In April, a Florida court held a bench trial over Zoom to decide a child abduction case under the Hague Convention. Later that month, the same state held a major virtual trial on the voting rights of convicted felons, with the public listening in by phone.
As criminal courts grapple with the COVID-19 pandemic, some in the legal industry wonder whether a virtual jury trial could be next.
Just weeks ago, the idea might have seemed inconceivable. Now, as remote meetings using videoconferencing tools such as Zoom become a regular fixture in courts, some are concerned that virtual trials would deprive defendants of the constitutional right to confront witnesses, an impartial jury, due process of law and effective counsel.
Douglas Keith of the Brennan Center for Justice at New York University School of Law is among them. He says courts will have to reconcile remote proceedings with the demands of the Constitution.
“There are all sorts of other questions of fairness that courts are going to have to confront,” Keith says.
According to the National Center for State Courts, 16 states and the territory of Puerto Rico have ordered virtual hearings in response to the novel coronavirus; however, none of the legal experts interviewed for this story was aware of any remote or virtual jury trials. In Texas, the public has access to hundreds of proceedings on YouTube, where prosecutors, judges, defendants and public defenders convene on Zoom. In Cook County, Illinois, the public can watch bond hearings online.
With courts suspending trials because of the virus, some legal experts say a virtual criminal jury trial is a near certainty. Others, including Judge Scott Schlegel of the 24th Judicial District Court in Jefferson Parish, Louisiana are more skeptical.
“I don’t see it happening, frankly, for all the reasons you can imagine,” Schlegel says.
THE LEGAL HURDLES
The technological and constitutional hurdles of a virtual trial go hand in hand, and long before the pandemic, courts have wrestled with how to conduct virtual hearings using video technology.
One issue is making sure defendants and witnesses have access to high-speed internet so they can appear in the first place. According to the Federal Communications Commission, by the end of 2017, 21.3 million Americans lacked access to high-speed internet.
There is also the question of how defendants can safely access public spaces with broadband during the pandemic. That digital divide could have real-time effects in the courtroom, Keith says.
“Those with lower-quality internet are going to be the ones who are more likely to have interruptions in their audio or in their video feed, which, of course, could impact how they’re viewed by the judge or the jury,” Keith says.
Defendants have been shown to fare more poorly in remote proceedings. A 2010 study found that judges in Cook County set bail higher for defendants using closed-circuit television than those who appeared in person.
After Locke Bowman, executive director of the MacArthur Justice Center in Chicago, filed a 2006 lawsuit over the closed-circuit bond hearings, the county responded by going back to in-person proceedings only.
Bowman says trials by video would likely compromise rights of defendants under the Sixth Amendment’s Confrontation Clause, which allows them to confront witnesses.
“A basis for conviction has always turned on a jury’s ability to assess the demeanor of the witness firsthand. When you take that away, you’ve lost something precious,” Bowman says.
People might bristle at the thought of sitting shoulder to shoulder in a jury box during the outbreak. Courts are looking toward Zoom and other video platforms as they seek to protect the public’s health despite privacy and security issues. Bowman says the technology raises “real questions about the integrity of the process,” and whether jurors could be “susceptible to outside influence when the jury isn’t even in the same location as the judge.”
Schlegel says a jury’s ability to deliberate could also be impacted, and courts would need to ensure jurors were not doing independent research on cellphones or computers.
“I don’t know that you could have the necessary precautions in place when all 12 are at their home, talking to each other on a screen,” Schlegel says.
Then there are the procedures defendants take for granted, such as conferring quietly with their lawyers during their trials. That’s one of the reasons Abner Burnett, director of Texas Rio Grande Legal Aid Public Defenders, is opposed to virtual jury trials.
“If you set up a situation where the client’s access to his or her attorney is through video, then a lot of the assurance that comes from being in close proximity with a lawyer—and the ability to think and act on the spot—is decreased,” Burnett says.
Judge Christopher Whitten is a state court judge in Maricopa County, Arizona. He agrees that a whole host of security and technical issues accompany a jury trial by videoconference, but he also believes the obstacles are not too great to overcome.
“If somebody who is in jail doesn’t have access to videoconferencing equipment and they can’t participate, then they have no [due] process,” Whitten says, adding that if defendants have access to the technology, “I think there are a lot of things that trial judges can do to make sure that they have a fair hearing.”
One solution for allowing defendants to communicate “privately and simultaneously” with their lawyers, he says, could include a second phone line or a private chat or note-taking function.
