Sunday, April 19, 2020

Protecting rights as court proceedings move to the virtual world

Monitoring court hearings has become difficult, in some cases even impossible, for dozens of court watch programs scattered throughout cities and towns in the country. They rely on volunteers to sit in open court and take notes in the interest of transparency and accountability. But they said their access has been slowed or halted as virtually every system in the country suspended or reduced public court and moved online during the pandemic, reported The Marshall Project.
In New York City, anyone wanting to see a hearing has to go to the courthouse and watch on a screen there, possibly risking contagion. In Los Angeles and Miami, officials have not given court watchers a way to join their courts’ video conferences. In New Orleans, access has depended on individual judges, with some being more reliable than others.
It’s not just a matter of convenience, the court watchers said. Public trust in what happens in court is eroded when they—or anyone else—can’t witness it, they said, and their presence helps ensure the courts function as they are supposed to.
“What we've seen over the past few years is that our presence really does matter,” said Zoë Adel, a lead organizer with the New York City court watch. “It changes people's behavior—judges set lower bail—when they know court watchers are watching and they're being held accountable.”
To be sure, most judges and court administrators have had little choice but to close courthouses under state orders or health guidelines aimed at slowing the virus. To be able to conduct hearings that can’t be postponed, they are joining many other Americans in adapting quickly to online platforms many had never used before, leading to technical problems. As NPR reported, other public meetings that used open online conferencing have at times been targets of harassment.
“This was the first time we've done Zoom proceedings, and we rolled it out fast,” said District Court Judge Keva Landrum in New Orleans, referring to a popular video conference platform. She said judges wanted to make sure it would work before finding out how to allow public access. “Now that it has been going well and judges are more settled with it, I think judges will be increasingly willing to provide access to interested parties,” she said.
Shortly after speaking with Landrum, The Marshall Project was granted access to observe a magistrate court session on Zoom, and faced no difficulties following along. On Saturday, Landrum provided access to Court Watch NOLA moving forward.
The move from physical court to online conferencing got a boost in the CARES coronavirus stimulus act, which allows the historically camera-averse federal judges to use video for some hearings during the national emergency. But the hastily written law left out language guaranteeing public access to those video proceedings.
On state and local courts, access has been spotty as each court comes up with its own rules on the fly, court watchers said.
The shift is happening so rapidly that legal observers are still largely playing catch up. Douglas Keith, counsel at the Brennan Center for Justice, a progressive advocacy organization, said the group was still piecing together the constitutional questions that video court proceedings might raise.
“How will remote hearings affect the quality of representation in criminal cases, and the ability of defendants to speak to their lawyers with the frequency and privacy they need? How will appearing on video affect the jury’s and judge’s view of a defendant?” he said, to name a few.
Keith noted that in the 1984 case Waller v. Georgia, the U.S. Supreme Court declared public trials to be “essential” for the people accused because “the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.”
Public access to the courts is particularly important during disasters, said Simone Levine, executive director of Court Watch NOLA in New Orleans.
"When a community is in an emergency, the community's fear and distrust of public agents and officials increase and in these times it is integral that public officials increase their transparency,” she said.
The New York City program, organized by some public defenders, the grassroots VOCAL-NY group and the Brooklyn Community Bail Fund, focus on first appearances, when judges typically decide whether a recent arrestee will be detained pretrial or allowed to go home. They’ve fully stopped observing courts in the midst of the city’s stay-at-home order. That concerned Adel, “especially at a time like now where, if a judge sets bail, or someone is otherwise incarcerated pre-trial that the stakes are so much higher,” given the acute risk of contracting coronavirus in jail.
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