LJ 00:02

So, hello, my name is Lily Johnson from UCLA Law, a volunteer for the UCLA Law COVID-19 Behind Bars Data Project. So, before we begin, I want to start by explaining how we plan to use the conversation we're about to have. Our conversation is not legally privileged, and we will not keep what you say confidential. We plan to make transcripts and recordings of our interviews available for use by future researchers and the general public. And portions may be posted online or discussed in posts on our website and other published writings. I want our conversation to flow freely. And I realize that you may discuss a sensitive topic or mention a piece of information that you later realize you would like withheld. If you request it now, at the end of the interview, or later on after further reflection, we are happy for you to review the transcript of our conversation before it is made public and to redact any portions you deem necessary from the transcript and the recording. So yeah, if you can take it away.

ES 01:05

Should I start by introducing myself?

LJ 01:07

Yes, please.

ES 01:08

Okay. So, my name is Eva Shell. I am an appellate public defender in Maryland. So, I work for the Maryland Office of the Public Defender, which is a statewide public defender agency. I've been with that office for almost five years. I started as a trial attorney, and I transitioned to the Appellate Division a few years ago. And, so, I represent clients all over the state of Maryland. We take basically all of the appeals arising from all the different counties that aren't handled by private counsel, of course. And, so, we get a pretty broad view of, you know, the people who are incarcerated in the state. And the cases range, you know, from sort of, you know, smaller level theft cases, all the way up to murders, and life cases, and very serious prison sentences. So the vast majority of my clients are incarcerated, and the vast majority of them are serving pretty long sentences.

LJ 01:18

And, how has, since the COVID-19 pandemic started, really hit the United States in early 2020, how has your work changed? Has it shifted? Or has it really stayed its course with similar types of cases?

ES 02:32

So my, my role sort of has another prong to it that I'll discuss as well. So, I am in the Appellate Division. But we sometimes have sort of strategic litigation projects ongoing in addition to regular appellate work, and one project that I'm involved with has to do with pretrial detention. So I work with trial attorneys in my agency to try to select cases to take up to the appellate courts in Maryland, to try to get favorable law in the area of pretrial detention. So, that is an ongoing project that I've had for several years, but was not – was not in a high point before the pandemic. I would say we were in kind of a low in, sort of, the cases we were taking up. The pandemic changed that completely. So, in addition to my regular responsibilities as an appellate lawyer, I also, you know, the first thing I thought of was, you know, that project and how can we get people out of jail? And so I was, I immediately started researching those issues. People all around the country started researching those issues. It was all kind of new ground. And people were writing all sorts of habeas petitions. And I was one of those people, and collaborated with trial attorneys in my agency to file a lot of habeas petitions on behalf of people who were incarcerated pretrial, and that was a project that is still ongoing, but really was quite busy during the spring and the summer. So that was going on, and then I was still, you know, the trial courts shut down in Maryland in March of last year. And they, you know, have since reopened to some extent, but we still don't have jury trials now in April of 2021. But the appellate courts didn't actually shut down at all. They shut down their clerk's office. Records were hard to access. They didn't suspend any of our deadlines. So, as a division, we had to cope with that immediately, because we were all suddenly working from home. We, there were major aspects of our job that we just weren't able to do in the first few months of the pandemic. We had no contact with our clients for the first few months, we couldn't review court records, which, a lot of our cases are still paper records. So, it was like a kind of a standstill on our end. But the court didn't actually officially recognize that. So we had to file motions to stay all of our cases, and it was quite a, sort of, like secondary thing to be doing on top of, you know, everything else.

LJ 05:29

So, no contact with your clients?