COURT WATCHERS ON ZOOM
Prior to the pandemic, if you walked into any criminal trial court in the country, you might see victims’ family members or defendants’ close relatives in the gallery. How might courts ensure public access to virtual court proceedings?
That’s the question on Simone Levine’s mind. The executive director of Court Watch NOLA she says she had to fight for a month to get access to Zoom proceedings for bail hearings in New Orleans.
Problems with access persist. Sometimes a judge will start a proceeding ahead of the scheduled time, so court watchers will enter halfway through. Levine says the group has only been granted access to bail hearings, not other criminal matters.
New Orleans has one of the highest rate of wrongful convictions in the nation. Levine believes virtual trials could widen fissures in the justice system.
“What we worry about when it comes to proceedings is, are all of the witnesses going to be available? Is there going to be full due process of the law? Certainly, transparency and accessibility is a big concern, too,” Levine says.
LIGHTS, CAMERA, ACTION
Video can be distancing and distorting. As courts come to grips with virtual hearings, they will need to consider how framing, lighting, camera angle and location might make jurors question the credibility of a witness or create bias. A jury could view defendants differently if they are seated in jail, wearing an orange jumpsuit and 10 feet away from a camera, or if they are framed from a low angle or have shadows on their faces.
Conversely, a defendant represented by a high-powered law firm might have the financial means to appear in slickly produced video court proceedings and testify in lavish surroundings.
In court, a jury views a witness or defendant in the context of the entire courtroom. Fraser Wyatt of For the Record, a company specializing in courtroom technology, says his company has been wrestling with how to replicate the courtroom experience.
He notes that there a small steps that courts can take to make sure everyone is in the proper attire and court seals are used in backdrops. The National Center for State Courts, in collaboration with two other organizations, has also issued guidelines on how courts should handle virtual hearings.
“When you go into a court, there is that feeling of a very serious space—going through security, the marble floors, the echoing as you’re walking. That is an experience that reinforces to people that this is a serious place where serious things happen,” Wyatt says. “In the virtual space, how do you reinforce that someone’s liberty is at stake?”
For some, there is nothing like the experience of being in court. Burnett says a jury in a courtroom can build a whole picture and narrative in their minds just by watching how attorneys and their clients interact.
“I’ve done enough of these Zoom videoconferences in the last month to say that the options for what you perceive on the screen are limited,” Burnett says.
The tactile nature of proceedings is also an important element of criminal trials, says Schlegel.
“It’s different when you have a prosecutor or a defense attorney standing up, handing a picture of a crime scene … and then handing it to the jury and having them physically touch a firearm, or physically touch the knife or consider those gruesome photos in real life,” the judge says.
Burnett says there is a “strong push” in Texas to begin trials by videoconference, and he fears they will become permanent. He says he doesn’t have a single client in jail “that doesn’t want out” or isn’t worried about being exposed to COVID-19.
“I will be obligated to explain in detail the obstacles, the almost insurmountable disadvantages of trial by video,“ Burnett says, adding, “I don’t think there’s a one of them that’s going to want to do it.”
Oklahoma Legislature Votes To Let Out-Of-State Residents Get Medical Marijuana, And To Allow Delivery
The Oklahoma legislature sent a bill to the governor’s desk on Friday that allows out-of-state residents to obtain temporary medical marijuana licenses that last for up to three months and also provides for legal cannabis delivery services.
The legislation, HB 3228, is a comprehensive package containing various policy changes to the state’s medical marijuana program. It would further remove a provision that requires people who aren’t registered cannabis patients to state a valid medical condition if caught possessing marijuana in order to receive a reduced misdemeanor penalty.
If the new bill becomes law, any person, regardless of whether they have a medical condition, will face a misdemeanor punishable by up to $400 and no jail time for first-time possession without a medical cannabis card.
Out-of-state individuals could apply for temporary, 90-day medical cannabis patient licenses under the bill—even if they’re not a registered patient in their home state. Those licenses would be renewable.
Another provision celebrated by reform advocates makes it so that medical marijuana patient and caregiver records cannot be “shared with any other state agency or political subdivision without a warrant issued by a court of competent jurisdiction.”
The bill makes several other changes such as allowing patients to pay a late fee to get their registration renewed if they missed the deadline by more than 30 days but fewer than 90 days.
For the delivery section, the legislation states that licensed dispensaries can transport cannabis products to patients’ private residences as long as they are located within a 10-mile radius. If there aren’t any dispensaries in that range, a dispensary more than 10 miles away can still deliver products if they’re based in the same country as the residence.
