FILED
2020 Mar 23
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
IN THE MATTER OF CRIMINAL
PROCEEDINGS AND SUPERVISION
DURING THE CORONAVIRUS GENERAL ORDER
20-010
OUTBREAK
With the substantial increase in confirmed COVID-19 cases in Utah within the
past week, the court has determined that it must implement the following changes to
criminal proceedings as a means of protecting, as much as possible, the health of the
participants while preserving the rights of those accused of committing crimes.
Therefore, IT IS HEREBY ORDERED effectively immediately:
ATTORNEY-CLIENT PRIVILEGE 1
1. Under Federal Rule of Evidence 502(d), a communication made from
March 23, 2020 to May 1, 2020, between an attorney and a client, using electronic
communication technology available at a local detention facility, is not waived by the
presence of third parties or the existence of monitoring, whether or not the monitoring is
1 In response to the coronavirus (COVID-19) outbreak, many local detention facilities
throughout Utah that house federal inmates have reasonably restricted the ability of
attorneys to meet privately with their clients. While electronic options (telephone calls or
videoconferencing) are available, those options often do not facilitate secure, private
communications because inmates share a common area and can overhear each other’s
conversations. Furthermore, transporting inmates to and from detention facilities to the
courthouse for hearings, where attorneys can speak privately with their clients, currently
increases the risk of exposure to and the spread of the virus.
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disclosed. For attorney-client privilege to be preserved and not waived, the following
factors must be satisfied: (1) the communication is covered by the attorney-client
privilege, (2) the communication must be made using a third-party teleconferencing or
video conferencing system available at the detention facility, and (3) defense counsel
must make a statement at the beginning of the electronic communication, indicating that
the conversation is protected by the attorney-client privilege.
PRETRIAL SERVICES REPORTS
2. In consideration of the many restrictions enumerated in General Orders
20-008 and 20-009, between March 23, 2020 and May 1, 2020, all Pretrial Services
Reports (often referred to as Bail Reports) will be filed under seal in the court’s CM/ECF
system. A Pretrial Services Report must be stamped SEALED and emailed—at the
same time—to the prosecutor and defense counsel who are appearing at the hearing in
which the report will be considered. Prior to the hearing, defense counsel may discuss
the report with their client.
3. Within seven days of the initial detention hearing, the prosecutor and
defense counsel must destroy their copies of the report, with the exception of the
criminal history portion that counsel is already permitted to retain. The court expects
that, as officers of the court, the prosecutor and defense counsel will fully comply with
this requirement, and do so timely.
4. The prosecutor and defense counsel will not release or provide copies of
the report to any other person.
5. Destruction of the report means (1) deleting any emails containing the
report from an email inbox and email trash or deleted items, and (2) shredding paper
copies or placing paper copies into a secured document shredding container.
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CRIMINAL HEARINGS
6. With the number of local COVID-19 cases increasing each day, the court
will hold in-person criminal hearings only in exceptional circumstances and after the
exhaustion of all other available options. Therefore, all reasonable available efforts must
be made to conduct the hearing employing existing telephonic or video conference
options prior to proceeding with an in-person hearing. Toward that end, counsel are
instructed to contact and work with Rebecca Skordas, the court’s CJA Supervising
Attorney, and the judge’s courtroom deputy to enable hearings to proceed by electronic
means.
7. When electronic means are unavailable or when the defendant does not
consent to using teleconferencing, the court will conduct any in-person proceedings,
including an initial appearance, arraignment, or detention hearing, at the courthouse as
follows:
a. Before the court proceeding, the defendant will be escorted by the
United States Marshal Services (USMS) to courtroom 8.200. All court
personnel, defense counsel, prosecutor, witnesses, and the judicial
officer will convene in courtroom 8.100, where all proceedings will be
carried out by video conferencing, provided that the defendant
consents under Federal Rules of Criminal Procedure 5(f) and 10(c).
Defense counsel may, at their discretion, choose to be present in
courtroom 8.200 as long as they stay at least six feet away from their
client.
b. Depending on the court’s technological capabilities, interpreters will
provide interpreting services from courtroom 8.100 if possible—or
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alternatively, from courtroom 8.200, using headsets and sitting at least
six feet away from the defendant.
c. The court will provide defendant with sufficient opportunity to
communicate privately with their attorney before the proceeding starts.
The court will also liberally recess proceedings to permit counsel to
consult with a client during a hearing in a location where they can
maintain a distance of at least six feet.
d. In advance of any in-person proceedings, counsel must inform the
court if they have tested positive for COVID-19 in the past 14 days,
have had contact with anyone who has tested positive for COVID-19 in
the past 14 days, have COVID-19 symptoms (fever, cough, shortness
of breath), are under an order to self-quarantine, or have been to, or
had contact with anyone who has been to, the countries listed in
General Order 20-008. Counsel should also inform the court if they, or
their client, is in a high-risk category (e.g., over 60 years old, heart
disease, diabetes, lung disease, weakened immune system, or
pregnant) and need the matter to be rescheduled.
e. All persons attending an in-person proceeding at the courthouse must
stay at least six feet away from other people at all times.
8. Currently, it is difficult to obtain a wet signature on financial affidavits
because of the restrictions on in-person contact with inmates at local detention facilities.
Even so, defense counsel remains obligated to complete and review the financial
affidavit with their client privately as circumstances permit before the judge enters the
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courtroom and convenes the hearing. At the beginning of initial appearances conducted
by teleconference, the court will excuse the prosecutor from the hearing before
engaging in a colloquy with the defendant about their financial circumstances to confirm
the information obtained by defense counsel is true and correct. Defense counsel will be
permitted to file a signed financial affidavit at a later date to be determined by the
magistrate judge presiding at the hearing.
9. In the event that a local detention facility is on lockdown, the court will
reschedule criminal proceedings involving defendants located at that facility.
MOTIONS FOR TEMPORARY RELEASE UNDER 18 USC § 3142(i)
10. The court anticipates that defense counsel will likely file Motions for
Temporary Release under 18 USC § 3142(i) because of this pandemic. The magistrate
judge who entered the initial detention order in the case will decide these motions.
Defendants, however, can seek review of the magistrate judge’s decision by a district
judge.
UNITED STATES PROBATION AND PRETRIAL SERVICES OFFICE
11. The United States Probation and Pretrial Services Office for the District of
Utah is closed to the public for walk-in access due to the coronavirus. Persons under
supervision should not report in person to the office.
12. Instead, persons under supervision should contact the main office number
at 801-535-2701.
13. Please note that this situation does not affect the supervision of
defendants and offenders in the community. The office will continue its efforts to monitor
and enforce court-ordered conditions of release throughout the District of Utah.
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This Order remains in effect until the court orders otherwise.
SO ORDERED this 23rd day of March, 2020.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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