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.
On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.
The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.
Continue reading “Making sense of the recent Congressional testimony on courts and technology”
A number of recent news stories have emphasized the reluctance of many white-collar workers to go back to the office, even when their places of business are authorized to reopen. Extensive safety precautions, combined with the ability of many employees to work effectively from home, has even led some to proclaim the death of the modern office.
As admirable a job as courts have done with videoconferencing during the coronavirus pandemic, they do not have the same luxury of transitioning everyone to a long-term work-from-home arrangement. And so courts are reopening around the country. And they are finding difficult challenges in front of them. Safety and social distancing guidelines means that there is less space for observers and unsettled questions about enforcement of safety norms. Returning judges and attorneys are also facing heavily backlogged dockets and the further postponement of trials and hearings. It will require patience and creativity to get things back on an even keel.
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.
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.
The Rio de Janiero State Court in Brazil will begin prosecuting corruption cases through special “faceless” courts designed to hide the identity of the presiding judges. It is the seventh Brazilian state to implement such a system. The change is coming after more than twenty judges received police protection from death threats by gangs and organized crime.
Under the new system, three judges will rotate every sixty days and all decisions will be signed by the principal judge. Variations of the system were used to protect judges in Colombia in the 1990s.
This is obviously an extreme development, and the safety of the judiciary must be taken seriously. But it comes at a serious cost — the accused will not be able to know the identity of, the very person who will be condemning them to prison (or worse). It’s a dark moment for everyone when due process must be diluted for the sake of judicial safety.
Some are glorious temples to the administration of justice. Others are originally built as school buildings, retrofitted to house courtrooms and judges’ chambers, and must combat mold, crumbling walls, and occasional gunfire. The Tampa Bay Times offers an insightful report on the challenges faced by Florida’s 2d District Court of Appeal in their substandard building, and the resource allocation issues underlying their request for new quarters.
In the wake of the shooting of state judge Joseph Bruzzese on the steps of the Steubenville courthouse in August, the Ohio legislature has introduced a bipartisan bill to shield judges’ personal information from the public. The bill is still in its very early stages.
It is not hard to see why a bill like this might be necessary, but that realization is tinged with sadness. Judges are most effective when they are full members of the community, enjoying the same pleasures (and suffering the same indignities) as ordinary citizens. Grocery shopping, attending community events, waiting in line at the DMV, and similar activities foster an appreciation for everyday life that a judge needs to be an effective mediator, problem-solver, and voice for the community. When our judges are too cut off from the public, or exist in elite bubbles, they cannot have that effectiveness.
The benefits here of keeping a judge’s personal information from the public may well outweigh the costs. But we should be careful not to create a slippery slope in which the public and its judges lose critical opportunities for normal, everyday interaction.
Following a surge of acid-throwing attacks across the United Kingdom, courts across England and Wales are asking visitors to take a sip from any bottles they bring into the courthouse. There are already reports of long security lines at one courthouse that has implemented the new policy.
In an order issued by Chief Justice Mark Cady, the Iowa Supreme Court yesterday banned firearms from all courthouses and justice centers in the state. The statewide regulation does not extend to law enforcement officials who are on duty in the buildings.
Although about half the counties in Iowa already restrict or ban weapons in courthouses, the Supreme Court rule creates a uniform statewide regulation.
Cady said in the order said that while the weapons policies were implemented to make the courtrooms safer, they have “failed to provide uniform protection across the state and throughout every courthouse.”
He acknowledged implementing a statewide weapons policy and the issue of restricting weapons is difficult, and this becomes more complex because city and county offices are within many court buildings. But he added it’s the court’s “constitutional responsibility” to make these buildings safe “before history records more acts of courthouse violence.”