Amid a spike in gunfire on D.C. streets this year, Mayor Muriel E. Bowser (D) has been peppered with urgent questions about what her administration is doing to protect public safety. And again and again, she has cited a litany of impediments to quelling the violence, usually including this: The city’s backlogged, federally funded court system, Bowser contends, is failing to do its part.
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This “bottleneck,” she declared Wednesday in front of TV news cameras, is “denying justice to both the victims of violent crime and the accused.”
Those remarks — and other, similar comments she has made — apparently were more than two top judges in D.C. Superior Court could tolerate quietly.
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In a rare response, Chief Judge Anita M. Josey-Herring and her colleague Juliet J. McKenna, presiding judge of the criminal division, emerged from their chambers Thursday and stood before a cluster of microphones outside the Moultrie Courthouse, eschewing judicial reticence to push back strongly at the mayor.
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“It’s my responsibility as the chief judge to ensure that our judges, who are working hard, are understood to be doing so,” Josey-Herring said when asked why she chose to rebut Bowser publicly. “I don’t think it’s appropriate for me to let stand information that suggests the court is not open and hasn’t been working.”
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At a news briefing Wednesday, the mayor discussed neighborhood-based anti-violence initiatives that the city has undertaken and said she would seek a supplemental budget appropriation to hire more police officers.
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But she also said Superior Court delays are partly to blame for the crisis, suggesting that the court’s recovery from a pandemic-related slowdown is taking too long, stalling prosecutions of hundreds of criminal cases. This prompted Josey-Herring and McKenna to depart from the typical judicial practice of not responding publicly to criticism and making statements only from the bench.
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“We’re certainly not here this morning to point fingers at any of our criminal justice partners,” Josey-Herring told reporters. But she said: “We’ve been working hard. Obviously it’s been tough because there’s a pandemic. And we, like courts across the country, are struggling to address the cases that we have not been able to have trials in, because it was unsafe to bring people together.”
Bowser, accompanied by a bevy of city and federal officials, arrived for the Wednesday briefing in the Marion S. Barry Jr. Building, a block from the courthouse, with a PowerPoint presentation outlining her administration’s neighborhood initiatives, her plans for police spending and other measures aimed at stemming violence.
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“A critical part of the public safety apparatus is accountability for wrongdoing,” the presentation said, referring to D.C. Superior Court. It was replete with statistics indicating that the wheels of justice are grinding so glacially in the District that alleged perpetrators of violence are not facing timely consequences.
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In a felony case, after a person is arrested but before a trial, a prosecutor usually has to obtain an indictment from a grand jury — a routine process before the pandemic, when five grand juries were sitting simultaneously in D.C. Superior Court. But for more than a year, only two grand juries have been empaneled at any given time.
As a result, as of June 30, Bowser said, 2,382 felony cases were in limbo, awaiting grand jury action, compared with less than half that number in late December 2019, when the court system was functioning normally.
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And because jury trials in Superior Court were halted in March 2020, early in the pandemic, and resumed only on a limited basis a few months ago, the overall number of criminal cases awaiting adjudication reached 10,199 in June, compared with 5,707 pending cases at the start of 2020, the mayor said.
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She said the backlog has impacted the Pretrial Services Agency, which monitors defendants who are free while awaiting prosecution. At the end of June, 14,031 people were under PSA supervision, a 25 percent increase over the average daily number two years ago, Bowser said. She said the average length of stay for defendants in the D.C. jail also has gone up significantly.
At a Thursday meeting of D.C. Council members, Christopher Geldart, the deputy mayor for public safety and justice, said that while the court is giving priority to the most serious felony cases, “it is unclear, based upon the current diminished operations, if or when all other types of cases will be heard.” He said, “The failure to move cases forward is justice delayed for victims, defendants and the residents” of the District.
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Although Bowser hasn’t explicitly accused the court of dragging its feet, Josey-Herring and McKenna apparently sensed a clear implication.
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“I think it’s an overly simplistic analysis to suggest that one entity alone is responsible for the crime happening in the city,” Josey-Herring said in front of the courthouse, around the same time Geldart was addressing council members.
She did not dispute the numbers Bowser cited.
“We haven’t been operating at full capacity,” the chief judge said. “It’s a worldwide pandemic, and all of us have had to live with restrictions that have kept us safe. And that really is the main point. We want to protect the health and safety of people we’re either requiring or asking to come into our building. .？.？. We have expert advice that we’re relying on at every step, from epidemiologists, from industrial hygienists.”
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McKenna said the criminal division “had 25 courtrooms in normal operations” before the coronavirus crisis. She said about a dozen of those courtrooms are now open for in-person proceedings, including arraignments, mental health and drug treatment hearings and other routine matters. The rest are functioning “partly in person” or via video for more serious cases.
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If plans hold, McKenna said, “starting in early September, the criminal division will return almost 100 percent to in-person” proceedings.
“Notwithstanding the pandemic,” she said, “we have closed close to 7,500 cases. Many of those were felony matters. We’ve conducted close to 10,000 arraignments. We’ve processed over 6,000 arrest and search warrants. We’ve conducted countless hearings and offered multiple opportunities for people to resolve their cases through diversion agreements, plea bargains and, most recently, trials.”
On the backlog of cases awaiting indictments, Josey-Herring said, “we expect to continue to increase our capacity on the grand jury side. But, again, as with [trial] juries, grand juries involve bringing together large groups of people, and so long as we are under the constraints of the pandemic, we obviously have limitations.”
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With about 100 judges in its various divisions, D.C. Superior Court has a dozen vacancies on the bench, and Bowser has repeatedly called for them to be filled.
The D.C. Judicial Nomination Commission recommends prospective Superior Court judges to the White House. Nominees, chosen by the president, are subject to Senate confirmation. On Friday, the commission sent nine names to President Biden.
“Because we are not a state, D.C. relies on the federal government to fill court vacancies,” Bowser’s PowerPoint presentation noted. “The volume of matters before the Court requires a full slate of judges.”
In their 20-minute appearance in front of courthouse, Josey-Herring and McKenna were at least on common ground with the mayor regarding judicial appointments.
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“We definitely need more,” Josey-Herring said. “That was hurting us even before the pandemic, and it’s a continuing problem.”
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