Robert Busbee, a Statesboro private-practice attorney, filed a challenge in mid-August to the state's extended COVID-19 emergency suspension of jury proceedings on behalf of five clients awaiting criminal trials in Bulloch County Superior Court.
That challenge, appearing as five separate "appeals," has reportedly become part of mounting pressures felt by the state's top judges to reopen the courts to jury proceedings.
The five men Busbee represents face charges ranging from multiple counts of entering auto to aggravated assault in separate cases. All remain in jail, either having been denied bond or having asked Busbee to file new motions for bond. Bond hearings do not require a jury, but these defendants had been indicted and were ready for trial when the delay began in March, he said.
So Busbee's clients were already unhappy with that original delay. But noting that everyone was experiencing an unprecedented pandemic, he told them in would only be a couple of months, he said in an emailed summary of his actions.
"Then, of course, a couple of months became three, then four, then five, then six. ...," Busbee wrote. "By the time we got to month five, my opinion changed. This was clearly a due process violation, and I felt like my clients were depending on me to be their voice on the outside."
Chief Justice Harold D. Melton of the Supreme Court of Georgia, who issued the initial emergency declaration March 14, has since extended it five times, with some modifications. But the order still prohibits courts from empaneling new trial juries or grand juries, although grand juries that were already named before the original order can be called back in some instances to issue new indictments.
New order this week
Melton's sixth and most recent order, issued Aug. 11, expires Thursday, but he is expected to issue a new order including some steps toward reopening.
Meanwhile, Busbee filed his challenges Aug. 19 with the Georgia Court of Appeals. He cited a section of state law which says that anybody whose rights or interests are adversely affected by judicial emergency order is entitled to appeal to that court.
However, the Appeals Court, in an Aug. 28 order, noted that it has only "limited jurisdiction to review constitutional questions" and sent the five men's challenges to the delay in jury trials up to the Supreme Court of Georgia itself.
In his appeal notice, Busbee cited "the due process and speedy trial clauses of the United States Constitution and the Constitution of the State of Georgia, specifically the 5th, 6th and 14th Amendments to the United States Constitution and Paragraphs I, II, VII, X, XI, XII and XVII of Article I, Section I" of the state Constitution.
No alternative sites
But this assertion of the constitutional rights to due process and a speedy trial was actually the second of two grounds Busbee asserted in the appeal notice. The first reason he asserts in challenging the order is that the state has failed to meet the requirements of its own law. He cited Georgia law section 38-3-16(c) as requiring that the judicial official issuing an emergency declaration, "designate another facility, which is reasonably accessible and appropriate, for the conduct of court business." The legal topics news service www.law360.com, in an Aug. 31 story, mentioned the transfer of the five appeals from the state Appeals Court to the Georgia Supreme Court. That story didn't note that all five appeals were from Bulloch County and filed by the same attorney. Both Law360 and the Atlanta Journal Constitution, also Aug. 31 at www.ajc.com, reported on remarks Melton made at a meeting of the Georgia Judicial Council. He noted that Georgia judges are feeling pressure to lift the ban on jury proceedings and said he hopes to be able to allow jury trials to resume in October.
With his September order, to be issued this week, Melton, plans to allow for some grand jury proceedings and to call for courts at the county level to submit plans to the Administrative Office of the Courts for safely holding in-person jury trials, Law360 reported.
"We're waiting to ... see what that new order actually says, but based on the statement that the chief justice made on Monday (Aug. 31), we're expecting that we're still going to have to go forward because we don't have any certainty," Busbee told the Statesboro Herald. "These guys have been waiting so long, and if he waits till October that's eight months."
Exactly how many Superior Court cases are backlogged in Bulloch County is hard to determine. The court has 442 pending, indicted cases, and of those, 59 have defendants who have waived the right to a jury trial, according to Bulloch County Clerk of Courts Heather Banks McNeal.
That leaves 383 cases that could potentially go to trial, but only a minority of cases actually do so. In 2019, Bulloch County had about 14 Superior Court jury selections for criminal and civil cases, McNeal said. But each selection typically was of trial juries summoned for "lengthy calendars with multiple defendants," she explained.
Of grand juries, which vet indictments presented by the district attorney's office for whether there is sufficient evidence to go to trial, Bulloch County usually empanels four a year, in February, May, August and November. These seasonal grand juries are often called back for additional cases.
But the call-back of the February grand jury was cancelled, the Bulloch County Superior Court was unable to empanel grand juries in May or August. There are now 549 pending unindicted cases, McNeal said. But a district attorney's office source has not been interviewed yet for a comparison of this number to a typical year.
Renata Newbill-Jallow, chief Ogeechee Judicial Circuit public defender, acknowledged that the public defenders have clients whose cases are ready for trial but gave no estimate of the number.
"There are some cases that need to go forward," she said. "You know, we were able to do some things. We moved some cases, and our clients who want jury trials are aware of the pandemic and have been patiently waiting on their day in court."
In fact, most criminal cases conclude with guilty pleas or dismissal of charges, and relatively few in jury trials. Some defendants are also free while awaiting trial, since judges have been able to hold bond hearings.
Newbill-Jallow said she understands the state chief justice's efforts, both in the judicial emergency declaration and in considering a resumption of jury proceedings, in terms of balancing concerns for public safety and defendants' constitutional rights.
"We welcome the chief justice's decision to reopen court," she said. "Several of our clients are looking forward to the re-opening and the resumption of jury trials. We appreciate Chief Justice Melton's leadership as well as the circuit court judges in balancing the need to protect the health and safety of the community and to protect our clients' constitutional rights."