By Sam Stanton
The Sacramento Bee
SACRAMENTO, Calif. — In a federal court hearing in Sacramento that was conducted by telephone on Wednesday because of COVID-19, the latest in a steady stream of requests was made for the release of an inmate from the Sacramento County Jail over fears of the pandemic spreading through the lockup.
This time, the motion concerned inmate Myron Armstrong, a 53-year-old native Sacramentan and father of two who has been in custody since July 2018 on drug and firearms charges.
Armstrong’s lawyer, Jan David Karowsky, first asked the court on April 8 to grant Armstrong’s release to home arrest pending trial, arguing that his client’s health problems — high blood pressure, phosphate in his urine, a diagnosis of being ‘pre-diabetic’ — make him especially vulnerable to the coronavirus.
“Mr. Armstrong also related to me that nothing is being done in the jail to protect the inmates from COVID-19 — they get ‘day room’ with numbers of inmates milling around in close proximity to each other,” Karowsky wrote. “They eat three times a day at the metal picnic tables in the day room, with 5-6 people sitting right next to each other; they do not have any access to hand sanitizer or any other means of cleaning their cells; and no special precautions are being implemented by way of any social distancing or any other CDC type of recommendations in the jail.”
COVID cases “have spread exponentially”
By Tuesday, Armstrong’s lawyer had filed dozens of new pages of arguments and exhibits, declaring that since his original request “the entire COVID-19 landscape, including positive cases in jails and prisons, positive cases statewide and nationally, deaths and court release orders, have spread exponentially.”
Ultimately, U.S. Magistrate Judge Kendall J. Newman decided Armstrong must remain in custody, noting that he and other judges in Sacramento’s federal courthouse get updates twice daily about conditions in the jail that sits across Fifth Street from the court, and that, so far, no inmates have tested positive for coronavirus.
“It is clearly strange times,” Newman said, explaining that the request for release could be renewed if conditions change. “I don’t like the term ‘new normal’ because there is no new normal. Everything changes day by day... I’ll tell you right now that my ruling is without prejudice, and if COVID-19 gets into the Sacramento County Jail I think I will have to be taking a look at cases differently than I do currently.”
The hearing lasted only a few minutes, but the judge made clear the extraordinary steps being taken in courts and jails as the legal justice system struggles to manage its safeguarding of prisoners during a pandemic that has closed down courthouses nationwide.
Judges seek trial delays, order hearings by phone, video
U.S. District Judge Kimberly J. Mueller, chief judge of the Sacramento-based Eastern District of California, already has suspended civil and criminal jury trials through May 1, partly to ensure the safety of potential jurors who would have to come to court and face the possibility of being exposed to someone carrying the virus.
She also allowed hearings to be conducted by phone or video, and last week asked the 9th U.S. Circuit Court of Appeals to suspend for a year the speedy trial provisions that require defendants to have their trials begin within 70 days of being charged unless they agree to a delay.
The 9th Circuit’s judicial council approved Mueller’s request Thursday and already has declared emergencies in the Central and Southern districts, based in Los Angeles and San Diego, to extend the guarantee of a speedy trial up to six months because of coronavirus.
The federal defender’s office in Sacramento supported Mueller’s request.
“We did this because the law permitting the emergency exempts some of our cases and clients from losing their constitutional speedy trial rights,” Federal Defender Heather Williams said. “The emergency does not apply to cases indicted before the 9th Circuit approves the emergency.
“The time from arrest to indictment is not reduced. While it increases the time for speedy trail from 70 to 180 days, it does not suspend speedy trial for jailed clients detained solely because they are awaiting trial.”
Like the federal courts in California, state courts also have been shut down except for essential hearings that can be handled largely by video sessions, and jails statewide have released thousands of inmates who were nearing their release dates.
The closures have postponed countless hearings, including the scheduled May 12 preliminary hearing that had been set in Sacramento for accused East Area Rapist/Golden State Killer Joseph James DeAngelo Jr.
Prosecutors had argued successfully that DeAngelo’s preliminary hearing should go forward in May because witnesses and victims are aging and could die before they get the chance to testify. But the coronavirus crisis means the May 12 hearing will be vacated and reset for later, with motions that were to be heard in April pushed back to June 29, the court said Thursday.
