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Pinellas-Pasco public defender: Coronavirus too big a risk for trials to resume

An appeals court disagreed. Public Defender Bob Dillinger said he’s not backing down.
Pinellas-Pasco Circuit Judge Joseph Bulone listens during jury selection Tuesday in a courtroom in the Pinellas County Justice Center. He is wearing a mask and is sitting behind a plexiglass barrier. But Pinellas-Pasco Public Defender Bob Dillinger says that because of the pandemic, conditions are too risky to hold a trial at this time.
Pinellas-Pasco Circuit Judge Joseph Bulone listens during jury selection Tuesday in a courtroom in the Pinellas County Justice Center. He is wearing a mask and is sitting behind a plexiglass barrier. But Pinellas-Pasco Public Defender Bob Dillinger says that because of the pandemic, conditions are too risky to hold a trial at this time. [ Pinellas-Pasco Judicial Circuit ]
Published Oct. 28, 2020
Updated Oct. 28, 2020

LARGO — Hours after jury selection began Tuesday for the first criminal trial held in Pinellas County since the coronavirus appeared in Florida, the circuit’s public defender sounded the alarm.

Conditions inside and outside the Pinellas Criminal Justice Center were too risky to hold a jury trial, Pinellas-Pasco Public Defender Bob Dillinger argued in an emergency petition submitted Tuesday to an appeals court.

Confirmed cases of COVID-19 were rising in Pinellas and across the state, the petition noted. The assistant state attorney prosecuting Tuesday’s case had also been in contact with a colleague who tested positive days after they saw each other, the filing said.

Pinellas-Pasco Public Defender Bob Dillinger.
Pinellas-Pasco Public Defender Bob Dillinger. [ Pinellas-Pasco Public Defender's Office ]

And the defendant, Marquie Groover, was brought into the courtroom from the Pinellas County jail, where dozens of inmates have tested positive for the virus. Groover, who was facing a charge of domestic battery by strangulation, had not been tested, according to the petition. The public defender fears conditions are ripe for the infection to spread in a courtroom.

“The threat to the health and safety of the attorneys in trial, courtroom deputies, courtroom personnel, jurors witnesses and the Petitioner (Groover) is great,” Dillinger wrote. Thus, he argued that the Pinellas-Pasco judicial circuit should cease jury trials and scale back reopening plans.

Related: Masks, shields and a judge behind plexiglass: How we’ll do jury duty in Tampa Bay

The 2nd District Court of Appeal denied the petition Wednesday. But Dillinger said he’s not backing down. His office is working on its next steps as more trials are set to start in the coming weeks.

“We have really serious conflicting issues here," Dillinger told the Tampa Bay Times on Wednesday. "We want trials, but we want everybody safe.”

The conflict underscores the delicate balance between public health and a defendant’s right to their day in court. The pandemic’s vast and deadly spread shut down most in-person court proceedings in March. Some moved online. Others, like jury trials, stalled altogether, creating a massive backlog of cases while defendants languished in jail.

Adding to the complexity is what many experts fear will be a third wave of cases, in Florida and nationwide. Department of Health data shows that positive cases in Pinellas and statewide have been on the rise in recent weeks, and the county positivity rate rose from a weekly average of about 3 percent at the beginning of the month to about 5 percent now.

“There’s no easy button for this thing,” said Jay Wolfson, a University of South Florida professor and public health policy expert.

Like other governments and businesses, courts are reopening in phases with specific guidelines for when and how broadly they can begin returning to normal operations. The Florida Supreme Court set those guidelines, with flexibility built in for the chief judges of each judicial circuit to apply in a way that suits their area, said Paul Flemming, spokesman for the Office of State Courts Administrator.

People arrive at the Pinellas County Justice Center in June.
People arrive at the Pinellas County Justice Center in June. [ MARTHA ASENCIO RHINE | Times ]

In response to the public defender’s petition, Pinellas-Pasco court spokesman Stephen Thompson said it was “inaccurate factually and misstates the law.” He declined to elaborate further.

A photo of Tuesday’s jury selection process was posted to the circuit’s Facebook page. Everyone — attorneys, bailiffs, prospective jurors and the judge — wore masks, the post said. Circuit Judge Joseph Bulone sat at the bench behind a plexiglass barrier. Jurors sat apart from each other in the complex’s largest courtroom.

The Public Defender’s Office initially brought up their public health concerns in a motion before Bulone. The judge denied the motion, court records show. He then read an email from Chief Judge Anthony Rondolino saying the chief judge “monitors public health data and local conditions weekly” and “did not find it necessary to revert to Phase 1 following the last review," referring to the reopening phases. The court is currently in Phase 2.

What tipped the scales for Dillinger, he said, was learning of the positive cases at the Pinellas-Pasco State Attorney’s Office. Five investigators tested positive in recent weeks, according to the petition, and a prosecutor in the last few days. Both the State Attorney’s Office and the Public Defender’s Office are in the same building as the courthouse.

Related: Lack of social distancing in Pinellas courthouse alarms lawyers

Chief Assistant State Attorney Bruce Bartlett said the investigators tested positive 2½ to 3 weeks ago, work in a separate part of the building from the attorneys and don’t go to court.

The attorney tested positive on Saturday, Bartlett said, and was told to stay home. The trial prosecutor had seen that attorney recently, Bartlett said, but the office doesn’t believe he was contagious before Friday. They saw each other for about two minutes and were both wearing masks and social distancing, he said.

Bartlett added that he trusts Rondolino to lead the court through reopening effectively.

“The (state) Supreme Court gives him the discretion, and I feel he is very much on top of what is occurring in the courthouse," Bartlett said.

Another point raised in the petition was that Groover hadn’t been tested before coming to court from the Pinellas County jail, which has seen more than 70 positive inmates since March. Sheriff Bob Gualtieri reiterated Wednesday that the jail has several measures in place to prevent spread among inmates.

The jail purchased a rapid-testing machine, he said, but officials are struggling to find test kits. Gualtieri pointed out that rapid test results aren’t as reliable as traditional tests. They’re holding onto the roughly 100 kits they have for when jail doctors determine someone needs a test.

“If we had an unlimited supply, I would test everybody that’s booked and everyone who is going over to the courthouse, because there’s no down-side," Gualtieri said. “But we can’t get the kits to do it.”

Wolfson said that it’s a “massive risk” to bring an inmate into court untested, although he acknowledged that testing resources are tight. That’s why, he said, getting widespread access to rapid tests is so essential.

“We can begin to include those for the regular routine for courts," he said, "and that’s a basic safety principle that’s going to be part of what we do until we get rid of this.”

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