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.
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”
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.