Category: court administration

Courthouses continue to open, carefully

As communities across the United States slowly reopen for business, courthouses are following suit. Extensive precautions and protocols are in place. I have periodically tracked how some court systems have begun their reopening processes, and here is one more: New Mexico resumes jury trials with masks, plexiglass, and cameras.

If these stories seem repetitive, it is only because I am trying to capture a taste of a very unusual time in our history. Many of the lessons to be drawn from this experience will only emerge after a period of reflection and analysis.

 

Federal courts issue guidance for reopening, including conducting jury trials

The federal courts’ COVID-19 Judicial Task Force released a detailed report on Wednesday, containing recommendations for conducting jury trials and convening grand juries during the coronavirus pandemic. This Bloomberg Law piece provides a bit of additional context.

The report relies on guidance from the Center for Disease Control, and acknowledges that district courts may be ready to open, and open more fully, at different times during the next few weeks. It is a careful, detailed, and thoughtful report. It also illustrates the complex issues that virtually every organization — public or private — is facing right now regarding reopening: cleaning, social distancing, virus screening, transparency, scheduling, travel safety, and so on. Ask any school administrator, business owner, local bureaucrat, or public official, and you’ll hear about the same predictive difficulties.

The bottom line: courts are navigating this crisis just like the rest of us. Preparation is essential, but only time will provide real clarity.

 

Federal courts grapple with resumption of grand juries

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.

Massachusetts courts embrace virtual hearings

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.

In New Jersey, backlogs and judicial vacancies strain a court system

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 courts to pilot civil jury trials by videoconference

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.

Singapore court sentences defendant to death via Zoom

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)

 

States Cannot Prefer Graduates of Their Own Law Schools for Bar Exam Seats

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”

Lat on Supreme Court telephonic arguments

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.

Face mask requirements pose a new challenge as courts reopen

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.