SDNY Chief Judge Opens Up Coronavirus Plan for Courts

MANHATTAN (CN) — Even as the Southern District of New York suspends a new jury trial starting next week, Chief U.S. District Judge Colleen McMahon aims to keep the court services going as much as possible during the novel coronavirus outbreak.

“We’re the government,” McMahon said in an interview inside her 25th story chambers. “We’re the courts. We have an obligation to be here for the people, and so, all of our planning is geared around how we can continue to provide the essential service that we provide.”

In the Southern District of New York, Chief U.S. District Judge Colleen McMahon has been at helm since 2016. (ADAM KLASFELD photo/Courthouse News Service)

Long signaling independence in its nickname, the Southern, or Sovereign, District of New York has emerged as a nationwide leader among federal courts responding to the virus.

“There’s nothing being coordinated out of Washington, D.C.,” McMahon said, just hours after the World Health Organization affixed pandemic status to COVID-19, the new strain of coronavirus that has at least 125,048 confirmed cases globally Friday morning, killing 4,613 so far.

“The administrative office has advised courts to react based on local conditions,” McMahon continued. “So, there are 94 judicial districts. It’s been kind of every court for itself.”

Detailing her four-tiered plan, Judge McMahon explained that her district already has taken measures that others are implementing, like restricting courthouse entry to those who recently visited countries with surging cases of COVID-19, the coronavirus strain labeled a global pandemic this week by the World Health Organization.

“We know that we’ve done stuff that is now being copied nationwide,” McMahon said.

Ranging from the disseminating information to closing the court to all but the most senior personnel, the Southern District reached the second level of its plan Monday, denying courthouse entry to visitors returning within the past 14 days from five countries known to be hotspots for the pandemic: China, South Korea, Japan, Italy and Iran. Court security officers have been instructed to deny entry to anyone diagnosed with the virus, people asked by health authorities to self-quarantine, and those who have been in contact with someone from any of these categories. At every entrance of the courthouses, large signs warn the public of these prohibitions, and the jury clerk calls potential jurors at the beginning of every week.

“We’ll reschedule you, OK?” McMahon said, describing what the clerk tells the jurors. “Just don’t come.”

Across the river in Brooklyn, the Eastern District of New York’s restrictions on courthouse access are nearly identical to those of its Manhattan neighbor.

In Ohio, the Cincinnati-based Sixth Circuit U.S. Court of Appeals has a list of four countries, leaving Japan — which at 639 confirmed cases has roughly half as many people there with the coronavirus — off the list.

The Ninth Circuit, whose jurisdiction includes the hardest-hit state of Washington, canceled all en banc hearings, avoiding hearings that would put their entire appellate bench within close proximity of one another.

When they were located in the U.S. epicenter of the outbreak, the Seattle-based Western District of Washington suspended jury trials.

McMahon has a plan in place for such a crossroads.

“Level 3 would be if we had to close the courthouse, and it turned out to be Level 2 1/2 and then Level 3,” the judge said. “We half-closed the courthouse to almost every member of the public, and we’re inching into that.”

On Wednesday, the Southern District barred all non-case events, including mock trials, law school classes and school visits.

“Only case-related activities and naturalizations will continue,” a memorandum of that order states.

A day later, that pronouncement had another asterisk, with the cancellation of a new jury trial that would have begun Monday. This new state of affairs has also meant postponing the ceremonial swearing-in ceremonies for judges recently appointed by President Trump, for their benefit.

“We’d like to think about rescheduling because there are family members or friends who are not going to be able to be here,” McMahon noted, referring to the new judges’ ceremonies. “It’s a once-in-a-lifetime thing you want the people you love to be with you.”

Pedestrians pass under a news ticker in Times Square on  Wednesday. (AP Photo/John Minchillo)

If the pandemic’s toll on New York City moved up a half-step to Level 3, the Southern District would cancel jury trials and naturalizations.

“We’re not there yet,” McMahon emphasized.

Even at that level, judges will still preside over bench trials, arraignments and other proceedings deemed essential.

