Speaking Up for Survivors During COVID-19: How Our Attorneys Are Showing Up for Our Clients

In March of this year, DC entered a state of emergency due to the global COVID-19 pandemic and drastically reduced or outright ceased most operations. Almost all pending cases, civil and criminal, were impacted in the form of postponed and rescheduled hearings or trials. Around the same time, criminal defendants who were detained pending trial, as well as inmates currently serving prison sentences for a previous conviction, began filing motions for release. Generally speaking, these motions based the request for release on the health risks posed by COVID-19, the risk of contagion while incarcerated, and other arguments about the specific health risks of the defendant or inmate seeking release.

The flurry of these motions set NVRDC into a scramble. Since the courthouse was effectively shut down, these matter were mostly being handled over paperwork. In addition, the urgent nature of the requests required a quick response from the court. NVRDC was concerned that there would be multiple instances where our clients may have no idea that the person who assaulted or sexually abused them would suddenly be released. NVRDC did not have a specific position as to the release of any particular defendant or inmate, but it was a priority that NVRDC secured our client’s rights to notice and an opportunity to be heard on the matter; for or against.

NVRDC acted quickly to contact the court and advocate that the court modify an administrative order that dictated the process for filing a COVID-19 release motion. The court did modify the COVID-19 motion procedure in a subsequent order and thereafter required the Government to notify victims of the pending defense request and provide the court with the victim’s position.

In addition, NVRDC engaged pro bono attorneys at Williams & Connolly to quickly draft a pre-emptive COVID-19 motion. This motion could be filed in any criminal case where NVRDC attorneys were representing victims of crime and a COVID-19 release motion had not yet been filed. The purpose of this pre-emptive filing was ensure that the court and the parties were aware that the victim in the particular case intended to actively participate if a COVID-19 motion was filed and to further require that the victim’s attorney receive copies of any COVID-19 motions that were filed.

During this same time period, the DC Public Defender’s Service filed a federal lawsuit seeking the release of any inmates currently detained on misdemeanor charges. NVRDC engaged pro bono counsel at Hogan Lovell’s to file an amicus curiae brief in that litigation. As a friend-of-the-court, NVRDC did not take a wholesale position on the continued release or detention of the affected inmates, but hoped to aid the court in making a decision that provided victims of sexual abuse, domestic violence, and stalking the right to notice and an opportunity to be heard before releasing any offenders.

All of the above efforts were impactful for current NVRDC clients or clients with ongoing criminal prosecutions, but they did not address any of NVRDC’s former clients where the defendant had already been convicted and was currently serving a felony sentence. NVRDC contacted as many former clients as possible and advised them about the possibility of the already-convicted offender seeking early release due to COVID-19. NVRDC also sought to ensure that the prosecutors involved with the cases of former clients had the right contact information in case the Government needed to provide notice in the future.

In one such circumstance, a defendant in a former client's case filed a motion for compassionate release due to COVID-19 - despite being young, healthy, and only a few months into a several years-long sentence for sexual abuse. After receiving notice from the United States Attorney’s Office, the NVRDC attorney promptly notified the survivor and discussed options on how to respond. Of course, the client was devastated to have to re-engage with the case after just finishing it a few months ago. After a call with the client and prosecutor together, the client determined that the best course of action would be to draft a position that the prosecutor would include in the Governments objection. The client and NVRDC worked through the statement together and the prosecutor added the statement, in its entirety, into the opposition. The judge denied the defendant's motion, stating that the crime the defendant committed had done lasting harm, that the defendant showed no signs of having been rehabilitated in the last few months, and the defendant showed no significant health risks. While it was difficult for the client to have to engage with this at all, she was glad to have the judge read her words directly and that the judge ultimately denied the motion in no uncertain terms.