that many people directly exposed. This is going to be a workers’ comp issue if we continue to knowingly put people in harm’s way for their jobs. I mean, what else has to happen before we finally shut it down?”
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