ES 05:34

For the first and I, you know, the historical details, like I might be getting some things wrong here, but I recall that the first couple of months, it was very hard to even set up a phone call. Client contact has been a huge, ongoing problem that still remains. So, we are, you know, my clients are in department of corrections facilities all over the state of Maryland. And, before the pandemic, we, it was not ideal, but we had video conferencing technology in our office and we had it, you know, set up with certain DoC facilities that were farther away. And, so we could set up video conferences with our clients, you know, who were in prisons where it was like a three hour drive, right? And, and it just, it like, we didn't have the time to, you know, spend six hours in the car. We needed to spend that time writing the client's brief. So we would do video conferences with people who were far away. And then we would visit in person, people who were in closer facilities. And then there were, even before the pandemic, there were a couple of facilities that were really far away, but just allowed phone calls. And that was really kind of rare, but you know, not ideal, but we made the best of it. And then the pandemic hit, and we were all working from home, and the DoC facilities did not authorize any kind of video conferencing equipment to be used on our home computers until like, I mean, it was at some point in the fall, I think when now we have a couple of facilities that set up Skype calls. But it's not, it's not all of them. We are still relying on phone calls for the vast majority of our client contact. And we set those up in advance, you know, through their case managers. With some facilities, it is a fairly straightforward process, and you'll get a call within a few days. With others, we are still fighting with them to get them to set up phone calls. And we are told, Oh, just put your name on your client’s call list and they’ll call you from the (tier), like, just like, from like no confidentiality, recorded phone call. You know, it's totally, totally inappropriate. So that, that has been just an ongoing struggle. And it's been really slow to get any traction there. So yeah, in the beginning, client contact was especially difficult. And it has since, you know, it's been incrementally changed, but not a lot.

LJ 07:59

Wow. No, I can't even imagine. When, did you have to find ways to then be able to communicate with clients? Or how did you overcome that? You talk about how, like, there really wasn't anything to do, and how that maybe impacted both your client’s lives and also how you were able to work during that.

ES 08:23

Yeah, so I mean, what we did was I, I can't speak for everyone, what I did was, I sent all my clients letters right away, you know, they all, I mean, you know, the pandemic hit, they knew the pandemic hit. It's like everyone knew that everything was turned upside down, right. So they weren't surprised when I sent them letters that said, ‘Hey, you know, this just happened, I'm not in the office anymore, you know, you can try to call me. It may not go through. I'm going to try to set up phone calls with you, you know.’ It's, it's, I explained the challenges in my letters, and explained to them that the most reliable way to reach me was going to be by mail. And that that's really slow, but that I would get the letter eventually. And I would respond. And so, if nothing else, you know, that was a sure way to get ahold of me, it just would take weeks. And that's, I still tell clients that. That hasn't changed enough that I can tell them anything else really, because they're all on lockdown and don't have time to make phone calls that they used to make. So even just outgoing calls where maybe it wouldn't be a confidential conversation, but someone would just want to tell me that something happened or maybe just say, ‘Hey, I need to set up a phone call,’ that kind of thing has been limited, too. So we're like back to the days of snail mail. So that definitely, you know, impacted my clients, but I would say that they were, in general, just incredibly understanding. And you know, I represent some really lovely people and they, you know, would ask me how I'm doing and want to make sure that I'm okay and just like really kind of (astounding) stuff considering what they're going through. And, you know, I'm doing fine in my cozy little home office, and I'm not in prison. So, you know, things are okay. But, I think I got sidetracked. So that was sort of in response to, you know, how we dealt with the shutdown and communication. But I know there were more parts to your question, and now I don't remember what they were.

LJ 10:24

Uh, no, please also never worry about getting off track. That's, that's the best is when you know, you can, we can really just hear. I am curious about, you talked about work with those in pretrial, pretrial detention, and then you work with those in prison, and how that would maybe differ, the experiences during the pandemic, whether you're awaiting trial versus during your ( )?

