In-person jury trials to resume in Brooklyn

For the first time in seven months, Brooklyn courts will begin to hold jury trials inside courthouses. A number of safety measures have been implemented, including temperature checks, plexiglass screens, and upgraded air filtration systems.

During the last several months, a number of courts worldwide held jury trials outdoors or in large, socially distanced venues. As winter approaches (in the Northern Hemisphere, at least), trials will have no choice but to move indoors. Hopefully they prove to be safe and successful.

Judicial evaluations and the retention voter

I was interviewed extensively for this piece in Denverite about Colorado’s judicial performance evaluation (JPE) program. The primary takeaway is that voters should feel very comfortable with a program that works so hard to evaluate judges on the process (as opposed to the outcomes) of judging.

A number of states have excellent JPE programs, but not enough. Done properly, JPE benefits voters, the general public, and most of all the judges themselves. It should be part and parcel of every state and federal judicial program.

Webinar on funding for court access during pandemic

The Pew Charitable Trusts hosted a webinar last month with an eye toward helping courts and civil justice stakeholders secure funding to assist with court access during the COVID-19 pandemic. The details, including the link to the webinar recording, can be found here.

In Memoriam: Ralph Gants

Today brought the terrible news that Ralph Gants, Chief Justice of the Massachusetts Supreme Judicial Court, passed away days after suffering a heart attack. He was 65.

I first met Chief Justice Gants more than two decades ago, when he was an Assistant United States Attorney and I was his student in a white collar crime course at Harvard Law School. He was an active and encouraging teacher both in class and behind the scenes.

Justice Gants eventually moved to the judiciary, and made a clear mark as Chief Justice. His focus on attorney well-being and justice for all set the tone for the entire state judiciary. While I sometimes disagreed with his administrative decisions, I greatly admired his passion, commitment, and sincerity. He will be sorely missed.

COVID’s silent victim in the courts: traditional due process

Gothamist has a really nice piece by Beth Fertig about socially distanced trials in a Brooklyn Housing Court. Even with Herculean efforts on the part of judges and court staff, these trials are a mess. Lawyers and clients cannot sit next to each other. Entire courthouses have been deemed too small to hold any trials. Members of the public cannot view the trial because of social distancing restrictions. It just feels…weird.

The story underscores how deeply procedural fairness is built into a traditional trial. Under ordinary circumstances, trials would be open to the public and the media. Parties would sit with their lawyers and confer with them throughout the process. In jury trials, simply being in the courtroom would place pressure on jurors to pay close attention to the arguments and evidence. Lawyers would be able to confront witnesses without any fear that they are being coached by someone off-camera. There would be a strong sense of both party involvement and public transparency.

The coronavirus pandemic has forced courts to choose strategies that weaken one or both of these values. In-person, socially distanced trials allow some form of party involvement, including confronting witnesses. But they forfeit much of the transparency that benefits both the public and the parties. By contrast, videoconferenced trials are more amenable to public view, but raise problems for parties who lack the proper technology, or whose homes are more chaotic or challenging than the august, stoic nature of the courtroom.

All this is to say that the sooner we can get back to regular courtroom proceedings, the better. And in the meantime, we should be more cognizant of the due process considerations that are already so carefully built into our traditional trial structure.

Fife et al. on state Chief Justice selection

Madelyn Fife, Greg Goelzhauser, and Stephen Loertscher have posted their article, Selecting Chief Justices by Peer Vote, to SSRN. Here is the abstract:

What characteristics do state supreme court justices prioritize when choosing leaders? At the federal level, collegial court chiefs are appointed or rotated by seniority. A plurality of states permit peer-vote selection, but the consequences of employing this mechanism are not well known. We develop a theory of chief justice selection emphasizing experience, bias, and politics. Leveraging within-contest variation and more than a half century’s worth of original contest data, we find that chief justice peer votes often default to seniority rotation. Ideological divergence from the court median, governor, and legislature is largely unassociated with selection. Justices who dissent more than their peers are, however, disadvantaged. We find no evidence of discrimination against women or people of color. The results have implications for policy debates about political leader selection.

This is a useful study, in that it suggests that state high courts are choosing their chief administrative officers (who are also often the face of the state judiciary) primarily on the basis of experience and interpersonal compatibility. To which I say, good.

Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters

Back in 2014, a number of groups led by the NAACP filed a federal lawsuit in Terrebonne Parish, Louisiana, alleging that the state’s “at large” system for electing judges systematically disenfranchised minority voters, in violation of the Voting Rights Act and the Fourteenth Amendment. The plaintiffs sought to replace the “at large” system with five geographic districts which, they argued, would increase the likelihood that a non-white judge would be elected.

After a lengthy pretrial process and a highly publicized bench trial, U.S. District Judge James Brady concluded in August 2017 that the “at large” system was unconstitutional, and ordered the parties to come up with an acceptable solution involving specific judicial election districts. When the parties were unable to do so, Judge Brady appointed a special master in December 2018 to draw a new district map.

Meanwhile, the defendants (essentially the State of Lousiana, through its Attorney General) appealed Judge Brady’s decision to the Fifth Circuit Court of Appeals. At the end of June, that court reversed Judge Brady, concluding that the plaintiffs had not met their burden under Thornburg v. Gingles and related Fifth Circuit precedent. Gingles requires that a party challenging an at-large voting system on behalf of a protected class of citizens demonstrate that “(1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.” Continue reading “Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters”

Pandemic-induced court changes will remain long-term

Several courts are beginning to announce that technological changes made at the start of the coronavirus pandemic will remain for the foreseeable future. Top judicial leaders in many states have concluded that “Zoom courts are here to stay,” and are working to update their infrastructure. In addition, Ohio will continue holding webinars in lieu of court-mandated live parenting classes, and will improve the tech connection between courthouses and county jails. Meanwhile, Maine has issued official guidance for those who want to watch remote hearings, and is seeking federal funds to further update its technological capabilities.

I generally detest the philosophy of “never let a crisis go to waste,” which too often exploits catastrophes to satisfy a partisan wish list. But this is something far more organic, and the American courts will come out of this pandemic stronger and more flexible for having survived this technological trial by fire.

The intricacies of courthouse design

Law360 has a very interesting article about the design of courthouses, a task which must balance a number of overlapping and occasionally competing goals:

  • Conveying respect for the rule of law and the courthouse as the physical “home of the law” (reminiscent of Chief Justice Taft’s moniker of the Supreme Court building as the “Temple of Justice”);
  • Assuring access to justice for court users and observers;
  • Providing adequate working space for judges and court staff; and
  • Protecting the safety of everyone in the building.

The modern courthouse is simultaneously an office building, a processing station, a public space, a secular temple, a democratic icon, an entertainment complex, and a playing field. Capturing all of those needs in one building is a profound architectural challenge.

Some of the newer courthouses were designed with extra space and wiggle room to accommodate changing needs. I especially like the design of the federal courthouse in Boston (below), notwithstanding its questionable interior artwork. But older courthouses are increasingly bursting at the seams or in need of major retrofitting, and the funding may not be available.

Moakley courthouse

Interested readers should check out the wonderful, and coffee table-worthy, Representing Justice by Judith Resnik and Dennis Curtis, which tracks the history of American courthouses and the evolving goals behind their design.

The peculiar environment of reopened courtrooms

As the summer passes its midpoint, debates are raging in every corner of the country about how to approach the coming school year. Some feel that reopening schools will place teachers and students at unacceptable risk; others note that the mental and emotional damage to children from continued social isolation requires every effort to conduct classes in person. On two points, however, everyone seems to be in agreement. First, no option is particularly good. And second, even if schools do reopen, their layout, schedule, and operation will be markedly different than before.

Courts are facing the identical crisis, as their social and constitutional responsibilities to administer justice without delay brush up against their responsibilities to protect public health. And those courts that have reopened look and feel very different than they did six months ago.

This article points out some of the changes that have been implemented in reopened state courthouses. They feel at once dramatic and mundane: requiring attorneys and clients to communicate only by passing notes through a plexiglass window, holding trials in convention centers (or even fairgrounds!), and asking attorneys and judges to hold sidebars by walkie-talkie (with white noise pumped into the courtroom to avoid others overhearing). And notwithstanding these changes, the general fear of COVID-19 exposure remains pervasive.

This is all deeply unsettling, yet there may be a silver lining. Although unwelcome, the pandemic is forcing an explosion of creativity in our institutions. Some of today’s courthouse solutions may be jettisoned as soon as it is safe to do so, but I also suspect that some will prove worthy of keeping around.