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, who runs 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.
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