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I'm sympathetic to all the arguments this piece makes about how the pandemic may undermine a host of defendants' constitutional rights. But man, this opening paragraph about how criminal cases work in "normal times" is a fantasy. /1 https://www.theatlantic.com/ideas/archive/2020/10/constitution-pause-americas-courtrooms/616633/
Let's take these claims one by one. First, the person is appointed a lawyer. Sometimes that's true. Sometimes, the person first has to pay a fee first. These are people, by definition, who are too poor to afford a lawyer. /2 https://law.yale.edu/sites/default/files/area/center/liman/document/pdfees-report.pdf
Sometimes, there simply aren't enough public defenders available and you're put on a waitlist (apropos of "the machinery of justice proceeds apace," which I'll take up next). /2.1 https://www.themarshallproject.org/2016/09/07/when-the-money-runs-out-for-public-defense-what-happens-next
Sometimes, the attorney you're appointed is spread so thin and has so many clients that it's a stretch to even call them your attorney. /2.2 https://www.themarshallproject.org/2016/09/09/what-happens-when-there-s-only-one-public-defender
Sometimes, your attorney is not qualified to do the work of adequately (let alone zealously) defending you. /2.3 https://www.themarshallproject.org/2016/09/08/when-real-estate-and-tax-lawyers-are-forced-to-do-a-public-defender-s-job
Next, "the machinery of justice proceeds apace" (apace="swiftly; quickly.") That's a joke. People routinely wait for years for their case to be resolved. /3 https://www.themarshallproject.org/2015/06/19/why-carlos-montero-has-been-in-rikers-for-seven-years-without-trial
Innocent people routinely plead guilty just to get out of jail because they're trapped there so long. Endlessly delayed trials ruin lives even for those who AREN'T jailed, as @nytimes documented in the Bronx. /3.1 https://archive.nytimes.com/www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-in-delays.html
The Constitution's guarantee of a speedy trial is usually put on the prosecutor. If the prosecutor is "ready for trial" but it's delayed for other reasons, no foul. But prosecutors too routinely game the system. /3.2 https://theappeal.org/internal-documents-reveal-how-bronx-prosecutors-are-taught-to-slow-down-cases/
Finally, the idea that you and your attorney can "review discovery" before trial is also a stretch. /4 https://www.themarshallproject.org/2017/08/07/undiscovered
Fortunately more and more states are opening up the discovery process—including NY, which liberalized its discovery rules for the first time in 40 years in the wake of our reporting. /4.1 https://www.themarshallproject.org/2019/04/01/blindfold-off-new-york-overhauls-pretrial-evidence-rules
But there are still many impediments to defendants having access to evidence in their case, not least of which is broadly-written victims' rights laws, which allow victims to demand that prosecutors withhold discovery. /4.2 https://www.themarshallproject.org/2018/05/22/nicholas-law
While it's 100% true that Covid has made the shitshow even shittier—and @MarshallProj has been out front reporting that—let's not forget that the criminal justice system in "normal times" was already a train wreck. In slow motion. /5 https://www.themarshallproject.org/2020/05/01/can-t-make-bail-sit-in-jail-even-longer-thanks-to-coronavirus
/fin.
