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On Monday, Cache County courts returned to the “red phase” of COVID-19 precautions after around a month in a “yellow phase.” As a result, jury trials and in-person hearings without exigent circumstances have again been indefinitely suspended, causing concern that the precautions conflict with the rights of the accused.

Utah State Courts Spokesperson Geoffrey Fattah said the implementation of the red phase was due to county health data showing an increase in COVID-19 cases in the area.

Despite having similar color codes, the court system’s COVID-19 guidelines change independently of those the governor sets for health districts.

Per CDC guidelines, Fattah said Cache County would need to see 14 days of sustained or decreased infection rates to return to a yellow phase. The presiding judge could then petition the Utah Judicial Council for the move while implementing various safety protocols and providing safety equipment. The council had approved Cache, Rich and Box Elder Counties to move to a yellow phase on Aug. 19 after being petitioned. Currently Rich and Box Elder county remain in a yellow phase.

Cases delayed by the inability to have in-person hearings have become an increasing concern since the pandemic began. On Monday, the 1st District Court saw nearly 150 cases on the docket; Tuesday’s docket had nearly 130.

“It makes it a lot harder for us to resolve cases,” said defense attorney Mike McGinnis. “We can see that we’re backed up with all these cases we haven’t been able to deal with. Taking them out of court again is going to make things worse, but I understand trying to keep people safe.”

There is also the concern of fairness for those held in jail on a no-bail status who are unable to exert their constitutional rights to confront accusers and have a speedy trial.

“The court and the prosecutor’s office has been pretty good about releasing a lot of people who normally, in different circumstances, wouldn’t be,” McGinnis said, “but that doesn’t change the fact there’s still people in jail that are waiting for their hearings.”

Defense attorney Shannon Demler estimated 10 people represented by the attorneys in his office are currently being held on a no-bail status awaiting trial. Demler said the right to a speedy trial can be outweighed by good cause, and the courts could likely view the pandemic as good cause.

“People’s rights are being violated, in the pure sense of the word,” Demler said. “It’s just whether the courts are justifying it because of the pandemic.”

Less severe cases can usually be resolved, Demler said, or at least the defendant can be released on bail. For Demler, hearings conducted over video conferencing are insufficient for more serious cases as defendants can’t confront their accusers and can’t confer with counsel in real-time.

“It’s a mess — it’s really affected the court system,” Demler said.

With many defendants being incarcerated for the past six to nine months, Demler said the new approach will be to file motions to have defendants released from jail pending dates for in-person hearings and trials.

“It’s not their fault they can’t have a trial,” Demler said. “We just can’t have the trial without being in-person — there’s no way. It’s not a fair situation.”

Demler said writs of habeas corpus and other motions, some prepared by the American Civil Liberties Union, are possible options for moving cases forward. However, in a Provo court, Demler said he “didn’t see any success with any of it.”

“This is egregious, what’s going on,” Demler said. “Everyday they sit in jail is a tragedy without having their hearing.”

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