Defense attorneys seek to protect clients

Court trials in Delaware may have been suspended to help stop the spread of COVID-19, but defense attorneys have been hard at work trying to protect clients who may be at risk but are currently in prison.

“I’ve been a criminal lawyer since 1975 and I’ve never seen anything like this,” said Brendan O’Neill, head of the state’s Office of Defense Services, the main branch of which is the Public Defender’s Office.

O’Neill said his office, which represents 85 percent of the criminal defendants in the state, have been filing motions to reduce bail for clients in jail awaiting trial. He said the office has identified these clients as being health risks should they contract COVID-19. 

“We have a lot of concern for these clients,” O’Neill said. “We’re trying to get them out.”

These clients are all nonviolent offenders with bail set high enough that they cannot pay for it, O’Neill said. By filing motions to reduce bail, he said, it gives these clients a better chance to get out of jail while awaiting trial. 

In other instances, O’Neill said, the office began working with the state Department of Corrections and Parole Board to reduce sentencing for clients who are close to the end of their sentences and were convicted of a nonviolent crime. He said the Department of Correction has expressed interest in working on this. O’Neill said defense attorneys can file motions to reduce sentencing as well if they can prove the person should be released given “extraordinary circumstances.”

“In our view, this is an extraordinary circumstance,” he said.

O’Neill said the office has been more successful in getting reduced bail motions approved than trying to reduce sentences. 

Georgetown attorney Chris Hutchison said the Department of Justice has been favorable to reduced or favorable bail terms to keep people out of the jails. He said reducing sentences is a bit more tricky, as he has to go through person by person to identify candidates who may be appropriate. Generally the best candidates are those who are on short sentences, a year or less for nonviolent offenses, such DUI or drug offenses, combined with good behavior.

For clients in work release programs, Welsh said one option he has explored is asking for a sentence modification to allow for home confinement, since the client has lost their job or been furloughed. He said another option is to modify the sentence to probation with GPS monitoring so the courts can track the person’s movements.