ES 10:45

Yeah. So, um, you know, it's, it's been really… Let's see, where to start. But, I guess I'll start, one thing that, you know, so when the pandemic first hit, the first thing I was thinking was, how do we get people out of jail? Like, you know, everyone was thinking this, how do we get people out of jail? How do we get people out of prison? We know, these are like, the worst kinds of places to be in, you know, during a pandemic, and the pretrial work that I was doing, you know, I had sort of a, it was a direct offshoot of that, to start arguing COVID arguments, because I was already, we were already filing habeas petitions on behalf of people who couldn't afford their bail, you know, all the reasons why people are held illegally pretrial. And so it's, it's the same vehicle of relief, you're filing habeas petitions, that's how it works in Maryland, at least. And it's just adding an argument to that. And that, you know, that argument developed over time, but it was kind of like, at least we had a way to file something to get in front of a judge or at least get a piece of paper in front of a judge that says, ‘Hey, this is really bad, you need to do something about this.’ Now, whether or not the judges actually do is a whole other problem. But there was a really big hurdle. There still is, in the clients who've been convicted already. There's no procedural vehicle in Maryland for getting them in front of a judge in a situation like this. So we just, we don't, we, it doesn't exist. So we have a motion for modification of sentence. But that's time limited, you only have a limited time after you're convicted to file that, you know, so that, that didn't apply to most people. A habeas petition post-conviction is, it just, we didn't really have a lot of grounds for that to go anywhere in Maryland, because we have a post-conviction act that has superseded those rights in most cases. For a variety of reasons, there just wasn't, we don't have a compassionate release statute, which is what they were doing under the federal system. So I was just like, banging my head against the wall for a long time. And a lot of us, (were) you get emails from other people in the division who were like, ‘Have you thought of anything?’ Like, ‘Well, what am I missing? There's got to be some way, something we can file, right?’ And people were filing, I think things that didn't really, you know, the caption was like ‘Motion for appropriate relief,’ or like, something like, you know, please just help. But like, there's, there was no, there was really no established vehicle for relief. And, unfortunately, that's still, for the most part, the case. There's been some recent developments in Baltimore City, at trying to look at people who fall under certain categories, like, they're over a certain age. And, you know, it depends on what crime they were convicted of, like, it's kind of limited, but there is some vehicle in some part of the state now, maybe, for people to get out on COVID reasons, but it actually, nothing really was done to help that. So, you know, for my clients, I think that those in the pretrial status, I think, I mean, it varied, but a lot of them are just panicking, like, ‘I haven't been convicted of anything, I'm in this jail.’ You know, a lot of the jails are really rough. They know, it's not a safe situation to be in during a pandemic. And, you know, you know, they just, they want to do anything they can to get out, at least, you know, on behalf of those clients, we had something we could file. With my appellate clients that have already been convicted, I think a lot of them were having similar feelings, but they also, you know, a lot of them knew, like there wasn't really much of an option. And they kind of just had to stick it out. We tried to file some, you know, motions for appeal bond on behalf of people, those just went nowhere. So, you know, we kind of tried what we could, but there was just, you know, I never had anything where I could write to my clients and say, ‘Hey, I'm going to file this for you. And we're going to argue that based on the pandemic, you shouldn't be in prison right now.’ Like, I was never able to do that on their behalf for the most part.

LJ 14:49

So I'm, you say that Maryland doesn't have a compassionate release, like they have at the federal level? Is there any, so, you knew that going in, but was there anything that surprised you? Of the system, of judges, of how other public officials responded or failed to respond during COVID?

ES 15:09

Yeah, I mean, I don't know if it was a surprise, but it was definitely really disappointing. So what happened was the, there was a response from the governor, and there was a response from the Chief Judge. So the Chief Judge in Maryland issued some administrative orders early on in April of last year, and they, they provided recommendations for, you know, how to really, or how to reduce the pretrial population, basically. And so it was kind of, it was encouraging trial judges to consider COVID at bail reviews, to consider this, you know, basically, anytime they're gonna add to a carceral population, consider it at sentencing, you know, to take this into account, but it was just guidance. So the, the trial judges were just largely left to do whatever they wanted. And the results, you know, obviously, were really mixed. But as a whole, were just not, not much really happened as a result of that guidance. The governor didn't do anything with regard to people in prison and jails for a while. I think, maybe it was in May, he issued an executive order that, that like, didn't, just didn't really do anything, it was kind of the same thing. Like, he issued an Executive Order that encouraged DoC administrators to expedite people who were already eligible for parole, or who were like, already eligible for home detention or early release, but just hadn't been yet. So, and it was a very limited, all these exceptions having to do with what kind of crime you're convicted of, and, you know, just vague exceptions, like public safety and things that can just be construed to bar really, for anyone that you want, really. So that was kind of the response, you know, and the Attorney General, I think, wrote a letter at some point, you know, to the governor, you know, saying you got to do something. But from what I understand, he didn't really do anything else after that. So there were kind of people like putting on the record these statements that, you know, made it seem like, I care, and, and I, you know, don't want people to die. But there was just no teeth behind it. And there was no real action, no large-scale action. People, some people did get released early, you know, like, there were some people who benefited, but it was just nowhere on the scale that I thought would have been appropriate. And so I'm not sure if that was a surprise, but it definitely hit hard, you know, just to watch that happen and be a part of it and realize that the people who have the most control over this really weren't, they just, they weren't doing enough. They didn't do enough.

