In NC federal court, jittery attorneys want to know: Should we even be here?
Like dozens of other North Carolina defense attorneys, Meghann Burke filed a motion last month in federal court asking that a client be released from custody before he could fall victim to COVID-19.
What set her request apart, however, is that the well-known Asheville lawyer argued as much for her own safety as she did for that of her client, Brian Mercer.
Using a directness not normally found in legal communiques, Burke told U.S. Magistrate Judge Carleton Metcalf that Mercer’s recent violation of his supervised release had been relatively minor.
If the judge held a hearing on the matter in the Asheville federal courthouse instead of releasing Mercer from custody outright, he would be putting people in danger — among them Mercer and Burke, as well as Burke’s spouse and three children.
“Respectfully,” Burke wrote in her March 19 filing, “defense counsel should not ethically and humanely be forced to choose between advocating for their clients versus their family.”
Metcalf responded five days later. Not only did Mercer’s alleged violation warrant a hearing, the judge wrote, the defendant also would be required to attend to assist in his own defense.
Metcalf also announced that he would hold a second hearing focused on Burke – whether the attorney’s fears about the coronavirus compromised her ability to represent her client, and whether she should be removed from the case.
Accurately or not, Metcalf’s written comments were interpreted by defense attorneys across the federal Western District of North Carolina as a retaliatory threat against a lawyer who had raised legitimate concerns related to COVID-19.
At the very least, the exchange offered a rare, public glimpse into what many are describing as the growing tension between judges and defense attorneys over the safety of federal courtrooms still operating during the pandemic.
Chief U.S. District Judge Frank Whitney of Charlotte said the federal courts here have taken a series of steps to make the courthouses in Charlotte and Asheville safer — from delaying trials and shifting work schedules to operating the only federal courtrooms in the country that are sanitized before and after every hearing.
Yet Whitney acknowledged the unease the pandemic has wrought.
“There’s a lot of tension in these motions because everybody is scared,” Whitney said. “The defendants are scared. The defense attorneys are scared. The judges are scared. The prosecutors are scared. The (U.S.) marshals and court staff are scared, too.
“This is all unprecedented. We’ve never faced anything like it. But we’re doing the best we can to deal with it.”
Essential or not
State courthouses across North Carolina have been all but closed for weeks. Their federal counterparts in Charlotte and Asheville also operate on sharply slimmed-down schedules. Under an order handed down by Whitney this month, all trials in the Western District have been delayed until at least June 1.
But every day, one courtroom in each federal courthouse opens to handle what Whitney describes as essential criminal hearings about detention, sentencing and other select matters.
Individual judges, however, still decide what’s essential and what is not.
“We still have court because the justice system simply cannot turn itself off,” Whitney told the Observer.
And there’s the rub. Despite efforts to improve safety, concerns that the federal courts may contribute to the spread of COVID-19 continue to percolate among defense lawyers.
Interviews with more than a half-dozen prominent attorneys in Charlotte and Asheville reveal a range of frustration with how some judges continue to operate.
“It took a long time to get them to do anything at all, but they have now taken some measures to at least limit court time,” said one lawyer who practices frequently in federal court and who requested anonymity to speak candidly.
“Unfortunately, it still leaves the decisions up to individual judges, and many of them have a strange perception of what makes a hearing ‘essential.’”
The lawyers say it is they, not the judges, who must maintain close contact with clients who have spent the entire pandemic in cramped and potentially infectious confinement in county jails.
Holding hearings that could otherwise be delayed, they say, puts all of those involved — defendants, attorneys, court staff, judges and the public — at greater risk.
‘In the interests of public safety’
In a case this week, the attorney for Curtis Imes asked U.S. District Judge Ken Bell to delay his client’s April 23 sentencing on a firearms conviction for 30 days, noting that Imes already was in custody and that because of COVID-19, the federal Bureau of Prisons had sharply restricted the arrival of new inmates through May 18.
The attorney, assistant federal public defender John Parke Davis of Charlotte, also wrote Thursday that the delay was not opposed by the prosecution, that the hearing “is not essential at this time,” and that a delay would be “in the interests of public safety” by allowing “the public health crisis to abate sufficiently.”
Bell denied the request the same day it was filed.
Burke refused to comment to the Observer, citing current and upcoming cases she has before Charlotte- and Asheville-based federal judges. But in her filing to Metcalf, she made the point that courts cannot wall themselves off from the illness surrounding them.
“Every in-court hearing” at the Asheville courthouse, she wrote, violates Buncombe County’s ban on gatherings of 10 or more people and its earlier closure of businesses “where people congregate in close proximity for an extended period of time.”
The Asheville attorney also told the judge that her spouse is asthmatic and considered a “high risk” to contract a potentially lethal case of COVID-19. Her children, she added, “should also not be placed at risk in order (for their mother) to discharge her duties.”
