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A defense attorney is asking for a man accused of murder to be let out of jail, fearing a skin condition makes him more susceptible to getting the coronavirus.
People coming to court to support an incarcerated family member were told to stay out in an effort to stop the spread of the disease.
After a high-profile trial that touched on everything from polygamy to fraud to foreign corruption, an attorney asked for a mistrial. His reason? COVID-19 fears among the jurors.
And possibly hundreds of nonviolent inmates are in the process of being released.
[READ MORE: Hundreds of Utah inmates will soon be released in response to coronavirus]
Fears of spreading the coronavirus have upended so many parts of society, including the criminal justice system.
On Saturday, Matthew B. Durrant, chief justice of the Utah Supreme Court, issued an updated order canceling all jury trials until at least June 1 and telling Utah judges to reassess all defendants held on class B or C misdemeanors to determine if they could be released from jail.
The order says anyone summoned to court will get a new date after June 1, though the courts will remain open, shifting to video hearings. If an in-person hearing is necessary, Durrant wrote, the court must follow all public health orders, limiting the number of people who attend and how close they can get to one another.
The significant government actions came days after defense attorneys complained that inmates were still being bused to court and placed in holding cells in close proximity with other inmates.
“It’s in conflict with social distancing,” defense attorney Clayton Simms said Monday.
Salt Lake County jail officials said when they transported inmates this week, they took their temperature first. Sgt. Carrie Fisher said the area where inmates congregate to be taken to court is cleaned multiple times a day.
“We take pride,” she said, “in keeping our facility as clean as possible to make it a sanitary environment for prisoners, staff, volunteers and visitors.
Rich Mauro, the executive director of the Salt Lake Legal Defender Association, said he’s concerned that the coronavirus could quickly spread through a county jail, where people cycle in and out frequently. He said he would like to see all nonviolent offenders and people who are being held on warrants released. And when these people aren’t in jail, he said, it lessens the urgency to have their cases heard quickly and those court delays aren’t as concerning.
"That rush is reduced substantially when they are released from jail," Mauro said.
On Friday, Salt Lake County District Attorney Sim Gill worked with the public defense attorneys to make this happen.
Gill estimated that as many 200 inmates will be released from the Salt Lake County jail in coming days as public officials grapple with how to handle the criminal justice system in a time of a global pandemic.
Ninety or so inmates, mostly women, were let out of jail Friday — and more are expected this week. Those who are released are not accused of violence and are in jail because of more minor crimes or not showing up for court.
Even with the early releases for some, defense attorneys will have to weigh what to do next. Should they ask for their clients to be the next to be let out early? Can jurors come to a fair verdict if they are forced to be in a small room together to deliberate?
"It's certainly interesting," Simms said. "You have a constitutional right to a speedy trial. But when that meets the coronavirus, who wins?"
Simms echoed safety concerns for those who are incarcerated, noting that one of his clients is at the Weber County jail, where he sleeps in a large room filled with bunk beds and two dozen other inmates.
So far, only Salt Lake County has moved to release inmates early.
A few defense attorneys have started filing motions asking that their clients be released so they are not exposed to COVID-19 or in an area where it could spread quickly.
Attorney Randy Richards said he’s planning to file a handful this week, including for a client who is incarcerated for a DUI, a man who was shot by police and another client accused of murder whose trial was delayed because of the court closures.
That man, Cory Fitzwater, wanted his trial to go forward this week, but the judge called it off. Richards has argued in court papers that Fitzwater has a skin condition and a medical issue that will put him more at risk of getting COVID-19 if it starts to spread at the Weber County jail.
“As the governor has advised that immunocompromised individuals are not to congregate in groups of 20 or more, and where Mr. Fitzwater is an immunocompromised individual, he should not be permitted, for his safety, for the safety of other inmates, and for the well-being of the public at large, to remain in that facility,” Richards wrote. “Especially given the reality that jails are notoriously unsanitary environments.”
Richards said inmates have issues with being able to receive proper medical care, and he worries about those at the jail who are using the same toilets and sinks as dozens of others.
“It’s a Petri dish in there,” Richards said.
In another high-profile criminal case, an attorney for former Washakie Renewable Energy Chief Financial Officer Isaiah Kingston filed a motion Tuesday also asking for his client to be released from the Weber County jail, in part due to the coronavirus. Kingston suffers from Crohn’s disease and has a history of cancer, attorney Scott Williams wrote.
“These conditions compromise his immune system,” Williams wrote, “and make him particularly vulnerable to contracting COVID-19 when the virus makes its way into the jail system. His condition also puts him at the highest risk for serious illness or death.”
Williams also argued Kingston is no risk to the public and has fulfilled his obligation to testify in the trial of a former co-defendant, Lev Aslan Dermen.
Dermen’s attorneys have also filed motions related to COVID-19, seeking a mistrial and arguing that coronavirus concerns would impact the jury’s deliberations and affect his right to a fair trial.
Deliberations continued, and Derman was found guilty of 10 counts of conspiracy and money laundering. The federal judge presiding over his case has yet to rule on the mistrial motion.
And then there are those defendants who don’t want their cases heard until coronavirus fears are over.
Salt Lake City prosecutors have asked a judge to move up a hearing delayed until July for a man who is accused of driving drunk multiple times. They say it’s important for the case to move forward for public safety reasons — but his attorney, Jon Williams, asked that they not be forced to be in a courtroom together.
“The real question,” he wrote in a recent filing, “is whether crowding counsel, the defendant, the prosecutor, Her Honor, court staff, bailiffs, clerks, etc. into a small courtroom would help ensure public safety. The defendant submits that forcing groups of people into a confined space, unless absolutely necessary, flies in the face of all public health warnings — and common sense.”
— Tribune reporter Nate Carlisle contributed to this article.
