Attorney Brandan J. Davies


Brandan Davies March 18, 2020

Whether you are feeling like this entire pandemic is over-hyped or you're scared to death, it really makes no difference. If you have a pending criminal case or happen to catch a criminal charge during this unprecedented time you are probably wondering...

What are the top three ways that the Coronavirus is going to impact your criminal case?

1. Time

Your case is going to take longer to get resolved than it normally would. Nearly all courthouses are already moving dates, canceling hearings or in all out shutdown mode. Jury trials are getting reset months out. In most courts, all non-essential operations are very limited. Essential operations being mostly things that impact a fundamental right i.e. bond hearings, arraingments, modification of sentence hearings...(things that mean the difference between staying in jail and not staying in jail)

How this may help you:

1. You have a right to a speedy trial. If the court dates get moved out and you aren't the one whom requested it then that time should still counts toward your speedy trial time. That is going to put a lot of stress on prosecutors to free up time to get people's case to trial the longer this pandemic goes.

2. Some cases get stale the longer they languish on. People move on including essential witnesses. Sometimes having a case last longer benefits the defendant. Witnesses have a change of heart and don't want to cooperate with a prosecution or just move and/or change contact info. This can make putting on a case more difficult for a prosecutor.

3. Witnesses' memories fades. Sometimes its as simple as the more time goes by the less someone remembers.

4. More time to do Positive things: If you have a drug or alcohol related crime, it might make sense to use the additional time to seek out treatment. Addressing problems that lead to your arrest is always a good thing for your personal well-being as well as your case.

How this may hurt you:

1. You're going to have more time to worry about the case. This may seem like not a big deal but for many people it's the uncertainty of not knowing that is the hardest part of a criminal case.

2. It can lull you into a false sense of security. When you get a case and they give you a court date two months down the road it is really easy to put it on the back burner and "deal with it later." Don't fall into that trap. Get a lawyer from the outset. There are essential deadlines on some criminal cases for the filing important documents. Get a lawyer on board.

3. You may sit in jail longer. If you're charged with crime and you can't post bond...You may sit in the jail longer than you would if the court's docket wasn't that busy.

4. More time = More time to screw up. If you're charged with a crime there is a good chance you are on bond. Bond comes with conditions. i.e No Drinking, No contact with a certain person, No Drugs. You have to take those conditions seriously or you will end up in violation of bond and sitting back in jail.

2. Access to a Lawyer

Like everyone else in the world, most lawyers are doing their best to "social distance" themselves. Many law offices are closed or operating with limited hours.

How this may help you: That's a tough one. It generally never helps you to have limited access to a lawyer.

How this may hurt you: Less lawyers to answer the phone and talk you through a situation or caution you from talking to the police generally hurts you. Having limited access to your lawyer to answer questions once your case has been filed also hurts you, you're more likely to make a mistake if you don't have access to your lawyer.

3. Humanity Prevails:

Judges are going to trend against sending criminal whom commit minor offenses to jail. If you commit a minor offense or are already sitting in jail on a minor offense you are way more likely to not go to jail or be released from jail. If this virus spreads the correctional facilities are going to face a crisis. The close quarters nature of jail will be a hotbed for virus transmission. Judges will take that into consideration when sentencing offenders for minor crimes.

Things to also consider:

Are the precautions taken to stop the coronavirus going to cause more criminal cases?

First let me say I'm not an expert in the medical field, I have no knowledge about the coronavirus other than the average joe. What I do know is the criminal justice system and how much of a mess this virus is going to cause on that system.

Here are some problems with our current "social distancing" model of addressing this pandemic in the criminal justice context.

1. People are going to continue to break the law no matter what is going on externally.

2. The more you take people out of their normal routine, the more stress you cause them.

3. The more you put people in a stressful situation (like being at home with family, worrying about their employment status or finances) the more likely they are to drink or consume mood altering substances.

4. When people are mentally impaired they are far more likely to commit crimes.

5. The closer you confine people the more conflict they will have.

6. More conflict generally equals more violence.

7. The overwhelming majority of violent crimes are committed by family members of the victim.

8. The more free time people have the more likely they are to do something stupid.

The longer that we do our best to stay away from each other and disrupt our "normal" life the far more likely we are to commit a crime. This spike in crime will somewhat be offset by the lack of crimes occurring outside of the home and the diminished propensity for the victims of those crimes to report them to authorities. Additionally, this uptick in crime will be offset somewhat because there will be less law enforcement to arrest people if law enforcement is occupied helping the general public survive.

So to put it short there is going to be an increase in domestic violence and alcohol and drug related crime. Whether that equates to more arrests and court cases is still left to be seen.

The coronavirus pandemic is going to cause problems with the criminal justice system and every actor within that system. Your best bet to navigate this turbulent time is to sit down with (or at least video conference) with a competent criminal defense lawyer whom has taken the time to consider the possible advantages and disadvantages to this unique situation.


UPDATE:  Supreme Court Orders all non-essential Court shut down.

Kansas district and appellate courts will move to emergency operations only, under an order issued Wednesday by the Kansas Supreme Court .

The order means only jury trials currently underway will continue. No other criminal or civil jury trials will be scheduled for at least two weeks. The Court will then review the situation and determine whether the order will be lifted.

“This is an extraordinary measure to match the gravity of the COVID-19 pandemic,” Chief Justice Marla Luckert said in a statement. “We have a duty to protect the people who come into our courthouses and courtrooms, as well as our employees and judges. This action allows courts to fulfill core functions while reducing in-person contact.”

Other actions considered emergency operations under the order generally include:

determining probable cause for persons arrested without a warrant;
first appearances;
*bond hearings;
*warrants for adults and juveniles;
*juvenile detention hearings;
*care and treatment emergency orders;
*protection from abuse and protection from stalking temporary orders;
*child in need of care hearings and orders;
*considering petitions to waive notice for abortions by minors;
*commitment of sexually violent predators; and
*isolation and quarantine hearings and orders.

During the effective dates of the order, no action will be dismissed for lack of prosecution.

The Court urges people with try completing their business online, by phone, or by mail. If that’s not possible, the person can call the court for direction. A limited number of staff will be available to answer questions.

Emergency operations for the appellate courts include:
*Appeals, motions, or original actions arising from the emergency operations of the district court;
*Any other appeal, motion, or original action requiring expeditious resolution.