In an interview with Law360, Chief Judge John Tunheim of the U.S. District Court for the District of Minnesota said that his district will continue with civil trials over Zoom even after the coronavirus pandemic no longer makes them necessary. A snippet of the interview:
Our plan at this point is to resume jury trials, and in-person hearings to the extent necessary, on May 3. All of our staff will be vaccinated and beyond the two-week period following the second shot, so we think that by May 1 we should be in pretty good shape for jurors coming in.
I do plan to continue, and urge our other judges to continue, to do as many hearings on Zoom as possible. It’s worked really, really well, and we’re still not in a position where we want a lot of people coming into the courthouse.
I think using Zoom is a very effective tool for bench trials. For jury trials it’s a little more complicated, as we know. But we have a backlog of civil cases that we’re probably not going to get to right away because of the criminal case backlog. We are, for the time being, using only two courtrooms, one in Minneapolis, one in St. Paul, both with substantial amounts of plexiglass. Only using two courtrooms makes it hard to catch up.
I expect to see much more along these lines in the coming weeks and months.
One of the main concerns expressed by lawyers and judges about courtroom cameras is that they will lead to grandstanding and obnoxious courtroom behavior. But the experience in Minnesota state courts suggests that these concerns are overblown. Using a bit of a loophole in the law — sentencing proceedings do not require assent from the parties — more media are gaining camera access to high-profile sentencings. The results have been mostly positive.
There are ample reasons to want to protect the privacy of victims, jurors, and witnesses during trial. But there are also ample reasons to make the open forum of the courtroom truly open to everyone. Video access of court proceedings is assuredly compatible with safety, due process, and substantial justice.
Today’s hearing on permitting cameras in criminal cases comes as the state’s courts and legislature split on courtroom transparency: the state supreme court has run a pilot program since 2015 and recently began live streaming its own oral arguments. But some legislators seem determined to restrict any broadcast of criminal proceedings.
Minnesota’s courts recently completed a successful pilot program to allow broadcasts of sentencing and related post-conviction hearings in criminal matters. The Minnesota Supreme Court has also shown strong support for opening its courtrooms to broadcasts in the public interest.
Some members of the state legislature, however, remain unconvinced. Yesterday, the House Public Safety Committee advanced a bill that would severely restrict the broadcast of sentencing hearings, unless everyone involved agrees in advance. The bill also would prohibit the use of state funds for audio or video coverage of criminal proceedings.
Sponsors of the bill argue that witnesses and victims may be reluctant to testify if cameras are running. That sentiment is understandable, but the bill itself is sorely misguided. Proceedings in an open courtroom reflect a careful balance between the rights and sensitivities of victims and witnesses, those of the accused or convicted, and those of the general public. Modern broadcasting tools do not upset this balance; they merely extend its reach outside the courthouse. Indeed, the current practice already prohibits broadcasts of victim statements, witness testimony, or the jury, while still permitting the public to witness the administration of justice.
Attorney Mark Anfinson, a proponent of courtroom broadcasts, nicely summarized the real benefits of the existing system: “What it does is it provides a reassurance, a catharsis, a demonstration of how the justice system works. And that has enormous value to the people whose court system it is, after all.”
Hear, hear. Hopefully the legislature will ultimately reject the bill and allow the state court system to continue serving the public interest by broadcasting certain hearings through both audio and video channels.
In 2015, the Minnesota Supreme Court authorized a pilot program to allow limited audio and video coverage of criminal proceedings in the state trial courts. The pilot ended in December, and the state’s advisory committee on criminal rules has recommended that the pilot procedures be adopted permanently. The Supreme Court is now seeking public comment on this proposal.
Comments are due by March 25, and a hearing will be held in April.
On the heels of the Oklahoma Supreme Court’s first live broadcast of an oral argument last week, the Minnesota Supreme Court has announced that it will begin live streaming its own oral arguments next week. The first live streamed case will involve a dispute between Governor Mark Dayton and the state legislature.
In a statement, Chief Justice Lorie Skjerven Gildea said the court is “committed to maintaining the public’s trust in our Court, and ensuring the openness and accessibility of our public proceedings.”
“By livestreaming our oral arguments, we hope to give more Minnesotans the opportunity to see their highest Court in action, and to learn more about how our Court considers and decides the important legal matters that come before us,” she said.
Just yesterday I noted the impact of increased case filings on state courts in Washington. The State of Minnesota has also recently experienced significant increases in filings, especially in major criminal cases and child protection cases. In response, the Minnesota legislature has authorized two new judgeships to help alleviate the burden.
The courts helped themselves in this instance by keeping careful statistics on caseload growth, which added meaningful support to their request for new judges.
On Monday, the President nominated ten individuals for federal judgeships — five on the circuit courts of appeal, four on the district courts, and one on the U.S. Court of Claims. Three of the ten (Joan Larsen of Michigan, David Stras of Minnesota, and David Nye of Idaho) currently sit on state courts — Larsen and Stras on their state supreme courts, and Nye on his state’s trial bench.
The value of state court experience for federal judges has not been discussed much, but it should be. An intimate knowledge of state law and state court operations is surprisingly useful for the federal bench. And appointing federal judges from the state courts has valuable ripple effects for the states as well. More after the jump.
Continue reading “Several new federal judicial nominees have state court experience, and that’s great news”
State legislatures continue to propose and advance bills that will impact their respective court systems. Here are some of the latest developments:
- Indiana’s proposal to convert Marion County (Indianapolis) to a merit selection system is heading to conference committee. The latest version of the bill calls for a 14-member nominating committee to choose three final candidates for the governor’s selection; four of the committee members would be chosen from voters. Previous coverage of the Indiana bill and its history is here.
- In Arkansas, a new bill would change the way state judges are elected in Cumberland County Superior Court. The current election system grants seats on the bench to the top two vote-getters among all candidates. The bill would require candidates to declare which of the two judicial seats they are seeking.
- The Florida House of Representatives has passed an amendment to the state constitution that would impose term limits on state appellate judges, including supreme court justices. This is a terrible idea, but happily it is still in its infancy. The state senate would also have to approve the move, and then voters would have to approve it in 2018. Similar efforts in others states have been defeated in recent years after they were exposed for the transparent political proposals that they were.
- Nebraska’s unicameral legislature has advanced a bill to raise judicial pay in the state.
Judge Dale Harris has an op-ed discussing his first experience with cameras in his courtroom, stemming from Minnesota’s pilot project to allow recording of certain sentencing proceedings. It’s a usefully honest take:
There is not much of a question in my mind that the cameras had some effect on the participants. I could tell I was measuring my words more carefully than usual, and I am pretty sure the attorneys were as well. Although most court proceedings are open to the public, human beings just tend to act differently when they know they are on camera. It is also hard to pull out a couple short clips that accurately depict a complex hearing. Those are the primary reasons I was not a fan of the pilot program.
For those of us who work in the courthouse every day, however, it is probably too easy to take familiarity of the judicial process for granted. Many people never see the inside of a courtroom, so having this type of access through the media might provide some insight that those people would not otherwise get. The media is merely responding to that perceived need.
As a government entity, the court system always has to strive for greater transparency. The question in the near future, as the pilot project is evaluated, is whether these benefits amount to a net gain. If the answer is “yes,” then I fully would expect the pilot program to be expanded to more types of court hearings. Stay tuned.
Cameras probably do have some effect on participants, just as a live audience would. But if the end result is a sentencing characterized by more measured words and a careful tone, the cameras pilot should indeed be considered a success.