Private, public defense lawyers race a common enemy: the coronavirus

By Noreen Marcus,

Miami criminal defense lawyer Edward Shohat and Gordon Weekes, the No. 2 public defender for Broward County, have something in common. Both are racing against time on behalf of a client–in Weekes’s case, many clients.

Their fast-moving foe is the coronavirus, the invisible monster that threatens millions of Americans with COVID-19 disease, suffering and death. The virus is especially pernicious, experts say, when it enters a closed penal system and the only escape route is a complicated court process.

That infiltration has begun. On March 22 an employee of the Marion Correctional Institution Work Camp near Ocala tested positive for the virus, according to the News4Jax website.

By all accounts coronavirus has not yet invaded Broward’s local jail system, the nation’s 13th largest. On Thursday, Broward’s four jail facilities held 3,279 inmates.

Two had been tested as of Thursday. One result came back negative and the other was pendingaccording to Sgt. Donald Prichard, public information officer for the Broward Sheriff’s Office.

In New York City, which has become the U.S. epicenter of the pandemic, the Board of Corrections called for the release of more than 2,000 older and more vulnerable inmates. And a man in Brooklyn became the first federal prison inmate to test positive, the Associated Press reported.

Team of defense lawyers

Shohat represents Ge Song Tao, a Chinese defense contractor detained on federal illegal-export charges in the Baker County Detention Center in Macclenny, up by the Georgia border near Raiford prison and little else.

A partner in Jones Walker’s Miami office, Shohat heads a team of three defense lawyers and a paralegal, all bent on getting Ge released as quickly as possible.

Ge, 50, is worried not only about the risk to his health, but the possibility that because he is Chinese, other inmates will target him, Shohat said.

“He’s concerned for any retribution that someone might take on him, out of ignorance, for causing the coronavirus, particularly if it hits the institution,” Shohat said. “I very much consider this a race against time.”

So does Weekes. He and about 100 public defenders under his supervision, as well as state prosecutors, are toiling day and night on an emergency docket before a rotating group of 23 judges.

Volume and defense lawyers

Their goal is to efficiently free non-violent defendants. Each one must be able to make a case for pretrial release based on the usual factors for bond reduction, plea agreements or the like, Broward Chief Judge Jack Tuter said.

Weekes, a candidate for his boss Howard Finkelstein’s job as Broward County Public Defender, is focusing on the crisis. “This is the most important mission for the criminal justice system right now because the impact is huge and immense,” he said.

“We have to stay on mission and make sure that our clients are properly served and minimize exposure to the public,” Weekes said. “We have to stay ahead of this because if we lose the race, it’s a whole other dynamic.”

Tuter is encouraging his colleagues to adapt new and sometimes illogical rules. “I would say it is virtually impossible for the jail to have social distancing,” he said. “That really is an absurdity. I know they are doing the best they can.”

Since the outbreak, jail officials have been separating arrestees from those already confined to reduce contact, he said.

Government pushes back

Shohat said he admires public defenders like Weekes who must do what he does, but pursue a raft of cases with far fewer resources.

“The issues are similar, but in terms of the volume level and the seriousness of the coronavirus threat, it’s a much more difficult problem for the lawyer who works for the service of the public and people who can’t afford private counsel,” he said.

“I wouldn’t want to be there,” Shohat said. “I’m thankful that I’m not.”

But Weekes can count on one advantage over Shohat: Weekes doesn’t have an adversary who is actively opposing his efforts to thin the jail population.

The U.S. Attorney for the federal district that includes Jacksonville, where Ge and his two co-defendants were indicted, is resisting Shohat’s moves to free Ge.

The government alleges Ge, a Navy lieutenant named Fan Yang, and his wife Yang Yang worked together to illegally ship to China, their homeland, seven inflatable vessels and eight engines.

A smoking SIG Sauer

The Yangs are also charged with obtaining for Ge, who may not possess a firearm due to his visa status, a SIG Sauer pistol engraved with his initials and “Never Out of the Fight.”

In a written response to Shohat’s motion for emergency release or a new pretrial detention hearing, prosecutors argue Ge is a flight risk who would likely, once freed, flee to China, which has no extradition treaty with the U.S.

The possibility that the coronavirus will sicken Ge doesn’t reduce the risk that he’ll flee, so it’s irrelevant, the government concludes.

Clearly the U.S. Attorney’s office fears the precedent the Ge case could set. If he were to win, “then every defendant awaiting trial would make that same flawed claim,” the response states. “That prospect is indefensible.”

The government’s position is “rather callous,” Shohat wrote in a motion filed Wednesday. “Every expert says that jails and prisons are literally Petri Dishes for the disease,” yet prosecutors see no reason to release Ge, whose doctor says he has asthma (the government questions this).

The federal magistrate overseeing his case has fast-tracked it and a ruling should be coming soon.

Remote dockets

At the moment, almost everything that happens in federal and state courts is done remotely. Shohat participates in conferences from his Miami home.

“You have no idea how many moving parts there are in a court system this large until something like this happens,” Tuter said. Getting the emergency docket up and running required intricate coordination of phones and Zoom video platforms, he said.

All that work seems to be paying off, though it may not be fast enough. Between March 19 and March 25, 366 people were released from Broward jails, according to the Broward Sheriff’s Office.

Tuter and others in the Broward criminal justice system have been working for several years to move people who need social services out of the jails, but this is a marked acceleration.

Weekes said each of several recent docket hearings has produced about 65 releases, and he’s shooting for 100 per session by starting earlier and finishing later.

“We have to have all hands on deck to address this issue,” he said. “We have to make sure individuals in the jail are not going to be exposed and if the virus gets in the jail, the staff isn’t exposed as well.

“There’s only so much room to isolate in the jail, and then you’re going to have a health crisis,” Weekes said before rushing off to another hearing.