Charlotte lawyer Chris Fialko said criminal defense attorneys find themselves thrust into the role of essential front-line workers unable to work safely at home.
“In my eyes, I’m going into federal court, and I will defend my clients,” Fialko said. “And I try to think about it in the same way as all those doctors and nurses and janitors going into hospitals to do their jobs.”
Fialko said he supported Burke’s motion to Metcalf, describing it as a “reasonable” attempt “to make the judges understand the new world we all find ourselves in.”
Whitney said the judges are well aware of the safety concerns, in part because they are having regular conversations with attorneys and other courthouse constituents. On March 31, Whitney and U.S. District Judge Martin Reidinger or Asheville hosted an audio conference about courthouse operations during the pandemic in which more than 100 lawyers participated.
Moreover, he said, the response of the courts to make courthouses safer has deepened over time, as the threat of the disease has become clearer.
“(Safety) is something we’re taking very seriously and very consciously,” Whitney said.
“We are holding hearings that are necessary to provide due process and deal with public safety. Each judge has to look at each case and make an assessment. For the most part, we have dramatically reduced the amount of time courtrooms are operating.”
‘If you don’t like it, you can leave’
The tensions also have surfaced in other courthouses. Last month in a packed Brooklyn, N.Y., courtroom, an attorney complained to the judge that social distancing steps were being ignored.
“If you don’t like it, you can leave,” Judge Johnny Lee Baynes replied.
Two weeks later, according to the New York Daily News, the popular Baynes died from coronavirus complications.
In Macomb County, Mich., near Detroit, the discovery that a COVID-19-sickened attorney had been practicing in one of the courtrooms led to a petition by several attorneys that the courthouse be closed.
“I’m livid. I’m extremely angry,” one of the lawyers said, according to the Macomb Daily. “This is what (the judges) get for messing around. … I hope they are really happy with themselves.”
In Western North Carolina, several of the judges say they are open to hearing lawyer concerns. U.S. District Judge Robert Conrad said each time a lawyer has asked for a delay in a case due to concerns for the health of themselves or their families, he has granted it.
Many of the hearings he has scheduled, he said, involved inmates who have been held in the jail as long or longer than the sentence they would have received for their alleged offense and cannot be freed before they appear before him.
“This is a very fluid situation where you are constantly re-examining what you’re doing to see if it’s reasonable or not,” Conrad said.
“I realize that where you sit in the courtroom influences how you see things. But from the judges’ perspectives, this is not an authoritarian imposition. It’s a learning process in which we are engaging.”
There are other examples of judges and attorneys reaching consensus on how to balance justice and personal safety.
Whitney says judges in the Western District are routinely delaying hearings for safety reasons, as he says he did recently for a Charlotte attorney who expressed concerns that his presence in the courtroom might pose a future health threat to his elderly mother.
In Asheville, Reidinger put a March hearing for Ralph Husby on indefinite hold to keep him from being sent to a federal hospital in Butner for a psychiatric evaluation.
Husby, a retired University of Illinois economics teacher with dementia, robbed a bank in Weaverville in 2018 under the belief that the election of Donald Trump would lead to an economic crisis and leave Husby homeless.
His defense attorney, Sean Devereaux of Asheville, and the prosecutor in the case had agreed that Husby would be found not guilty by reason of insanity on March 17, according to court documents.
But that would have been followed by Husby’s mandatory incarceration to evaluate whether he posed a risk to the public. Butner prison has had a recent outbreak of COVID-19, resulting in several inmate fatalities.
“My client is 78 years old,” Devereaux told the Observer. “Judge Reidinger decided that he may have to go to Butner at some point. But he ain’t going now.”
No pitchforks
On March 27, when Meghann Burke returned to Metcalf’s courtroom to argue that she remain on Brian Mercer’s case, four or five other attorneys showed up in support.
One of them was Devereaux, who said Burke had asked him to be there in case her client needed a new lawyer.
He also attended as a “show of support for the issue Meghann raised and for Meghann,” he said. “Nobody was waving pitchforks.”
In a filing two days earlier, Burke told Metcalf that she would continue to “advocate zealously” for Mercer’s best interests. “That includes fighting for his best chance of survival in the midst of a global pandemic,” she wrote.
She also suggested eight changes in procedures that she said would make court hearings safer, some of which the judges, acting independently, would later put in place, Whitney said.
In the end, Metcalf allowed Burke to stay on Mercer’s case. He also put Mercer on house arrest, contingent on electronic monitoring and regular drug testing, among other requirements.
Most importantly to Burke, the judge’s order got Mercer out of the McDowell County Jail.
In her original motion to Metcalf, Burke had written that as long as her client was jailed, he “was standing in a pool of gasoline, waiting for a match to be lit.”
For now, the matches have been put away, and Mercer is living with his mother.
This story was originally published April 17, 2020 at 2:18 PM with the headline "In NC federal court, jittery attorneys want to know: Should we even be here?."
