In Stalled Criminal Trial, a Call for COVID-19 Tests to Protect a Defendant and His Lawyers

SAN FRANCISCO—What do you do when a global public health crisis interrupts a federal criminal trial?

U.S. District Judge William Alsup of the Northern District of California had to grapple with that question at a hearing Wednesday afternoon in the case involving Yevgeniy Aleksandrovich Nikulin, a Russian man charged with hacking into computers belonging to Bay Area tech companies. Chief among the judge’s frustrations was that the jail where Nikulin is being housed does not currently have any tests for the COVID-19 virus.

The trial was originally set for court days this week before “shelter in place” orders from six Bay Area counties at least temporarily derailed the proceedings. Alsup on Wednesday granted a defense request to push out the potential date to restart the trial to April 13, after the local restrictions are currently scheduled to lift. But the judge expressed concern for the defendant, who will be forced to stay in custody, and his lawyers, who will need to visit him in prison to prepare for the restart of trial. Alsup told federal prosecutors what he would have said upon hearing about the lack of tests: “For Christ’s sake we’ve got a trial going on out here. Can’t we get at least enough test kits to ensure that the defendant is healthy?”

Alsup asked prosecutors to do everything they can to make sure Nikulin is tested multiple times during the delay.

“I have a concern that the defense lawyers are put under extra burden of having to go to jail with a high concentration of people and to talk with their client,” Alsup said. “That could be dangerous for them, their families and we need to spare them that extra layer of risk if we can.” It’s not just the situations on the ground in the Bay Area causing disruption for Nikulin’s trial. In their court papers asking for a continuance, Nikulin’s lawyers Adam Gasner and Valery Nechay noted that a Secret Service agent set to be called as a witness for the prosecution had indicated that he had possibly been exposed to the coronavirus through contact with a person exhibiting symptoms.

Alsup asked prosecutors Wednesday for an update on the test results on the person the witness was in contact with and the health of the potential witness himself. Assistant U.S. attorney Michelle Kane responded the government hadn’t received word of the test results, but that the contact’s symptoms had subsided and the agent witness had not shown any symptoms of the virus.

“That’s good as far as it goes,” said Alsup, but he added that it didn’t go far enough.

The hearing came as the court has closed all courthouses to the public and suspended new civil and criminal trials until May 1. The Nikulin trial, which began March 10, was two days into testimony when the Northern District issued two general orders Monday signed by Chief Judge Phyllis Hamilton, the same day six Bay Area counties asked residents “shelter in place” to slow the spread of coronavirus.

Alsup previously issued an order suspending the trial and reached out to jurors to ask about any hardships they might have if the trial were to continue later in the week or after the local shelter in place directive, currently set to run through April 7, is lifted. The judge indicated that out of the 12 jurors and four alternates, nine people had responded. He said about two-thirds of the respondents said they could continue on the jury, and about a third expressed what looked like legitimate hardships. He said those responses meant there would be a risk that there wouldn’t be enough jurors to proceed, but that it was worth trying.

“I think there is a fighting chance that we can salvage this as a fair trial,” Alsup said. “I think we should give it a shot and see if we can do it.”

But the judge added that he would like to put the returning jurors through voir dire again, to make sure they can remain impartial.

U.S. District Judge William Alsup, of the Northern District of California.

Nikulin’s lawyers made two additional requests on the plaintiffs behalf near the end of Wednesday’s hearing. They asked in light of increased solitary confinement in the jail during the health scare and the trial delay if they could provide their client with a game console, specifically one that cannot connect to WiFi given the nature of the allegations against him. They also asked if he could stay in the courthouse long enough to eat a cheeseburger they purchased him for lunch. Alsup granted both requests.

As the hearing concluded, Alsup said, “Mr. Nikulin enjoy your cheeseburger.”

The extraordinary nature of the hearing was underscored by the fact that Alsup himself opened the locked courtroom doors prior to Wednesday’s hearing for two journalists waiting to cover the hearing. “That’s a first,” said MLex correspondent Mike Swift.

“Extraordinary times,” the judge replied.