Commentary: Balancing the responsibility to protect all citizens with the requirement to provide a speedy and public trial

Commentary: Balancing the responsibility to protect all citizens with the requirement to provide a speedy and public trial

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In mid-March, many departments of Elko County government were closed to protect the citizens of Elko and surrounding counties. It was a prudent move, even though it has made it difficult for judges, attorneys, court staff, etc. to conduct normal courthouse operations. It also poses questions about infringing on citizens’ rights, and about how we can do our jobs while keeping people safe.

We’re in a unique situation because courthouses are places where criminal defendants, some who have been housed in very close quarters where spread of disease is a very real possibility, must interact with law enforcement officers, court staff, attorneys, jurors, victims, and even the general public. As judges, we’re tasked with keeping all of these disparate groups of people safe and, during this pandemic, protected from the novel coronavirus. Social distancing, while recommended, is not feasible in many of the circumstances in which we conduct daily business.

So how do we balance defendants’ rights, guaranteed under the 6th Amendment of the United States Constitution which ensures “a speedy and public trial, by an impartial jury,” with our need to keep everyone, including the defendants, safe? How do we make sure all litigants receive due process, as guaranteed by the 5th Amendment? Even in civil cases, such as those involving guardianships which protect the elderly and young children, our most vulnerable citizens, we must be mindful of safeguarding everyone’s health.

Modern technology has helped somewhat. Using televised and live-streaming technologies, we’ve been able to conduct some necessary operations. Of course, budget constraints are always an issue. Thanks to a grant that I was awarded by the Nevada Administrative Office of the Courts, new video technology is currently being installed in my courtroom; I’ve also written two administrative orders regarding district court procedures during this pandemic, that were signed by Nevada Supreme Court Justice Kristina Pickering, Judge Al Kacin, and me.

Through the National Judicial College and similar organizations, my colleagues and I have also learned much, and very quickly, about the role of judges during a pandemic. We have been able to conduct some of the pressing business of our courts, albeit in a form that would have been unrecognizable just a few months ago. I have conducted many arraignments, sentencings, and probation violation hearings by interactive video with criminal defendants who are in jail. I have heard several civil cases by phone or video CourtCall. I have conducted my monthly hearings for my felony DUI treatment court by Zoom.

Things are changing practically by the hour, so we will continue to adapt. Governor Sisolak announced on May 7th, 2020 that some businesses in Nevada would be able to open. Judge Kacin and I will continue to monitor the situation so we can determine when it is safe to resume normal court operations. In the meantime, we’re doing our best to operate within reasonable parameters that keep courthouse staff, the public and the defendants safe.

Nancy Porter is the Department 1 district judge in Elko.


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