Sacramento court sessions streamed on Youtube
In Sacramento County, where employees are being told to wear masks in public areas of the downtown courtrooms, arraignments and other hearings are being live-streamed on Youtube and inmates are permitted to listen from the jail. If they choose to appear in a courtroom jail cell, they must first wait for deputies wearing masks to sanitize and wipe down the cell bars.
Inmate advocates have argued in forums across the nation that COVID-19 is a looming disaster inside county jails and state prisons. In California, some advocates have argued that as many as 50,000 of the state’s 120,000 inmates should be released because of coronavirus.
Gov. Gavin Newsom has rejected such sweeping steps. Instead, he allowed the release of 3,500 inmates who were due to be paroled within 60 days and suspended intake from county jails for a month, a move that kept another 3,000 people from being transferred into the system.
County jail inmates arguing for home detention
The county jails remain a focus of defense attorneys, who have complained loudly about their inability to get vulnerable clients released from custody during the pandemic.
“While our district court took swift measures to protect public and staff safety by adopting remote hearing procedures and suspending jury trials, we are disappointed to see release petitions for new arrests and those already detained routinely rejected because local jails have not yet reported COVID-19 positive cases,” Williams said. “Our clients, who are also members of our community with families and friends in our community, deserve the same protections California successfully implemented to reduce COVID-19’s spread and its devastating effects.”
Karowsky, in arguing for Armstrong’s release this week, noted that judges elsewhere have agreed to releases of inmates with more serious criminal backgrounds than Armstrong.
A federal magistrate judge in San Jose, for instance, agreed to release inmate Jeremy Daniels from custody at the Santa Rita Jail in Dublin last Thursday despite arguments from prosecutors that he is a former member of the Crips street gang, had five former felony convictions and was facing weapons charges.
“Other courts and government officials have recognized that inmates are at particular risk for contracting COVID-19,” U.S. Magistrate Judge Nathanael Cousins wrote in his order releasing Daniels to home arrest and electronic monitoring in his fiance’s apartment. “Alameda County officials, for example, have released over 200 inmates from Santa Rita and the total Santa Rita inmate population has been decreased by more than 500 since March 1.”
But the situation at the Santa Rita Jail is starkly different than Sacramento’s Main Jail and Rio Cosumnes Correctional Center, where officials say no inmates have tested positive.
“As of the drafting of this order, twelve inmates at Santa Rita Jail have tested positive for COVID-19,” Cousins wrote. “Twenty-one inmates are currently categorized as ‘red,’ meaning that they are ‘displaying symptoms consistent with COVID-19.’’
Officials say Sacramento’s jails remain safe
And federal prosecutors in Sacramento have argued in recent weeks that the Sacramento County Main Jail, operated by the Sheriff’s Office, has taken extensive steps to prevent a coronavirus outbreak.
“The jail is continuing to take precautions and to allocate more resources daily to fight the arrival of the virus, and to contain it should there be an infection,” prosecutors wrote in court filings this week. “Sacramento County Jail allows visits with attorneys who have been prescreened for high body temperatures, but all other visitors have been barred from entry.
“The jail has reconfigured visitor booth areas, which it cleans repeatedly, to allow for attorney-client visits, and the recording capabilities of the phone systems has been switched off. There is a solid glass partition between the inmate and the visiting attorney, and no circulated air can pass between the two areas.”
Despite that, inmate attorneys are continuing their efforts to win releases based on the danger from COVID-19: Newman had a bail review hearing Thursday for an inmate who argues his Hodgkin’s lymphoma puts him at risk from the virus. Another was scheduled for Friday for an inmate whose motion for bail because of COVID-19 was rejected earlier this week.
In Thursday’s hearing, Newman agreed to allow Matthew Core, an inmate being held at the Nevada County Jail, to be released to a 90-day drug treatment program pending his sentencing in a bank fraud and identity theft case.
Newman noted that, given Core’s previous criminal history, “if it wasn’t for COVID-19 this wouldn’t even be a close call.”
But, with the availability of space in the treatment program and no opposition from prosecutors, he approved the release that Core’s attorney, William Bonham, had been seeking.
“It’s strange and weird times that we’re facing, with an unknown risk,” Bonham said.
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©2020 The Sacramento Bee (Sacramento, Calif.)