LJ 18:06

And so has this shifted, has this experience shifted your idea, perception of prison law? Do you feel differently, as an advocate? And then, a follow up to that is, do you think that things will change because of COVID? Has COVID shed a light on, on these, like horrendous conditions with the way that people are incarcerated in the United States? Or, is it just even worse, because people are just, yeah, (more) mistreated than usual?

ES 18:43

Right? So I think, on both respects, how it's affected, like my advocacy and my view of prison and, and how maybe the public, it's kind of connected in the sense that, like, things were always really bad. It’s just highlighted the worst aspects of the criminal legal system. So I mean, I – I'm personally, I'm an abolitionist. And I think I was before the pandemic, but, you know, I think it's probably just further solidified my, my views. My experience as a public defender has been that, you know, the entire criminal legal system pretty much is just, you know, a dehumanizing machine, largely exists on, you know, racist underpinnings and has incredibly racist results, and needs to be completely radically rethought. So that's, you know, I'm coming from, I guess, a pretty radical standpoint, all things considered. But, all of those failings, the dehumanizing of people, the racist implications, all of that, it's, the pandemic, has just, has just exacerbated all of those problems that already existed. I don't think it created any new issues. It is just all the same stuff. And I don't want to speak for my clients, but it is my sense that that's kind of their take as well, for the most part. You know, there were already huge problems with how people are treated in court, how they're sentenced, what prisons look like, all of that, and this is just a huge, blatant, tragic example of what the system really, like, it's, it's kind of just functioning as it was intended to function. And this is the result when you add a pandemic to the mix. So, you know, that's kind of my, my take on it is really just, I think it's just made me, you know, more, you know, angrier, and I guess, you know, just still really motivated to try to change things on a systemic level. As for whether this will change, like the view of the public, I mean, I, I know, people were talking about that, especially kind of early on were like, ‘Oh, this is like, this could be a great opportunity,’ you know, because if you largely empty out, you know, the prisons and jails and show that, like, that's okay, and that no great harm will happen, you know, if you don't suddenly hold everyone, pretrial, just because they've been charged with a crime, that maybe that could be used, you know, as support for changing policies in the future. And you know, decarcerating on a large scale. I haven't really seen that happen, I, maybe it's happening, and I'm just not noticing it. Maybe it's happening slowly, I don't know. But I haven't really seen anything to show that this has made a great impact. And I do think all the time about sort of how to get my clients’ stories out there, and you know, whether that will make an impact if people hear what it's really like, you know, what human beings are going through every day in prison during a pandemic, what that actually means. But I also just don't know. I don't know, if people you know, don't care or just don't have time to care, or don't feel empowered to do anything about it, and are just kind of going to be like, well, that's another sad thing that's happening, but what can I do? You know, and I don't really know what the answer is to that.

LJ 22:10

Yeah, um, do you, was there ever a moment that made you think, ‘Wow, this is, this is bad’? Do you have any, like a personal anecdote or thing that, just to try to tie this more into the personal, that just made you think, ‘This, like, this is for real’? There's, this pandemic’s for real, this is really, this is going to be impacting my work, this is going to be impacting my clients’ lives? And if not, that, that's fine. Just…((LJ laughs))

ES 22:43

Yeah. I mean, I think that the first like, couple weeks of the pandemic, I was like, like, pretty dazed. And, sort of, I'm not sure I did any work the first week or two, like. I know I was like, at my desk, and, you know, I, I think I was just sort of trying to digest it all and like, like, come to grips with the fact that this was huge, and everything is different, and probably will never be the same. And this was going to have a huge impact on my work. And my clients, I think, that was kind of like the initial just a really jarring, you know, like really uncomfortable, very stressful, you know, time period of coming, trying to sort of come to grips with that. And then I think I just comforted myself by trying to do whatever I could to help, right. And so that was sort of how I found solace was just, you know, keep filing these habeas petitions, keep trying to litigate these, these issues, even if like, they're not really going anywhere, because, like, it's just better than doing nothing. And that was kind of how I coped with it in addition to like, you know, other ways of coping like therapy and you know, really important mental health, you know, things but, so, I don't think there was a particular moment, but I think, like, the traumatic, like, beginning of the whole thing was, it was like kind of like being pushed off a cliff. And then there was very much the realization right away that like, everything was going to be different.

