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.

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.

Scotland will hold jury trials in movie theaters

Courts across the world are continuing to think creatively in light of the ongoing COVID-19 pandemic. Some Scottish courts will now be holding socially distanced jury trials in movie theaters, where the 15-person juries can spread out, watch the presentation of testimony and evidence on the big screen, and then deliberate in person.

This follows similar efforts in the UK and US to use large open spaces for trials, including fairgrounds and convention centers. While we all look forward to the day when trials are back in a proper courtroom, the efforts to keep the wheels of justice turning are surely praiseworthy.

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.

ABA passes resolution on remote court proceedings

The American Bar Association House of Delegates has passed a resolution regarding the use of remote proceedings. The resolution attempts to balance the courts’ need to move forward with their dockets, parties’ entitlement to due process, and the public right to access. Some key points:

FURTHER RESOLVED, That the American Bar Association urges that any authorization of mandatory use of virtual and remote court proceedings during the COVID-19 pandemic continue for as short a time as possible and in no event longer than the duration of the declaration of emergency issued in the jurisdiction;

FURTHER RESOLVED, That the American Bar Association urges that use of virtual or remote court proceedings be permitted when litigants have consented to the use of such procedures, including being offered a delay until a safe, in-person proceeding can be held;

FURTHER RESOLVED, That the American Bar Association urges that all virtual or remote court proceedings be tailored to the needs of participants and take into account the type of case and proceeding to be conducted, the participants involved, and whether participants are likely to be represented by counsel…

FURTHER RESOLVED, That the American Bar Association urges that advance notice be provided to the public of all virtual or remote proceedings and that full and meaningful public access to such proceedings be guaranteed, while also protecting the privacy of those proceedings legally exempted from public access…

The entire resolution can be found here.

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 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.

Coming soon to your local fairground: jury trials?

Court administrators have had to act nimbly during the entirety of the coronavirus pandemic, in order to balance public safety with the requirements of due process. Now, some county courts in Oregon are considering yet another creative solution: holding jury trials at local fairgrounds in order to meet the requirements of social distancing.

The fairgrounds are already owned by the respective counties where trials might be held. They are easy to get to, have ample parking, and offer wide-open and largely unused buildings, making them an attractive option for courts. Still, there are many logistics that have yet to be worked out:

So far in Deschutes County, court officials have developed lists of what will be needed at the fairgrounds. On the to-do list is to look at the costs of renting tents and other furnishings like chairs, tables, maybe a riser to put a bench up on.

Heating, air conditioning and restrooms will be needed to keep people comfortable, because jurors need to be focused only on listening to the evidence, Ashby said. Secure and private rooms are needed for lawyers to meet with clients and jurors and judges to deliberate. Boxes and boxes of computer and recording equipment must be relocated and tied in with the county IT system and the fairgrounds PA system. Security is another primary concern.

“Our number one priority is making the courthouse as safe as humanly possible,” Ashby said. “Competing with that are statutory timelines, which require us to try cases, the most pressing of which are in-custody criminal defendants.”

Plans like this are born of necessity, but it will be fascinating to see what courts learn from the experience, and how some of these options might influence court administration after the pandemic subsides.

Making sense of the recent Congressional testimony on courts and technology

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”

The challenge of reopening courts

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.