“It’s impossible to advocate for someone [in court] over the telephone. … Anything you say or your client says is heard by everyone.”
On May 6, I sat in on Zoom court, as such proceedings are often labeled after the technology that facilitates online trials. This was a federal hearing on a motion for the temporary release of 43-three-year old Johanny Mejia-Nunez, who is detained at Plymouth County jail. Although the defendant had been refused bail before, the appeal cited that he should be able to wait for his trial at home since he is at risk of contracting coronavirus.
Since the pandemic hit, many people are being tried over the internet, in courts where attorneys and personnel appear in suits from their homes, while judges are at the courthouse or seated in home offices with books in the background. If the defendant is held behind bars, they often appear on screen unless video is not working at the facility, in which case they call in.
“We are all improvising to some extent,” Ben Evans, an attorney on the South Coast, wrote in an email. “In Fall River District Court, arraignments happen via telephone conference. In Attleboro District Court, they happen via video conference.”
As far as I could ascertain, these decisions are as much due to technological capabilities as to philosophy. Suffolk County District Attorney Rachael Rollins, in a Zoom interview, told me that the “gaps in the system” have been very confusing for the public. “It’s 2020, “Rollins said, “and we don’t have a live stream in our municipal and district courts.”
Each Massachusetts court, be it District, Superior, Appeals, or the Supreme Judicial Court, has its own remote procedures. A form I filled out for the federal hearing assured me that “Access to all hearings are available to the media and public.” (This is unlike Juvenile Court, which has confidential proceedings.) However, during one telephonic court call, the proceedings began before the phone line was working for the public to call in and listen.
In federal Zoom court, defendant Mejia-Nunez, speaking from a nondescript room, appeared on-screen in the familiar checkerboard, his black curly hair and brown skin accentuated by a white mask. Of all the people on the video conference, the defendant was the only one in a mask, raising questions. Is he someone who is prone to sickness? Is Mejia-Nunez contagious? Should that impact a decision about his release in some way? Most importantly, is it fair for only one person in a court proceeding to be wearing a mask?
Other screens included: Chief Justice F. Dennis Saylor IV, seated at the Moakley Courthouse in Boston; Majia-Nunez’s two lawyers, Murat Erkhan and Christopher Bosso, appearing from separate offices, and texting back and forth since they could not talk freely; the government prosecutor, Corey Steinberg, who was difficult to see; Gabriel Hadad, translator for Spanish-speaking Majia-Nunez; and other personnel, all in their own Zoom boxes. On the phone were Majia-Nunez’s loved ones, each in separate squares. All together there were 17 people.
Erkhan, who was disconnected three times in a previous Zoom court appearance, told me after the hearing that it was difficult to do his job without his client sitting next to him. At one point during the proceedings, Majia-Nunez asked to speak directly to the judge. Erkhan said, “Often I can say, ‘Sit up straight,’ or ‘Don’t say this to the judge,’ and ‘We can do that without drawing the court’s attention to it.’ In this case, I didn’t hold my breath when my client spoke directly to the judge.”
It was hard to hear the judge as well as the defendant. When Majia-Nunez spoke, there was a lag, then a translation, then an answer in English. After it was over, his appeal was denied. Randy Goia, deputy chief counsel of the Public Defender Division of the Committee for Public Counsel Services (CPCS), said in an interview, “Remote justice is a really poor substitute for the real thing. When a judge can’t look at a person and see their eyes, can’t really observe facial expressions and body language, it is hard for a judge to make a fair and just decision.”
Even before coronavirus closed the courts, remote justice was creeping into legal proceedings in Massachusetts, and many lawyers were objecting. Technical glitches are annoying, and in the four remote courts I attended, disruptions ranged from dropped calls or “My Zoom isn’t working” to scratchy sound quality.
Prisoners’ Legal Services staff attorney Bonnie Tenneriello describes a more serious problem. Telephonic clients, she said in an interview, seem like “disembodied voices.” Tenneriello is quick to point out that no one can be faulted, but a survey by CPCS and Suffolk University in 2017 found that out of 225 responding attorneys, more than 85% said that videoconferencing dehumanizes the defendant.
