When the pandemic forced attorneys to present their cases remotely, courtroom members had little time to adapt in-person practices to online platforms. Some changes were glaring, like the court’s inability to ‘all rise’ remotely.
Others were smaller but still consequential: sitting behind separate screens, clients and attorneys could no longer whisper to one another — a loss that Howard ‘Rex’ Dimmig, the public defender for the 10th Judicial Circuit of Florida, said conveys the disadvantages of virtual court proceedings.
“When they’re talking on a virtual platform where dozens of people are listening, or if they have to say, ‘Wait a minute, I need to take a break to talk confidentially with my attorney,’ they’re not inclined to do that,” said Dimmig, who serves as the president of the Florida Public Defender Association.
“The quality of communication is impacted.”
Fifteen months have passed since Florida Supreme Court Chief Justice Charles T. Canady issued an administrative order temporarily suspending grand jury proceedings, jury selection proceedings, and criminal and civil jury trials, later instructing judges to facilitate court proceedings “with the use of technology.”
Across the country, judges and attorneys, plaintiffs and defendants suddenly found themselves scrambling to adapt to platforms designed for corporate meetings and college classes.
As in-person proceedings begin to resume, lawyers are reflecting on the long-term viability of virtual proceedings. While some remain skeptical that technology can reproduce the right to fairness legal cases require, others cite the benefits: convenient appearances, cheaper costs and, in some cases, increased accessibility.
Pandemic, Pile-up and Virtual Proceedings
Victor Plantinga, a criminal defense attorney who primarily litigates in the federal courts in Wisconsin and Illinois, said remote proceedings have saved money and time. Prior to the pandemic, presenting a motion for civil cases in the Northern District of Illinois, for instance, required Plantinga commute from Miluakee to northern Illinois for a “three minute” appearance — an endeavor virtual proceedings have eliminated, he said.
“This is on the taxpayer dime. It was a great expense to have someone who can bill for travel,” Plantinga said.
“So, in some ways, I think COVID has made us rethink how we’re going to do that going forward. I can’t speak for the judges, but it certainly makes sense to keep some of those remote appearances.”
Remote appearances have happened against the backdrop of a massive case backlog. Most courts postponed jury trials, leading to a case buildup with years-long consequences.
In Texas, a pandemic-induced backlog could last until 2026, with David Slayton, the Administrative Director of the Texas Office of Court Administration, estimating that the number of jury trials plunged in the state from 168 each week to four.
Texas courts have conducted two million remote hearings since March 2020, he said, lessening the backlog of civil and family cases. With attendance up among parties and prospective jurors, judges are seeing fewer default judgements and more racially diverse juries, he added.
“Remote technology and remote appearances remove barriers to court participation that we didn’t really even know existed prior to the pandemic,” Slayton said.
But as delayed criminal cases accumulate, the backlog carries the most consequences for criminal defendants, many of whom are “sitting in local jails where there’s no programming available, basically under the worst conditions” for up to two years before their trials begin, Plantinga said.
As jury trials resume, he expects courts will prioritize criminal trials (“which they should,” he added), tipping the scales and setting civil cases behind.
“There’s so many of those trials that are stacked like cordwood,” he said.
The (In)accessibility of Online Court
Like most spheres that have shifted online, the judicial system hasn’t been spared from hiccups, video-call accidents and viral moments. After he was unable to remove a kitten filter from his profile during a virtual hearing, a Texas lawyer was forced to clarify to a judge, “I’m not a cat” in a clip that animated Twitter.
In one of the limited juror selection processes Texas courts conducted, prospective jurors in Harris County were caught applying makeup, playing video games, driving, sleeping and vaping on Zoom.
Dimmig said he’s seen people napping during virtual proceedings, adding that many clients have appeared “in, to put it politely, very informal ways.” Informality isn’t the only issue: technological inaccessibility has hampered proceedings for many of Dimmig’s clients, particularly those who are incarcerated or living in rural areas.
When clients can’t access two devices — one to connect to court proceedings and another to communicate with attorneys — attorney-client confidentiality suffers, he said.
Slayton cited the flipside: courts have aimed for accessibility by inviting people to courtroom kiosks designed for remote appearances and distributing iPads equipped with cell service — efforts he hopes will stick. Technology, he said, has enabled people to appear in court without scrambling for childcare, transportation or time off work.
“If you’re a long haul trucker and you need to appear in court today, if your normal route would have you in Kentucky today — obviously that’s not possible in a normal in-person appearance,” Slayton said. “But with remote appearances, you pull over on the side of the road and you log in and you’re in court.”
Although Plantinga said some court appearances should remain online, he said he prefers in-person proceedings for certain circumstances, like sentencing. In the pandemic’s early months, defendants could choose to attend sentencing hearings remotely or delay the date indefinitely. Most defendants chose virtual hearings.
But Plantinga said he doubts defendants had a genuine choice. “Is it really a free choice when you know the alternative is a big unknown?” he asked.
He said he suspects in-person sentencings are more advantageous for defendants.
“I like in person sentencings because I think it humanizes the person a lot more than seeing some disembodied head on the screen,” he added.
Are Face-to-Face Hearings History?
As courtrooms and law firms reopen, it’s likely that courts will embrace a mix of in-person and online proceedings, though most attorneys doubt that courts will ever adopt virtual jury trials for criminal cases. In a February article for the American Bar Association, New York attorney Phillip C. Hamilton wrote that virtual jury trials introduce a host of constitutional issues.
“American courtrooms, by their very nature, are physically constructed from the blueprint of the Sixth Amendment,” Hamilton wrote. “Without question, it is highly doubtful that the framers ever envisioned government witnesses testifying via Zoom or Microsoft Teams.”
With respect to liberty interests, parties deserve an effective defense, said Adam Plotkin, the Legislative Liaison for the Wisconsin State Public Defender. “But to provide an effective defense you need to see those people in person.”
Plotkin added that if a court issues a sequestration order barring a witness from viewing the proceedings, it’s nearly impossible to ensure that witness doesn’t access the broadcast. It’s also difficult to discern if a witness, testifying remotely, is “being coached or prompted or even threatened,” he said.
Slayton said officials should consider adopting virtual jury selection, citing its high attendance rates during the pandemic. Dimmig, though, said the inevitable introduction of technology into the courtroom should be handled with caution.
“A scheduling matter can probably be handled remotely, but anything that addresses fundamental rights — that, in my opinion, has got to stay in person, so that there can be effective justice administered,” he said.
“I do think we’re going to see an expansion in the use of technology, but expanding technology cannot be the goal. Improving access to the courts while ensuring fundamental due process has got to be the goal.”
Eva Herscowitz is a TCR justice reporting intern. She welcomes comments from readers.
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June 28, 2021 at 07:42AM