LJ 24:11

And if you don't mind me asking how would you describe your, your own personal time? During this pandemic? You've been away even away from your work but your as, as an advocate in this space working with those incarcerated I, I can imagine it, it really does encompass your life.

ES 24:31

Yeah.

LJ 24:32

Like how, how you dealt with that?

ES 24:34

Yeah, I mean, honestly, it's been really rough. Like it's been a really rough year. There's no sugarcoating it. Um, I, I've spent most of the year I think, and that this is, you know, related to my work because one of the things that the pandemic has caused, too, is less separation between work and home. I mean, I work ( ) right. So it is harder to, like, have separation from that, and, you know, have parts of your own life that you would just live completely separately from your clients and from their struggles and their cases. So, that blurring has been incredibly difficult. And then combine that with, like, just the enhancement of all of the injustices happening to my clients has resulted in me feeling, for most of the year, like I am screaming at the top of my lungs all the time, and no one can hear it, you know, like one of those dreams where it's like, you are screaming, but for some reason, it's silent. That's been the predominant feeling for the past year. And that may sound dramatic, but it's just, it's like, I can't shake it, you know? So for me personally, I mean, you know, all things considered, I'm fine, like I, you know, am healthy and functioning, and no major catastrophes have resulted. But it has been incredibly hard, it has been incredibly sad. There has been just a lot of grief. And, you know, a lot of yeah, just reckoning that I've had to do with, you know, the fact that we're all exposed to all this trauma, just based on the fact of living through a pandemic, but then, you know, by working with people who are getting the worst of it, or being treated, the worst is just a whole other level of trauma that you as a public defender, you know, you kind of I think, are always learning to deal with things like that, but that just kind of, it takes it to another level. So honestly, I'm still figuring that out. And I have, I do not have the answers. And it has not been easy at all.

LJ 26:39

So we discussed about how this will hopefully be part of the UCLA archives and looked back on when people are wanting to see what it was like being an attorney and advocating for those incarcerated during the pandemic, do you think there is something that you would like to be added to that archive and that historical narrative, whether it be something you think society should take from the impact of the pandemic, or just, as you just said, really, like, this was really hard? Um, is there anything that you want to add into that conversation?

ES 27:16

I think it's important, just to document and to recognize, what I would hope is like our rock bottom, in this, like, mass incarceration, you know, catastrophe. I don't know if that's true, this is the rock bottom, maybe it's gonna get worse. But to me, it feels like it needs to be documented that at this moment in time to be a public defender, it is like, constantly, you know, just screaming at a brick wall. That's how it feels. And we have to keep screaming, because if we don't, you know, it, you know, that's not an option to give up. Because people's lives are at stake. But it feels like all of the structures of the system are stacked against us and stacked against our clients and are incredibly unfair, feel insurmountable. And I think that, you know, during the pandemic like that, that is that has been taken to new levels, and that part should be documented, just the low that we've reached, in how we treat human beings, and what it feels like to represent people that you know, are subject to that kind of treatment should not be forgotten.

LJ 28:37

No, no, most most definitely. And as we just kind of wrap up here. Is there anything else that you'd like to say whether it be your work? It's, it's so difficult, of course, talking to lawyers and those who are in active litigation and active cases, because only so much can be shared? Yeah, if there's just anything else, I want to make sure that we miss nothing in this conversation.

ES 29:03

Um.

LJ 29:04

((LJ laughs)) We’ve done a lot we–

ES 29:06

Yeah, I'm just, I don't think there's anything else. I don't, I don't want to share anything specific about particular clients, cases, or anything like that. Obviously, you know that. So, you know, there's a world of details that kind of exist below what I'm saying in broad terms, but I don't want to reveal any of those. So I'll just leave it at the broad strokes.

LJ 29:28

Thank you. Thank you so much.