An initial version of the bill passed 90-6 in the House of Representatives in March. On Friday, the Senate approved an amended version in a 38-5 vote, with the House signing off on the other chamber’s changes later in the evening. It now heads to Gov. Kevin Stitt’s (R) desk. The governor signed a bill establishing a regulatory framework for Oklahoma’s medical cannabis program last year after voters approved a legalization ballot measure in 2018.
Separate legislation that would prohibit the state’s firearms department from denying applications to purchase handguns due to a person’s participation in the state medical cannabis program is also set to be taken up by the House after unanimously passing the Senate in February. That bill stipulates that people can’t possess firearms while under the influence of marijuana.
Oklahoma activists filed a proposed ballot measure to legalize cannabis for adult use in December. Last month, a campaign staffer said they’re awaiting state Supreme Court approval to gather signatures but tempered expectations that it would be feasible to collect enough in the allotted timeframe due to the coronavirus pandemic.
A state lawmaker also said he would be introducing a bill to legalize recreational marijuana and argued it would “potentially be a revenue funder” to fill coffers diminished by the health crisis.
Reformers have targeted a long list of players in the justice system as critical for reducing incarcerated populations, ranging from prosecutors and police, to judges and correctional chiefs.
But what about jailers?
A forthcoming paper argues that the potential of sheriffs and county commissioners for changing the dynamics of mass incarceration has often been overlooked.
The author of the paper, Aaron Littman, a Binder Clinical Teaching Fellow at UCLA School of Law, says that the administrators of the country’s estimated 3,000 jail systems have “tremendous but unrecognized” power in determining both “supply and demand” in the criminal justice system—but only a relatively small number have exercised it in the interests of reducing incarcerated populations.
“Obscuring the role (sheriffs and local jail authorities) play in weighing the costs and benefits of incarceration allows them to focus on their own institutional and political priorities and avoid responsibility for the harms their jails cause,” wrote Littman, who previously served as a staff attorney in the impact litigation unit of the Southern Center for Human Rights.
The most productive way to engage jailers in justice reform is to treat and regulate modern jail administration as a “public enterprise,” he argued.
His recommendations come at a time when jails house roughly a quarter of the 2.3 million U.S. incarcerated population, including those awaiting trial or who have been convicted of minor offenses.
Jails have been called the “next frontier” of justice reform—and perhaps the most complicated. Jail populations have tripled since the 1970s, with much of the growth coming in rural jails—leading to a crisis of overcrowding.
One of the largest drivers of jail growth has been the opioid epidemic, since in the absence of sufficient local providers, jails often are the only facilities providing mental health or substance-abuse treatment.
There are roughly 745,000 people housed at any given time in the nation’s jails, the majority of them operated by county governments, under the supervision of a local sheriff.
Littman, drawing on existing research that includes evidence of jail expansion plans around the country, suggested that jail populations are driven as much by local politics and economics as crime rates—and that jail administrators’ control over “supply and demand” is a crucial but often unrecognized factor in reform.
On the demand side, “as the supervisors of patrol deputies, [jailers] can deprioritize high-volume, low-level crimes, and order the use of the citations in lieu of arrest in many cases,” Littman wrote.
On the supply side, jailers can stop proposing to build new jails, and instead work to decrease the current jail population by reevaluating nonviolent offenders’ situations.
Moreover, as trusted colleagues of police chiefs, DAs and judges, “they can push for shifts to reduce the number of people entering their jails and the duration of their stays,” Littman wrote.
Some sheriffs and jail administrators, however, underplay their influence.
Littman cited the example of a jail commissioner at a hearing called to discuss expanding a local jail who refused to answer a resident’s question about reducing the number of detained individuals, responding instead that the best he could do would be to “pray that the beds wouldn’t fill” in the new, larger jail.
This is not how officers of the law should be handling incarceration, Littman argued.
In contrast, he pointed to examples of sheriffs who were actively engaged in reducing jail numbers.
In Canyon County, Idaho, for instance, staff at the overcrowded jail “work daily with prosecutors, defenders, and judiciary to identify inmates who can be released early due to overcrowding.”
In Sangamon County, Ill., the sheriff assembled a council comprising judges, states attorneys, and sheriff’s office staff to address jail overcrowding. The council’s aim is agree on which pretrial detainees can be safely released on their own recognizance.
