As courthouses across the country slowly begin to reopen, individual federal district courts are wrestling with the best way — if at all — to convene grand juries for criminal cases. Bloomberg Law has a good article exploring some of the approaches that different courts are taking. Among them: holding grand jury proceedings in the courthouse with social distancing, holding proceedings entirely online, and simply waiting to convene grand juries until the situation improves.
Each approach obviously has strengths and weaknesses. There are the obvious health concerns about bringing people into a building. But there are also important countervailing considerations. Purely online proceedings may not allow for a fair cross-section of the community, since essential workers and those without adequate internet access (among others) may not be able to participate. At the same time, simply waiting for the pandemic to subside is inconsistent with the efficient administration of justice. As time passes, memories fade and witnesses become harder to find.
So there is no simple answer here. But a system in which courts have the discretion to tailor their approaches allows court leaders to collectively learn from their successes and setbacks.
The New Jersey Globe has put together a useful series of articles on gubernatorial appointments to the state supreme court since 1947. Garden Staters and those interested in the court’s history (and its political dimensions) should take notice.
Alfred Driscoll’s First Seven Picks
The Meyner Court
The Cahill Court
The Byrne Court
The Kean Court
The Whitman Court
The McGreevy and Corzine Courts
The Christie Court
Kansas’s senate has rejected Governor Laura Kelly’s nominee for an opening on the state court of appeals. Carl Folsom, a longtime public defender, experienced appellate advocate, and adjunct professor at the University of Kansas School of Law, was turned down on a close vote, on the grounds that he lacks civil litigation experience.
Give me a break. Folsom is well-respected and highly experienced in both the criminal and appellate arenas. He is familiar with the very court for which he was nominated, having argued many cases before that court over the years. His lack of direct civil experience is a non sequitur — he certainly appears capable of filling that knowledge gap. Unlike a trial court, where a judge must make snap decisions regarding procedure and evidence, and where prior experience is absolutely essential, an appellate judge has a bit more time to educate himself and ruminate on the issues.
This is plainly a political move, brought on by a conservative senate at war with a Democratic governor. GOP Senators were likely disturbed by the fact that Folsom had donated money to Kelly’s gubernatorial campaign, and had advocated for some traditionally liberal issues. But so what? Folsom is a private citizen and is entitled to support his favored candidates and causes. There is nothing I have seen to suggest that he would not perform his judicial duties fairly and honorably.
Courts suffer when the other branches of the government play politics with judicial nominations. The people of Kansas deserve better than this transparently political ploy.
Law360 has a good, general article on how the courts in Massachusetts are embracing virtual hearings in light of the coronavirus pandemic. This segment struck me as particularly interesting:
Like most jurisdictions, Massachusetts has embraced virtual hearings. It’s a development that [U.S. District] Judge [Dennis] Saylor, who took over as chief judge in January, is pleased to see.
“One of my goals was to try to drag the court into the 21st century in terms of video and telephone conferences, and a lot of my colleagues, both locally and nationwide, have been reluctant to do anything over the phone or by video,” he said. “One of the most expensive and problematic things about practicing law is getting in your car from Danvers or flying to Kansas City for a five-minute status conference.
“A silver lining in all of this is we have rapidly developed not only our video capabilities, but also people’s comfort with it, because no one has any choice.”
I have heard similar comments from state judges across the country, and it seems inevitable that certain types of minor hearings will be held via videoconference even after the pandemic ends. As Chief Judge Saylor notes, this is a very good thing.
The bigger question is how the courts will address the right of public access to court proceedings in the context of videoconferencing. There are legitimate concerns about whether the current technology is well-equipped to incorporate public access, but the larger issue will not–and should not–go away. The court systems that take the lead on integrating public access into videoconferencing will be particularly well positioned once the pandemic subsides.
A snippet from a fascinating Law360 article, which notes that a temporary ban on jury trials combined with a judicial vacancy rate over 10% does not bode well for access to justice in the Garden State:
“My fear is the backlog of trials … whenever jury trials start again, is going to require so much attention from the judges that it’s probably going to have an effect on how other matters proceed in terms of motions and things that normally would be getting done sooner rather than later,” said Keith McDonald of Norris McLaughlin PA.
Florida’s state court system is creating a pilot program to hold civil jury trials via remote technology. Up to five trial circuits across the state will participate.
This is a nod to ongoing concerns about reopening courthouses, but it also creates the possibility of some jury trials remaining fully online even after the pandemic subsides. The more experience that courts have with remote trials now, the more they will be able to assess the strengths and weaknesses of remote trials going forward. This pilot program will be worth watching carefully.
Courts worldwide are using videoconferencing technology for a wide range of proceedings during the coronavirus pandemic, including (in some instances) trials. And disturbing new ground was broken this past week, when a judge in Singapore sentenced a defendant to death by remote video. The defendant had been found guilty of participating in a drug deal, and Singapore has a zero tolerance policy when it comes to illegal drugs.
This is probably not the place or time to reflect on Singapore’s draconian criminal laws and sentencing practices. But regardless of where one falls on the capital punishment debate, there is something especially dehumanizing about receiving a death sentence through a video screen. The judge (or jury) should have to look the defendant in the eye–face to face–when assessing such a punishment.
American courts have been experimenting with Zoom sentencing, and in fact a federal district court is scheduled to sentence a white collar defendant by videoconference on June 4. But that defendant is based in France and is hoping to avoid prison time altogether; it is night and day when compared to the Singapore sentence.
(h/t John McCarthy)
A guest post by Lawrence Friedman
As state bar examiners attempt to navigate the administration of this summer’s examination through the challenges posed by the novel coronavirus, some – including New York and Massachusetts – have attracted no small amount of attention by seeking to give priority placement to graduates of in-state law schools. Writing in Justia, Dean Vikram David Amar has argued that such restrictions are unconstitutional because they violate the dormant commerce clause. I have no quarrel with his analysis and here simply anticipate, and respond to, another potential argument defending a preference for in-state law school graduates.
Under the dormant commerce clause, states may not expressly prefer in-state businesses to the disadvantage of their out-of-state counterparts. As Dean Amar notes, the policies embraced by states like New York and Massachusetts, which “explicitly treat all in-state law schools differently than all out-of-state law schools,” effectuate clear discrimination between local and out-of-state interests.
When state rules affirmatively discriminate against interstate commerce, they are subject to demanding judicial scrutiny: as the Supreme Court explained in Maine v. Taylor, the state must carry the burden of demonstrating both that the rule serves a local purpose that is effectively compelling, “and that this purpose could not be served as well by available nondiscriminatory means.” Continue reading “States Cannot Prefer Graduates of Their Own Law Schools for Bar Exam Seats”
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.