Growing backlogs, fewer closed cases in Dane County as jury trials set to resume June 1

MADISON, Wis. — Dane County judges finalized a plan on Friday to resume jury trials starting June 1, a date well past a year after trials were first suspended in March by an order of the state Supreme Court due to the spread of COVID-19.

The suspension has resulted in a growing backlog of court cases and fewer criminal closures, as well as concerns both state and nationwide about Constitutional rights to a speedy trial while balanced with the safety of the public. Elsewhere in the state, jury trials have already resumed. In Dane County, a plan to resume trials had begun in the fall but was suspended because of a rise in COVID cases, judges said.

Meanwhile, thousands of defendants wait on closure, with criminal filings remaining on par with previous years during a year that has remained as busy as ever. “The courts and the legal system have not stopped because of the pandemic,” criminal defense attorney Vince Falcone with Tracey Wood & Associates said.

No trial deadlines: Fewer plea deals, closed cases

In February, Dane County had more than 8,000 open criminal cases; just three had trials tentatively scheduled. Neither number is an accurate measure of the number of cases that will ultimately go to trial, however, as the vast majority of cases are closed through plea agreements, dismissals, or other measures. In 2018, Dane County held 95 criminal jury trials, and another 89 in 2019. (Civil cases also go to trial, albeit even less of the time.)

“It’s weighed heavily on each of the judges; not just ones in the criminal division,” Dane County Circuit Judge John Hyland said of the temporary waiving of the Constitutional rights to a speedy trial. Neither are defendants the only ones affected.”We also need to be concerned with how this impacts victims, and this wait has not just been hard on defendants, it’s also hard on victims,” Dane County District Attorney Ismael Ozanne noted.

While most of the thousands of open cases are unlikely to end in a trial, the lack of a deadline has created a buildup in open cases that might normally have been already closed, attorneys say. Impending trials create an incentive for prosecutors and defense attorneys to come to an agreement; without them, cases are less likely to reach closure.

In 2020, defendants filed about 1,921 plea questionnaires with courts in Dane County–a document signed when a defendant accepts a plea agreement. That’s fewer than half the number of questionnaires filed in both 2018 and 2019, according to data provided by Dane County clerk of courts Carlo Esqueda.

But the whole picture is cases disposed, Dane County presiding judge Valerie Bailey-Rihn said. About 3,100 new criminal cases were filed in 2020, with about half of them closed. That’s down from about 75% disposed of in the previous year, with a decrease of about 25% when compared between 2019 and 2020.

Some in the criminal defense community feel the “reasonableness” of offers has declined in the county during the pandemic for some types of cases.

“There’s been a lack of incentive I feel on the state’s side to give good offers, I guess I would say, fair offers,” Falcone said. “With the defense side, it’s basically been–you haven’t been able to have that trial and that deadline to force and push along in terms of trying to get resolutions.”

Catherine Dorl in Madison’s state public defenders office says she agrees with that assessment, with stipulations.

“There have been some great offers, and there have been lousy offers. And again, if your case isn’t set for trial, sometimes it’s hard to know what a good offer is or isn’t,” Dorl said. “I would overall agree, but I wouldn’t say it’s across the board.”

Offers haven’t changed during the pandemic, Ozanne said, but the inclination of some defendants to settle has changed in some cases in an effort to prove good behavior outside of jail. Plus, the criminal justice system has made concerted efforts to find ways to lower incarceration rates during the pandemic.

In a pandemic, some choose case delays

“People don’t want to do jail time right now, and I don’t think we as a community want people to go to jail if we can avoid it,” Dorl said. “Other people who may not be in jail who are really suffering in other ways from the pandemic, having their case delayed may be a benefit to them. So it’s hard to say that it’s good or bad.”

In efforts to keep jail populations down in Dane County due to concerns about COVID-19 spreading inside, judges say finding ways to keep people out of incarceration became a priority. The population in Dane County’s jail dropped by several hundred from its normal levels during the pandemic, from more than 800 to maintaining a population of around 500.

“To decrease that population there was a great incentive as a result to not take case resolution that would put people into the jail or the prison system,” Judge Hyland said, who oversees the criminal division.

Additionally, prosecutors have opted towards adding more informal conferences to help move cases along during the pandemic, Judge Bailey-Rihn said.

“Clients weren’t necessarily looking to resolve a case when they weren’t in custody, because they were actually going to be able to have a good argument to the court that they’ve been doing good in the community and the court should take that into consideration if and when sentencing,” Dane County district attorney Ismael Ozanne explained.

Amid a growing backlog, case prioritization for jury trials

The plan to resume trials includes prioritization for cases, using factors like ongoing incarceration, victim issues, severity, age of the cases, and public safety to put cases ahead of others.

“Because of the Constitutional and statutory rights, as well as the deprivation of liberty awaiting trial, trials involving defendants who are in custody and have made a demand for a speedy trial or prompt disposition shall be given priority in scheduling over other criminal trials,” the plan read, signed by Judge Bailey-Rihn and Fifth Judicial District chief judge Thomas Vale.

“We do not like the fact that people have waited as long as they had to,” Judge Hyland noted. “But we’ve also been aware that we could not summon jurors from Dane County and safely ask them to come into a space without the rules necessary to keep them safe.”

This is Part 1 in a two-part series on the impact of the pandemic on Dane County’s criminal justice system; Part 2 will publish next Sunday, updated from previously Tuesday at 6.