Murder, child abuse suspects will walk free if COVID emergency order ends, DA warns
Sedgwick County’s district attorney says hundreds, possibly thousands of criminal suspects could go free if state legislative leaders allow Gov. Laura Kelly’s COVID-19 emergency declaration to expire as scheduled on Sept. 15.
District Attorney Marc Bennett has put those concerns in two e-mails to Legislative leaders, who between now and then will have to decide whether to extend the statewide coronavirus emergency.
“I will be very blunt,” Bennett wrote. “I am fully aware that there is little taste for extending the emergency orders. I understand the political pressure that comes with my request.
“But make no mistake, if you do not extend the emergency, murder cases, child sex offense cases, drive by shooting cases and the like will be dismissed.”
At the heart of the problem is a longstanding Kansas state law, which maintains the constitutional right to a speedy trial by requiring that cases be brought to trial no later than 150 days after a suspect is arraigned, Bennett said.
Under ordinary circumstances, a defendant who has to wait longer that 150 days gets released, regardless of the seriousness of the charges. Last year, a murder defendant walked out of court a free man because a judge miscalculated the 150 day limit and started the trial on Day 153, Bennett said.
Usually, meeting the scheduling requirement is not a big problem in Sedgwick County. But the coronavirus threat has slowed courts to a fraction of their usual pace and what was expected to be a month- to six-week-long slowdown in March has dragged on long past that, he said.
“This is unprecedented,” Bennett said. “There’s no way to shut down (trials) for six months and just expect us to get back on track in three or four months.”
Backlog 3,700 cases
At present, state Supreme Court Chief Justice Marla Luckert has given local courts permission to extend the 150-day deadline, said Lisa Taylor, spokeswoman for the state court system.
But that power is tied to a law known as House Bill 2016, passed during a special session of the Legislature in early June with the primary intent of limiting the governor’s power over the state’s pandemic response.
Since the passage of HB 2016, Kelly can issue an executive order to extend her emergency declaration, but she also has to get approval from the State Finance Council, a Republican-dominated group of legislative leaders.
“If her declaration expires, the suspension (of rules) imposed by the chief justice would continue for 150 days beyond that expiration, and then that suspension would also expire,” Taylor said.
She said Supreme Court staff has also been in contact with legislative leaders to express concern about the possible effect ending the emergency could have on the courts.
Kelly, a Democrat, has to get five of the eight legislators on the State Finance Council to agree to extend her emergency declaration. She chairs the panel but her vote doesn’t count under HB 2106 — and six of the eight legislators on the panel are Republicans.
Bennett, himself a Republican, said this is no time for politics.
“I try to run this office in a very nonpartisan way, but at the same time it’s no mystery to me that extending the governor’s orders is not a popular topic with a certain segment of the population and certainly with Republican legislators,” he said. “But if we don’t, the consequences would be very dire for prosecutors and the criminal justice system around the state.”
Bennett said his office alone is facing a backlog of about 3,000 cases — some that were in mid-process when the pandemic hit and others that have been filed since.
In addition, he said, “I’ve got 700 cases (waiting to be filed) sitting on a desk in the back of my office, that is no exaggeration.”
Most of those are relatively minor property crimes, but they’ll still need to be handled eventually, he said.
“They are cases we have approved for filing, but we have not put into the system because there’s no place for them, there’s no time for those hearings,” Bennett said. “So we have been very careful about what we put in.”
Bennett said there is just no way to handle between 3,000 and 3,700 trials in 150 days.
“I’ve tried very hard not to be hyperbolic about these things; I rarely raise the alarm bells,” he said. “I’ve always joked that I went to law school because there’s no math on the test. But I can count to 150 and I can count how many cases I have.
“There’s just no way to squeeze that many cases in in 150 days when you’ve got Thanksgiving and you’ve got Christmas breaks, etc. (Even if) we try jury cases on Christmas Day, it’s still not enough.
Bennett projected it could take a full year of work to clear the backlog, even if the courts could go full-speed, which they can’t.
Jurors the choke point
Courts have expanded their reach with teleconference justice and can take pleas, pass sentences, hold preliminary hearings and run other procedures online.
Experiments are underway to try to hold actual trials by remote communications and/or put enough Plexiglass barriers in courtrooms to protect people who have to be there in person, Taylor said.
The major bottleneck is jurors, Bennett said.
“We’re doing as much work as we can but there is no substitute under the Constitution for 12 strangers sitting at the side of the room” to hear the evidence and reach a verdict, he said. “That’s a constitutional right.”
Bennett said throughout his 23-year career as a prosecutor in Sedgwick County, the system’s relied on having the ability to gather 300 to 500 jurors on a given Monday to staff the week’s trials.
By law, each side in a criminal case gets to reject up to 12 jurors, while other potential jurors are routinely dismissed because they know someone involved in the case or have other conflicts, he said.
That means to have a trial, the court must gather a pool of 40 to 50 people to select from, he said.
Amid the COVID threat, jurors would have to be vetted for service in small groups of 15 or fewer for safety. While that’s possible, it would drag out jury selection, Bennett said.
That means it could be a Thursday before evidence presentation starts in a trial that would have been underway by Tuesday morning during pre-pandemic conditions, he said.
GOP lawmakers key
The two Wichita Republicans on the State Finance Council — Senate President Susan Wagle and House Majority Leader Dan Hawkins — did not return phone messages seeking comment.
Bennett said Wagle contacted him after he sent his e-mails to the Finance Council and he was encouraged by their conversation.
“They understand the issue,” he said, but added “You can’t count votes until they’re voted. My message was received, let’s put it that way.”
Wichita Democrat Tom Sawyer, the House minority leader, said he doesn’t know which way his Republican colleagues will jump.
When the panel met Thursday, he’d anticipated easy passage for a Kelly proposal to add $100 a week to unemployment benefits for people who have lost their jobs due to the pandemic, he said.
But the extra benefit was voted down by the panel’s Republican lawmakers.
Early on, the Finance Council members had seemed to be more or less on the same page in responding to the coronavirus crisis, he said.
But he said deliberations have become “more rocky and political” for the Republicans lately and now, “I don’t know what to expect out of them.”
This story was originally published September 6, 2020 at 5:07 AM.
