Cynthia Orr Discusses the Pandemic at the ABA House of Delegates on behalf of the NACDL

The Chair now recognizes Cynthia Orr to speak in opposition to the motion to amend.

10:25:36 You have five minutes.

10:25:42 >> Cynthia Orr:  Thank you, Chair Bay.

10:25:57 Delegates, and observers… the National Association of Criminal Defense Lawyers, who I represent in the house, appreciates the temporary need to consider innovative solutions to navigate the COVID-19 pandemic.

10:26:12 An associate in my firm is engaged in a virtual bail hearing in a Del Rio, Texas federal court now and we’re grateful that this proceeding is available to secure the release of the presumptively innocent accused.

10:26:25 However… the measures we use to deal with the virus cannot be reconciled with a right to confrontation, nor due process, nor effective assistance of counsel.

10:26:30 That is why the amendments proposed that undercut the real purpose of the resolution should be rejected.

10:26:38 They seek to allow unlimited use of virtual proceedings, instead of limiting them to necessary proceedings.

10:26:47 They seek to eliminate informed consent by only requiring consent to virtual proceedings.

10:27:00 This is at a time when pressure to consent is so great and persons consenting have little or no understanding of the direct, and collateral consequences of the decision, to enter a guilty plea in the case.

10:27:03 People are focused on release from detention.

10:27:21 And… the amendments would allow both early reopening, too early, or use of virtual proceedings after the pandemic emergency has passed What the resolution does, without these undercutting amendments would be to limit any mandatory virtual proceedings to necessary matters.

10:27:32 Such as those with respect to release of detained persons, with respect to possession of children and other such pressing matters.

10:27:44 We must not let convenience or expediency, even in these difficult times, destroy the crown jewel of our system of justice: the right to a fair trial.

10:27:59 I”m aware of two trials started during this pandemic, too early, that were halted before completion, one because of illness of a party who has now passed away and the other was adjourned by the court at the urging of counsel: the Durst trial

10:28:11 A capital murder trial in which the death penalty might be imposed is set to begin in Fort Worth, Texas on Thursday, with only seven observers allowed to the proceeding.

10:28:21 The appeals and writs that will follow these proceedings will either require retrials or diminish our precious rights to fair proceedings.

10:28:24 Therefore… reopening must be based on science.

10:28:37 W’re not asking for a specific calendar date, but… a decision based on independent medical supervision to insulate those decisions from political pressure or popular forces.

10:28:50 Measures for COVID control must be limited to the duration of the pandemic, otherwise… we”ll diminish the justice system and damage the public’s confidence in our system of justice.

10:29:09 Most-importantly, any waiver of important rights must be informed and must not exacerbate the historic failures of the criminal legal system, the erosion of the right to trial from coerced guilty pleas.

10:29:15 In sum, allowing mandatory virtual proceedings should be limited to necessary proceedings, only.

10:29:23 And not be permitted in any proceeding that might be involved including a criminal trial.

10:29:28 Measures taken to control COVID should last for the duration of the emergency, caused by the pandemic.

10:29:41 And the determination that the threat caused by the pandemic has ceased should be made on the basis of independent medical advice.

10:29:51 All wavers of rights during the pandemic, as at any time, must be informed consent, not involuntary consent.

10:30:01 In order to ensure we maintain the integrity of the system of justice I ask you to oppose the amendments to 117.

10:30:04 >> Chair Bay:  Thank you, Ms.

10:30:04 Orr.