Littman found other examples of reform-minded sheriffs in Sebastian County, Ark.; Fremont County, Wyoming; and in Houston and San Antonio, Tx.
Sheriffs are often the most powerful figures in local communities. Most are re-elected multiple times, for lack of opposition, thereby amassing huge local influence even as they are “insulated from accountability.”
The average tenure of a sheriff in the U.S. is 11 years, but some stay in office for as long as half a century. They enjoy an “incumbency advantage” that exceeds other locally elected officials and even members of Congress, and “they are also almost always white,” Littman wrote.
As the examples above show, sheriffs, along with county commissioners, can play a much larger role in justice reform if they are willing to, Littman claimed.
“Despite their disclaimers of responsibility, sheriffs and county commissioners are policymakers – not functionaries – with the power to increase and decrease the number of people behind bars,” he wrote.
“Jailing has become a public enterprise, its growth driven at least as much by political economy as it is by public safety, and should be regulated as such. “
The paper can be accessed here.
Andrea Cipriano is a staff writer for TCR.
HELENA, Mont. -- Native Americans are facing a series of barriers to voting in Montana's upcoming primary election. Due to COVID-19, all Montana counties are providing a vote-by-mail option.
Marci McLean, executive director of Western Native Voice, said this presents the first challenge for Native Americans on reservations - the overwhelming majority of whom have their mail delivered to a post office box. Because of the virus, McLean said, there are health risks with giving folks rides to ballot drop-offs or their post office, which can be miles away.
In addition, the new Ballot Interference Protection Act will prevent groups such as Western Native Voice from delivering more than six ballots at a time, curtailing a common practice of ballot collection in Native American communities.
"The Ballot Interference Protection Act and COVID and vote by mail - it's a triple whammy on our communities and the right and access to vote," McLean said.
McLean said her group picked up more than 800 ballots in the 2018 election. Ballots will be mailed on Friday for the June 2 primary.
The Ballot Interference Protection Act was passed by voters in 2018. Western Native Voice and Montana Native Vote are challenging it in court, arguing the law disenfranchises Native Americans.
Jacqueline De Leon is an attorney with the Native American Rights Fund, which is representing the groups along with ACLU of Montana. She said voter engagement groups on Native American reservations rely heavily on ballot collectors - who go to folks' homes throughout a community, pick up around 100 ballots and drop them off.
"And that's because they're putting on a ton of miles on their car, they're driving really long distances to get those ballots. And that keeps the person who is trying to vote from having to travel those distances themselves because they're just prohibitively far," De Leon said.
McLean's group is waiting to hear if a federal judge will block the law. In the meantime, she said her organization is implementing a robust digital campaign to get out the vote and is thinking of this primary as a trial run for November.
"We're all hands on deck for this primary election just in case it's the same in the general and we have to learn from this one how to fine-tune things for the general election," McLean said.
For the first time in recent memory, the Supreme Court will be holding oral arguments in May, and for the first time ever, they will be by telephone. Because of the COVID-19 pandemic, oral arguments were canceled in the Supreme Court in March and April.
There is precedent for this: During the Spanish flu epidemic in October 1918 the court canceled arguments for a month, and before that, shortened argument calendars for yellow fever outbreaks in 1793 and 1798.
Interestingly, the court did not reschedule oral arguments for May for all of the cases that were scheduled to be heard in March or April. About half of the cases were held over for argument next term. These include Google v. Oracle America, a very important intellectual property case concerning whether copyright protection extends to a software interface and whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
Also moved to next October are two significant cases concerning personal jurisdiction--Ford Motor Co. v. Bandemer and Ford Motor Co. v. Montana Eighth Judicial District Court—which concern the ability to sue Ford Motor Co. in a state where its car caused an injury even though the car was purchased in another state.
Of the 20 oral arguments that had been scheduled to be heard in March and April, 10 have been rescheduled for the weeks of May 4 and May 11.
Some of the most important matters include whether President Donald Trump and those with whom he does business are immune from subpoenas; issues of religious freedom; whether a state can prosecute an enrolled member of a Native American Tribe for crimes committed within the historical tribal boundaries that are subject to exclusive federal jurisdiction; and whether a state can demand how an elector in the Electoral College votes.
Presidential immunity from subpoenas
The most high-profile cases will be argued on May 12 and concern the scope of presidential immunity from subpoenas. The issue in Trump v. Vance is a state court grand jury subpoena for eight years of Trump’s business and personal records in connection with an investigation of hush money that was paid during the 2016 campaign to Stormy Daniels and Karen McDougal.
