A Miami judge ordered an in-person criminal hearing. COVID quickly cut it short

With jury trials soon set to resume in Miami-Dade County criminal courts, one judge this week ordered what amounted to a dry run of sorts: an in-person probation violation hearing — the first of its kind since the coronavirus pandemic closed most courtrooms.

Circuit Judge Jose Fernandez, amid concerns about the virus and under pandemic legal guidelines, allowed prosecutors and witnesses to appear via Zoom. But he was there in court Tuesday along with a private defense lawyer, court clerk staff, a court reporter and three corrections officers to guard the defendant, a convicted burglar and kidnapper.

Just one day later, COVID-19 also made an unsolicited appearance in the proceedings. The hearing was abruptly postponed Wednesday after a courts employee who attended the previous day tested positive for the virus.

So far, court officials say, no one has been quarantined because of social distancing practiced in the courtroom. But Fernandez’s decision to even hold the hearing riled some in Miami’s criminal-justice community who are wary of resuming in-person hearings too soon. At the least, the episode underscores the challenges Miami-Dade faces as it plans to start in-person state jury trials on March 1, while the coronavirus threat still looms large in Florida.

Miami defense lawyer Barry Wax, who is not involved in the case, was one of the lawyers who complained in an online email forum for the Florida Association of Criminal Defense Lawyers.

“This idea of starting trials in March is outrageous,” Wax told the Herald. “It’s inevitable the virus is going to spread when you start bringing people back to the courthouse.”

Eunice Sigler, a court spokeswoman, said the employee received the positive result on Wednesday as the result of regular testing related to an off-duty job. She also said no court staff in the hearing came into close enough contact to require self-quarantining.

“The Miami-Dade Courts maintain among the strictest standards in the State of Florida in compliance with the CDC and in consultation with medical advisors,” she said in a statement.

The Miami-Dade corrections department said that the inmate and officers will be tested for COVID-19, as a precaution, even though “the courtroom was large enough to continue to socially distance and not remain in close contact.”

The defense lawyer, Gennaro Cariglio, did not respond to requests for comments. But in an email to the FACDL forum, he said: “While I was not within close contact of this courthouse employee for several hours or even 15 minutes or more per CDC guidelines and only came into occasional contact with that person thankfully (while wearing two masks), the defense still should not have been put in that position.”

Too soon?

It only was last week that Miami-Dade Chief Judge Bertila Soto announced that juries, both civil and criminal, will resume March 1 as the jails population has mushroomed back up to about 4,000 inmates and the backlog of cases has swelled. She said that civil and criminal courthouses will still be largely empty as other remote hearings continue — and no more than three trials per building will take place at any given time.

As with other public spaces, Miami-Dade’s courthouses have largely been shut down since mid-March 2020 as the highly contagious virus swept across the globe. Court officials had hoped to resume trials late last year, but they were postponed through Feb. 28.

Even though COVID-19 cases have fallen across Florida, many lawyers and some health experts have been wary of resuming trials in Miami-Dade, the state’s most populous court circuit housed in mostly an aging and cramped building.

Probation-violation hearings — in which defendants can be sentenced to stiff prison time — have been another source of legal contention during the pandemic.

The Florida Association of Criminal Defense Lawyers had argued that holding the hearings via Zoom violates the Constitution, and doesn’t allow lawyers to be able to properly communicate with their clients during such high-stakes proceedings.

The Third District Court of Appeals in December, however, rejected the claim, paving the way for probation-violation hearings via Zoom. The FACDL, however, is hoping that the Florida Supreme Court considers the issue. The Florida Supreme Court on Wednesday did announce that criminal jury trials can also be held remotely, if the defendant agrees in writing and “upon the case being conducive to a remote proceeding.”

This week’s case involved Carlos Socarras, who is facing a possible life prison sentence after violating probation on an array of felony convictions, including armed burglary and kidnapping.

Originally, Judge Fernandez ordered a Zoom hearing. But the defendant’s lawyer, Cariglio, initially pushed back, objecting to the “lack of an in-person” hearing, he wrote in his email to FACDL. The State Attorney’s Office objected to the in-person hearing.

Fernandez made a split decision. He allowed prosecutors to appear via Zoom, while ordering “myself and the defendant to be present while allowing the state and witnesses to appear on Zoom over my repeated objections,” Cariglio wrote. In a court order, Fernandez wrote the “defendant, at his request, shall be physically present in court with his counsel.”

Cariglio, in his email, said he later asked for the whole hearing to be postponed until after the March 1 courthouse reopening. Judge Fernandez denied the request and ordered the hearing to start on Tuesday.

Now, after the positive COVID-19 test, the hearing has been rescheduled for mid-March.

This story was originally published February 18, 2021 at 6:00 AM.