Nevada has a long and storied history of dreadful judicial campaigns, lagging perhaps only New York and Illinois in overall election dysfunction. As one relatively recent example, three years a Las Vegas judge falsely claimed the endorsement of Dwayne “The Rock” Johnson in a badly photoshopped advertisement.
The latest questionable developments come in the form of two complaints filed with the state judicial review board by current judicial candidates, alleging that some of their opponents have violated various campaign and ethics rules. The more intriguing of the two complaints alleges that Family Court candidate Margaret Pickard posted a video to Facebook in which she sat on the bench in a courtroom in an outfit closely resembling a judicial robe — intimating, incorrectly, that she was already an incumbent judge.
Ms. Pickard did not actually don a judicial robe for her ad, but her dress is strikingly similar to a judicial garment. In any event, I will let readers decide for themselves.
It’s so great to have David Lat back with a guest post at Above the Law — not only because it’s a sign that he is recovering from his serious COVID-19 scare a few weeks ago, but also because he always adds desperately needed sensibility to a blog that has become virtually unreadable since he handed over the full-time reins years ago.
Lat comments on the recent round of telephonic oral arguments at the Supreme Court, and in particular the Justices’ stringently ordered questioning. Some prominent commentators have criticized the regimented process, arguing that it prevents cross-discussion and gives to much power to the Chief Justice, who acts as the moderator. But Lat points out that a more carefully ordered structure also has its advantages, and even notes that there is ample room for some middle ground:
Evidence that the new approach promotes rather than reduces equality among the justices: the active participation of Justice Clarence Thomas, who in the past has rarely asked questions during oral argument, but who used the more orderly format to raise a number of excellent and incisive points. The old format gave an unfair advantage to the most aggressive and obstreperous justices, while disadvantaging someone like Justice Thomas, a self-described introvert, as well as the female justices, who were frequently interrupted by their male colleagues. In other words, the new format is more fair to justices who aren’t white males.
But there is, as is often the case at SCOTUS, some room for compromise. My proposal (which I previously floated on Twitter): have one round of questions moderated by the Chief Justice, where each justice gets to have a say, then devote the remaining time to unstructured questioning.
Yes. Even with an institution as tradition-oriented and “small-c” conservative as the Supreme Court, there is a good chance that some of the changes necessitated by the coronavirus will stick when the pandemic is over. Lat offers good suggestions that the Supreme Court might well wish to take into account.
Courthouses around the country are slowly reopening, with a panoply of health and social distancing guidelines. One of the most basic rules is that everyone in the courthouse must wear a face mask — a wholly sensible approach from a public health perspective. But mandatory face coverings also pose interesting new challenges for lawyers, judges, and juries, because of our reliance on facial expressions to assess emotion and credibility.
Courts are awakening to the problem, and trying to develop creative ways to permit certain participants to uncover their faces while protecting public health. One possible solution is to conduct voir dire by videoconference. Another is to cover witness and jury boxes with clear plexiglass, an admittedly second-best solution. As one Texas judge noted,
in Harris County, the courts are already installing plexiglass to protect the clerks, court reporters and bailiffs, who sit in high-traffic areas of courtrooms.
“I joke our courtrooms are going to look like a hockey rink,” he said. “We’re not putting plexiglass up around the jury box, because we haven’t figured out how we are going to conduct the jury trials. This is an issue that’s causing a lot of concern, because people sitting in the jury box are sitting shoulder-to-shoulder.”
Whatever the solution, the courtrooms will certainly feel different for a while.
Yesterday, Texas held the first jury trial to be conducted exclusively through Zoom videoconferencing. The one-day summary jury trial was also livestreamed on YouTube.
This represents a major development, given that every other jurisdiction has simply postponed jury trials until courthouses reopen. And judges are increasingly opening to the idea of remote trials in some form. On the other hand, some judges remain steadfastly opposed to trials outside the physical courtroom, and with courthouses beginning to reopen in the coming weeks, it remains to be seen how common videoconference trials will become.
State trial courts in thirty New York counties are preparing to gradually reopen starting next week. Health precautions, including entry screening, masks, hand sanitizer, and social distancing, will obviously be the norm.
A snippet from the story about the study, which was conducted by Lex Machina:
Looking at U.S. federal district court complaints filed between March 1 and May 2 that referenced keyword terms tied to the coronavirus pandemic, Lex Machina found there was a 110% spike around mid-April, according to a report released on Monday.
The pandemic has also been referenced in filings that touch on 14 of the 16 practice areas that Lex Machina tracks, and most filings cite the coronavirus pandemic as a major factor behind the filing as opposed to just mentioning the current state of affairs, according to the data.
“We found that a total of 287 cases cited COVID-19 as a reason for filing and 108 merely mentioned a COVID-19 keyword as a preface or procedural recitation,” Lex Machina said in a blog post about its findings.
Last week, the Texas appeals courts and judicial agencies suffered a ransomware attack that disabled their IT network for several days. The situation was caught quickly and state court administrators created a temporary website. Officials have stressed that no personal information was stolen, and that the attack had no effect on the courts’ use of online hearings in the wake of the coronavirus pandemic.
Georgia’s state courts experienced a similar ransomware attack last July.
Although no harm seems to have come out of this latest incident, it does underscore the vulnerability of technological networks and the potential effect on the administration of justice.