Trump sued in federal court to keep his accounting firm, Mazars USA, from turning over the financial records. The federal district court ruled against him and the United States Court of Appeals for the Second Circuit affirmed.
The other two cases have been consolidated for oral argument and involve the ability of congressional committees to subpoena records from financial institutions who handled the President’s personal finances. Trump v. Mazars USA, involves a subpoena by the House Oversight and Reform Committee, which is investigating the hush money payments, Trump’s financial involvement with Russian companies, and the accuracy of financial statements he made to obtain loans and reduce taxes.
The subpoena was directed at a firm that did accounting for Trump. The federal district court ruled against Trump and the United States Court of Appeals for the District of Columbia Circuit affirmed. The appellate court concluded that the “subpoena issued by the committee to Mazars is valid and enforceable.”
Trump v. Deutsche Bank AG involves subpoenas from the House Financial Services and Intelligence Committees that were directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One. Once more, Trump went to court to block the subpoenas, but lost in both the district court and the Second Circuit.
Ultimately, President Trump is claiming that he, and all with whom he does business, are immune from all subpoenas. The case involves important issues of presidential accountability, as well as the scope of investigatory power by state grand juries and congressional committees.
It is interesting that the high court chose two matters concerning religious freedom to hear in May even though unlike some of the other matters there is no apparent urgency for resolving the issues presented.
Two of the cases, which have been consolidated for oral argument--Our Lady of Guadalupe School v. Morrissey Beru and St. James School v. Biel—involve the extent to which religious institutions are immune from employment discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the Supreme Court held that a religious school could not be held liable under employment discrimination laws for the choices it makes as to its ministers, including when it ordains its elementary school teachers as ministers.
But what if the teachers are not ministers, but the religious school claims that the teachers carry out important religious functions? The issue before the court is whether the First Amendment’s religion clauses provide an exemption from employment discrimination in this circumstance as well.
Also consolidated for oral argument are two cases that involve the contraceptive mandate, which requires that employer provided health insurance include contraceptive coverage for women, under the Women’s Health Amendment to the Patient Protection and Affordable Care Act. In Burwell v. Hobby Lobby (2014), the Supreme Court held that it violated the Religious Freedom Restoration Act to apply the contraceptive mandate to close corporations whose owners had religious objections to providing contraceptive coverage.
The Trump administration significantly expanded the scope of this exemption for entities affiliated with religions and extended the exemption to organizations with moral objections to contraceptives. In Little Sisters of the Poor Saint Peters and Paul Home v. Pennsylvania and Trump v. Pennsylvania, the court will consider whether the Trump administration followed proper procedures and whether these regulations are in accord with federal law.
State court jurisdiction over historically tribal lands
Last year, in Carpenter v. Murphy, the justices split 4-4 over the question of whether the state, or only the federal government, could prosecute crimes by Native Americans in Oklahoma in areas that were historically tribal land. Justice Neil M. Gorsuch was recused from participating.
The case has enormous implications in terms of whether the state has jurisdiction to prosecute major crimes allegedly committed by Indians in territory covering about half of the state of Oklahoma. The court set the case for argument this term, but everyone wondered how the court would avert another 4-4 split.
The court seems to have solved that problem by granting review in another case, McGirt v. Oklahoma. The issue is whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
Electors in the Electoral College
The court will complete oral arguments on May 13 with two cases that pose the question of whether a state can mandate how its electors will vote in the Electoral College. The issue in Chiafalo v. Washington is whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs violates the First Amendment.
In Colorado Department of State v. Baca, the question is whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots.
Simply put, does an elector who participates in the Electoral College have the constitutional right to decide how to vote, or is this something that can be prescribed by law?
For the first time in history, this May, we can listen to real-time audio of Supreme Court arguments. It will be fascinating to hear how the justices navigate conducting an oral argument by telephone. I wish that the court had used a video platform, like Zoom, which seems so much more conducive to oral arguments.
If the court decides all of the cases argued, there will be 54 decisions on the merits, which will be the smallest number since the Civil War. Yet it is hard to imagine a term with more blockbuster cases. In addition to the ones being argued in May, there already have been arguments this term in cases involving abortion rights, gay and lesbian rights, President Trump’s rescission of DACA, and the Second Amendment.
Usually, the court hands down all of its decisions by the end of June. It seems unlikely the court could do that this year with oral arguments continuing until May 13. I would expect decisions to continue into July and maybe later.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.