Heeding the warnings of public health authorities to practice social distancing and telecommute, major law firms have tried to keep out of court as much as possible. Quinn Emanuel, a global white-shoe law firm, shut its New York offices after a partner there tested positive for the novel coronavirus. Other major firms have encouraged the federal judiciary to adapt.

“Pretty much every, every Big Law partner that I’ve talked to, including my own former partners, say that there are new protocols at the law firm to minimize it, to eliminate business travel, to minimize face-to-face contact wherever possible. And we’re going along with that,” McMahon said, noting that many judges are holding teleconferences instead of live hearings.

“We’re granting adjournments, when they’re necessary,” she added. “We’re very flexible.”

New York has seen two recent precedents for the drastic remedy of Level 4 — shutting down the courthouses.

“In 2001 there was a bomb, in the form of an airplane or two, a few blocks away,” McMahon said, referring to the attacks on the World Trade Center. “So, we closed the building.”

A little more than a decade later, Southern District courthouses in Manhattan shut their doors again when Hurricane Sandy knocked out power south of 34th Street in 2012, blackening out half of the island’s iconic skyline and night.

“There are a whole slew of administrative measures that we know — because we’ve done this twice before — we have to take, and the orders are all ready,” McMahon said. “They’re sitting in a drawer they’re ready to be signed on.”

At that most drastic stage, senior judges and personnel would remain working — either in court or remotely.

“We could actually you know process new arrests, which we have to do within a certain number of hours, without anybody being face-to-face,” McMahon said, “but the judge could see the defendant, and the defendant could see the judge, which we believe is constitutionally required.”

But this is a step courts take with caution.

“One of the reasons to put that off until the last possible minute is precisely that you don’t know when it will be safe to go back in the water,” the chief judge remarked. “So, you want to be real sure that that conditions are such that that’s the only way to keep people safe.”

After rising to chief judge in 2016, McMahon quipped she had thought she had averted times of crisis.

“Sandy had come what like 11 years after 9/11, and I thought, ‘Well, if it’s an every-11-year cycle, then I’ll be out of here before — you know, it will be my successor’s problem,’” she commented wryly.

Shoppers wear face masks and sanitize their hands Thursday on the sidewalk at Herald Square in New York, N.Y. (AP Photo/John Minchillo)

It did not work out quite that way.

Working together with the court’s District Executive Edward Friedland, McMahon has kept her district open through the lengthy government shutdown in 2019.

“A man-made disaster,” Friedland chimed in.

“The government shut down,” said McMahon. “We managed not to shut down.”

Working in close coordination during times of crisis, McMahon and Friedland sat beside each other during the interview. The coronavirus epidemic that they are now confronting overlaps with another urgent situation next door to the courthouse.

The Metropolitan Correctional Center, where many inmates await trial in the Southern District, went on lockdown on Feb. 27 after receiving a tip that a firearm was smuggled in behind bars. Authorities found that loaded gun several days and multiple search crews later, using the discovery to justify their decision to clamp-down on attorney and family visits.

“The warden of the MCC has been confronted with an extraordinary crisis, which I think she’s handling, as well as could possibly be handled,” McMahon said. “There was no way to make everybody happy. But as I said, it turns out not to be a WMD story: There really was a gun in there.”

Alarming defense attorneys and advocates, the safety breach coincided with the coronavirus outbreaks dominating national headlines. The Federal Defenders of New York shared horror stories of inmates living in close quarters with little access to showers, medical care or adequate food.

For its part, the Bureau of Prisons reported no known cases of COVID-19 among federal inmates as recently as Tuesday.

“Out of an abundance of caution, the BOP provided guidance to health care professionals throughout the system and has a screening tool in place for use in the event an inmate or staff member is exposed or symptomatic,” the agency said in an unsigned email.

McMahon has a meeting on Friday with the bureau’s officials, where prison authorities are expected to share guidance about how to respond to the outbreak.

Whereas Bureau of Prisons directives will apply throughout the country, federal courts will likely be nimble enough to tailor their responses to their communities.

“That’s kind of the way the courts operate,” McMahon observed. “We rarely walk in lockstep.”

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