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November 2009

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This article is in the news archives --- for current news go to the Third Branch News.


Courts Plan Ahead for Pandemic

Every year, as sure as the leaves turn, Chief Judge Joseph Bataillon (D. Neb.) and his district court staff get their flu shots. Growing up in a family of seven children, where everything infectious was passed around, he knows how fast flu can move through a group. In his view, the vaccinations are just as important to the continuance of court business as a continuity of operations plan in the event of a pandemic flu.

Bataillon’s district is particularly well-prepared for a pandemic. Three years ago, District of Nebraska law clerk Marc Pearce developed a disaster management program for the district and bankruptcy courts that led to an in-depth analysis of avian flu-related issues and a plan for chambers’ response in the event of a pandemic. His recommendations and plans were adopted by the Nebraska Judicial Council, and were used by the Administrative Office’s Judiciary Emergency Preparedness Office (JEPO) to develop the scope of a pandemic response template.

The templates are posted on the Judiciary’s intranet website under Emergency Preparedness, and JEPO chief William Lehman urges courts to review them and their own continuity of operations plans.

“While the templates outline strategies and planning for such elements as delegations of authority, essential functions, telework, alternate work sites, and recovery, each court tailors the templates to meet specific local requirements,” said Lehman.

In the Southern District of New York, Judge Denise Cote also gets her flu shot annually and encourages her law clerks to do the same.

“Our first priority is to stay healthy and attend to cases,” Cote said. “But we also learned from September 11 that we have to make plans. And an anticipated pandemic just added to the list of things we needed to address.”

As chair of the district’s Court Security Committee, Cote helped prepare a Pandemic Manual notable for its anticipation of needed information and procedures to be followed should a pandemic or other emergency require all or most judges and employees to work from home for an extended period of time. The manual for judges and chambers staff spawned multiple manuals. The office of the clerk of court and the probation and pretrial services office used the judges manual as a template to create manuals for their own resources and needs. The Pandemic Manual is so comprehensive, that the Center for Disease Control (CDC) uses it as an example of best practices for state and federal governments. The CDC also will be using the Southern District of New York’s pandemic plan in its training and on its website.

“It’s all in the manual,” said Cote. “We reached out to all players to identify the issues and which of our operations could continue if we had to work from home for an extended period.”

Indeed, with the manual, the court is prepared to work through almost any type of disruption of normal court business. It covers the assignment of cases when too few judges are available and even what to take with you before chambers are closed. It has information to help judges communicate remotely with chambers staff, the clerk’s office, and the district executive; on filing and managing documents; and on conducting bail reviews in criminal cases. Bail review procedures will be particularly important, according to Cote, if, as expected, federal prisoners will be detained until any declared emergency in the New York area is over.

The message is: Justice does not come to a screeching halt, even for H1N1 flu.

But what if there aren’t enough jurors to hold a jury trial, or if the defendant is sick for a prolonged period of time?

“Obviously you can’t have a jury trial, if you don’t have jurors,” said Bataillon. “You can continue the trial until you believe you have a Constitutional crisis and, hopefully, it would be a temporary situation. But the problem is much broader than that. If it’s a criminal case, you have to be sure the detention facility where the prisoner is housed is safe and properly staffed during a pandemic. You have to be sure defendants are not sick and can be transported to court. And what about witnesses? They have issues too. Should jurors and witnesses be quarantined? You have to think all that through, preferably before it happens. And you have to identify the resources you’ll need and your options. To formulate a plan on the fly only asks for problems.”

Existing statutes also provide guidance for courts when faced with difficulties empanelling a jury, or having a sick defendant stand trial.

For example, under the Speedy Trial Act, if a pandemic made it impractical to empanel a jury for trial, the judge could grant a trial continuance and exclude any resulting period of delay. Also, under the Federal Rules of Criminal Procedure, with a defendant’s written consent, the court may conduct proceedings for a misdemeanor in the defendant’s absence. Once a trial has begun, and if a defendant waives the right to be present, the trial may proceed to completion, including a jury verdict and sentencing, without the defendant’s presence.

Bataillon stresses the importance of tabletop exercises to accustom judges and court staff to different emergency scenarios. And he advocates building relationships with local agencies.

“You need to identify the public health agency for your jurisdiction that has the best information and can assist your court in making decisions,” he said. “Then you have to be sure the people you rely on, such as the U.S. Marshals Service and the various state and local law enforcement agencies, have plans with respect to providing witnesses and evidence and personnel when you need them. You can only do so much if the agencies you work with aren’t prepared.”