By K.D. Norris

ken@wktv.org

All sides within the Kent County courts’ criminal trials system know that after more than a 18 months of a pandemic-related pause of in-person trials there will be issues as courts slowly resume a courtroom calendar — most especially a backlog of criminal and civil cases awaiting trial, a backlog that could take more than a year to clear.

All Kent County courts handing criminal trials — from the cities of Wyoming and Kentwood’s smaller 62A and 62B district courts, to the larger countywide 63rd District and 17th Circuit courts — are now scheduling trials.

Kentwood’s 62B recently reported it held its first in-person trial in June and currently has a dozen or so scheduled through the end of the year — “We have a slight back log of cases waiting trial … All other hearings are current at 62B District Court,” a spokesperson for Judge Amanda Sterkenburg’s office told WKTV.

The 63rd District Court, however, will not begin criminal trials until mid-August, and their backlog could stretch out well into 2022 before a “sense of normal” returns, a situation most larger courts across the state are facing.

“What is a sense of normal in the court system, that is a good question,” 63rd district court Judge Sara J. Smolenski said to WKTV. “Obviously, the pandemic has taken its toll on every aspect of our lives. Here at the Court,  we  are working daily to have things be more normal or resume to normal, but it is constantly evolving. A good guess would hopefully be by the end of 2021.”

While Judge Smolenski is, maybe, optimistic about the backlog, the leaders of the two criminal trial lawyer groups often in opposition in the courtroom — the Kent County Prosecutor’s Office and Kent County Office of the Defender — are not so optimistic.

“It will take at least a year to get back to ‘normal’ in my estimation,” Prosecutor Chris Becker said to WKTV. “There is such a backlog of cases, while adding new ones through all of this, there just is not an easy and fast way to catch up. It is going to take time to work through all of them.”

“Misdemeanors (in District Court) are a little better positioned for returning to normal sooner than felonies in Circuit Court,” Chris Dennie, Director, Kent County Office of the Defender, said to WKTV. “Even though there is quite a backlog, I can see getting close to usual in about a year.”

In general, the Kent County District Court system handles trials of civil suits involving $25,000 or less, and adult criminal misdemeanor offenses punishable by up to one year’s imprisonment. The Kent County Circuit Court is the trial court in all civil cases involving more than $25,000, in all criminal cases where the offense is a felony or a serious misdemeanor, as well as all domestic relations cases, and all child abuse, neglect, and delinquency cases.

No shortcuts in criminal cases during pandemic

All sides in the county’s legal system also make clear that while judges and opposing lowers have been “creative” is handling cases during the pandemic, nothing has been done to simply push cases through.

“Every case is dealt with on an individual basis,” Judge Smolenski said. “The right to a speedy trial is very important, but no one has ever been through a pandemic like this where for many months you couldn’t bring jurors together for a case. Defense attorneys and prosecutors are working together to resolve the cases that can be resolved.”

Prosecutor Becker and Defender Dennie might argue that judicial point, however.

“The judges have tried to encourage resolving cases throughout the pause in jury trials,” Dennie said. “However, the prosecutors (both county and city) must be willing and the offices have made it clear they do not want to have what they call a “fire sale” on cases. There has been some work to resolve cases, but not enough to make a big difference.”

“I’ve told my staff to know and go over their cases and make the best possible offer they can, without violating the norms of what we do,” Becker said. “I’m sure if I offered a misdemeanor larceny $200-1,000 to someone charged with an armed robbery felony, they would take that deal. We could ‘catch up’ the docket pretty quick that way. We are not going to do that however; we still have to consider plea offers in relationship to long term public safety and the victims who were impacted by the crime.

“We have done things around the edges more, we have given more sentence recommendations perhaps, but nothing extreme. Judges have gotten involved more as well in this area.”

Backlog not only problem awaiting return to ‘normal’

Two other issues which could come into play with the resumption of jury trials after about 18-months is the as-yet resolved issue of defendants not gaining a “speedy” trial during and of a possible reluctance of citizen jurors returning to their civic duties live and in the courtrooms.

Becker, however, does not think the denial of a speedy trial will be a big issue, but he does hedge his bets a bit.

The idea “has been raised in other places, and I’m sure it will be brought up again. So I can’t say it is a settled part of the law at all,” Becker said. “I’m not sure how successful it will be however, when you had the (State of Michigan) Supreme Court saying trials were not allowed for a large portion of the pandemic. It is fairly unprecedented, but not sure how you can hold a trial when being told not do by the people who run the court system to some extent.”

However, when it comes to the issue of juror reluctance, Judge Smolenski, Prosecutor Becker and Defender Dennie each expressed concern.

“It has been the jury trials, wherein we were prohibited from having groups of jurors in the courtroom, that has become our biggest focus to resolve,” Judge Smolenski said.

“Not sure (but) hearing reports in other areas of larger amount of jurors not showing up when summoned when things re-started,” Becker said. There is “still fear out there, and people may not want to show up in a public area when ordered to. So it will be interesting to see how jurors respond when called to serve.”

And that possible lack of ‘a jury of peers” is particularly of concern to Defender Dennie.

“Defense attorneys have been very concerned about getting a fair and true cross section of the community for the jury pools,” Dennie said. “I’ve been told that in practice, so far, as they send out jury summons, very few people are asking to be released. So we remain concerned, but hopeful, that our clients are able to have fair juries.