The First Circuit Court of Appeals has rejected an appeal by Massachusetts state judge Shelley Joseph, claiming that it is premature. Readers will recall that in 2019, Judge Joseph was charged in federal court with obstruction of justice, after she allegedly helped an illegal immigrant avoid an ICE agent who was waiting in her courtroom to arrest him.
In federal district court, Joseph moved the dismiss the charges on the grounds of “absolute judicial immunity.” The district judge declined to dismiss, and Joseph appealed. But the First Circuit held that the appeal was premature because the trial court’s ruling did not operate as a final decision on the merits.
Interlocutory appeals — those taken up before the substance of a case is decided — are rarely granted, and there is no particular reason why this case should be an exception. As the First Circuit noted, even if Joseph can invoke judicial immunity as a defense, such immunity “does not provide a right not to be tried.” The case will return to the district court for further proceedings.
What will court proceedings look like once the coronivirus pandemic has run its course and society reopens in earnest? Already, courthouses are reopening for jury trials and hearings — a critical step for transparency and due proces. But as Judge Jack Zouhary explains at the IAALS Blog, videoconferencing is not going away. Rather, the courts will likely use videoconferencing for appropriate proceedings — everything from status conferences to settlement discussions.
The expectation of continued videoconferencing is welcome, but it is just the beginning of a larger transformation. The ongoing ability to access the courts through Zoom raises important questions about recording hearings, public transparency, the use of video for purposes of judicial performance evaluation and appeal, and so on. Put differently, new challenges are on the horizon. In the meantime, we are witnessing the true birth of America’s twenty-first century court system.
That’s the question posed in this excellent article from Law360. A snippet:
Lawyers who engage in virtual trials need to anticipate that eventuality and do everything they can to minimize errors that can occur because of technology, as well as preserve their objections properly and quickly during virtual proceedings, [attorney Carl] Guthrie said.
“We should always be one step ahead and prepared for what happens … if an appellate court does look at it,” he said.
Courts that have been broadcasting their proceedings usually include a warning that recording is prohibited, but those warnings aren’t always heeded. One example is the recent viral video of the lawyer who was unable to remove a cat filter and told a court, “I’m not a cat.” The video preserving that moment included in black and white font a prohibition against recording.
But more broadly, Guthrie said that in virtual proceedings, evidentiary gaffes are some of the easiest to make — and can be the most damaging. Accidentally showing exhibits to jurors before they’ve been admitted by the judge, for example, is an easily reversible error, he noted.
Virtual hearings and trials are assuredly here to stay, at least in some form, after the pandemic subsides. It’s good that lawyers and judges are getting out in front of these issues.