COVID-19 and Criminal Law: Q&A with Muskegon County Prosecutor D.J. Hilson
By Rachael M. Sedlacek, ICLE | 05/21/20

D.J. Hilson has been the Muskegon County Prosecutor since 2013 and served as an assistant prosecutor for 13 years. He recently addressed how his office has been impacted by the COVID-19 pandemic.

How is the COVID-19 crisis affecting new cases coming into your office? What about existing cases? Does this change how things are charged?

The only change we have seen is perhaps the volume of cases. We receive and process warrant requests every day, including the weekends. This includes for people who have been lodged in the jail and for investigations that have been completed but without an arrest. The number of people being lodged has certainly decreased, but the number of non-lodged warrants being processed has only slightly decreased and has remained steady.

Our existing caseload has not changed but is backing up as cases that were set for trial are on hold. My legal staff has been looking at their trial dockets and reviewing cases that we might be able to resolve that do not put the public or a victim at risk. This has required working closely with our local defense bar. Our district court has just started to relieve some of the pressure that was building up based on the non-lodged arraignments not being processed. They are now attempting to handle those remotely as there were well over 500 cases. This all requires that the people affected have access to a device as well as the Internet capabilities to do a remote hearing.

Our charging policies and decisions have not changed at all during this time period. We continue to properly evaluate each warrant request and use common sense and fairness and reason in each charging decision. That has always been and will remain how my office handles warrant reviews. As always we make sure that we maintain public and victim safety as our top priority.

Are defendants raising constitutional challenges due to the courts’ emergency measures in response to COVID-19? If so, what are the most common?

The most common challenge has been being physically present in the courtroom. We have typically deferred to the court on whether to proceed remotely or adjourn to a date when they can be physically present in the courtroom. Our judges have not all been consistent on this issue. Some have denied the request but allowed for the potential to appeal. At least one of our judges has adjourned the particular appearance to a date when such an appearance will be allowed by the new SCAO guidelines.

Do you have cases proceeding to trial?

We have not had a trial yet. However, I have been told that our circuit court and family court judges are willing to conduct bench trials if the parties all agree. I expect that we will start seeing trials in our family court before we see any in the criminal court.

How has COVID-19 affected plea negotiations?

When our courthouse shut down officially on March 16, I immediately began working with my administration team to come up with a set of guidelines for my lawyers to use when working on pending cases during this crisis. It provided my staff the ability to maintain our policy of as-charged pleas but to work with the defense bar and our bench on a sentence strategy that allowed for leniency to decrease or eliminate jail incarceration as a penalty. This went beyond a deferred jail sentence and provided defendants an incentive to have incarceration eliminated from their sentences after the “Stay Home, Stay Safe” Emergency Order and Michigan Supreme Court restrictions are lifted. Not all cases fit under this, especially those in which public and victim safety are at risk, but we have been able to resolve some cases in this fashion. We published this to our defense bar and to our bench. This has resulted in some resolution of cases that were pending trial. Of course it does require a little extra work on the defense bar to reach out and communicate with their clients. Our bench has been very accepting and accommodating of this policy change.

We’ve heard about presentencing issues being negatively affected by the COVID-19 crisis. Can you speak to that?

As far as I know, the court is still timely arraigning any incarcerated person, and the people who have been incarcerated since the closure have been a top priority as it relates to court proceedings (preliminary exams, pretrial conferences, motion hearings). I am unaware of anyone who is not a threat to public safety or a victim receiving anything more than a PR bond.

Is your office involved in the recent measures to reduce the jail population?

We started immediately working with our defense bar in March to review cases that we could stipulate to a reduced bond. If memory serves me, we were able to change the bond in about 30 cases. As a result our jail, which has a capacity of 542, is currently at a population of 280.

From your perspective, what is the most difficult issue facing criminal law practitioners right now?

From a prosecutor’s perspective, by far the biggest issue we have dealt with across the state is trying to decipher and interpret the power and enforcement of the governor’s EO. This has proven to be very difficult and time-consuming. I applaud the leadership and decision-making of Governor Whitmer. I know things have not been easy. However, we as local law enforcers have been left to try to figure out what citizens and businesses can and cannot do. It does not help that officials who are not the official or legal last word on these questions continue to complicate these issues. This of course creates local tension while we try to balance fairness with the need to keep our local public safe and healthy. The Prosecuting Attorneys Association of Michigan issued a statement just recently about the power of the governor and the EO. Just like any other question of law in our system, those questions are left to the judicial branch. As we have prior to this crisis, and as we stated in our statement, until a court of authority tells us that something is wrong or unconstitutional, we are bound by oath and duty to follow and enforce the law as it is written.

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