Merritt Schnipper, a criminal defense attorney who focuses on appeals, explained: “One of our jobs is to help judges see clients as people and how they got caught up in the court system. This is significantly more difficult to do without a person standing before the court.”
More than 70% of attorneys responding to the CPCS-Suffolk survey felt that there are inadequate provisions during remote hearings to protect attorney-client confidentiality. “I think it’s impossible to advocate for someone over the telephone,” criminal defense attorney Makis Anzoulatos said in an interview. “Anything you say or your client says is heard by everyone.”
More than 55% of respondents said remote proceedings impede communication. As attorney Ben Evans wrote in an email response to questions for this article, “Does a Mayan immigrant from Guatemala who speaks some Spanish have a chance of understanding court proceedings via video conference when the court interpreter is in the courtroom and she is not?”
In January, District Court Chief Justice Paul C. Dawley “touted the benefits” of virtual hearings in speaking with Kris Olson of Massachusetts Lawyers Weekly. He said expanding videoconferencing would reduce crowding at courthouses, increase security (no chance for bringing contraband to courthouses), and reduce costs (transportation of prisoners and detainees). However, in the same article, Suffolk University professor Eric T. Bellone, who collaborated with CPCS to produce the report from the survey, pointed to the human costs. In Cook County, Illinois, “The average bond amount for the offenses that shifted to televised hearings increased by an average of 51%, and there were increases of between 54 and 90% for six major felonies. … By comparison, defendants who had appeared in court experienced a negligible increase in bond amounts.”
In her April 22 response to a lawsuit pursuing decarceration during the pandemic, District Attorney Rachael Rollins warned against constitutional rights being violated by video proceedings. Rollins cited cases involving rape victims having the right to see their accuser and family members not having access to proceedings, writing, “Now, due to the trial court’s inability or refusal to adapt or evolve technologically, our victims and family members of victims, the public, and defendants are being excluded from the process.”
“Crime doesn’t stop for a global pandemic,” the Suffolk DA told me in an interview.
There is also a significant digital divide. According to BroadbandNow, there are “147,000 people in Massachusetts without access to a wired connection capable of 25mbps download speeds,” and another “64,000 people without wired internet providers available where they live.” Douglass Keith of the Brennan Center for Justice at NYU School of Law said, “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.” It could also mean a member of someone’s family cannot gain access to a hearing.
As of May 18, court officials in Texas decided to move forward with the nation’s first jury trial on a virtual platform. According to Reuters, “Lawyers in an insurance dispute in Collin County District Court on Monday will present their case by videoconference. The one-day trial, which is available on YouTube is a so-called “summary jury trial, in which jurors hear a condensed version of a case and deliver a non-binding verdict.”
Jurors were selected virtually, deliberated through Zoom, and gave a verdict, reported NBC in Dallas.
In Massachusetts, the chief justices of the Supreme Judicial Court, the Appeals Court, and the Trial Court wrote to the Massachusetts Bar Association leaders and members of the bar, “The challenges of conducting jury trials with social distancing during a pandemic are formidable, and will require us to reimagine how juries are empaneled, where they will sit during trial, and where they will deliberate so that jurors can both be safe and feel safe.”
In my interview with DA Rollins, she said that she has begun thinking about how to empanel grand juries in Suffolk County (23 people who decide if an indictment should issue so that the case can go advance to trial in the Superior Court). “We don’t want [survivors of crime] to think we aren’t moving forward with respect to the things that have happened to them,” she said. Rollins has proposed a way to do this in person to some extent, by keeping people in separate rooms on separate floors, with each person six feet apart from another, everyone with personal protective equipment and access to computers and big screens.“Then we only have one assistant district attorney and one witness in the courthouse at a time,” Rollins added.
Meanwhile, according to the New Jersey Law Journal, judiciaries there announced pilot programs to hold virtual grand jury proceedings via Zoom in Bergen and Mercer counties.
Nevertheless, criminal defense attorneys like Makis Anzoulatos, who is a member of the National Lawyers Guild, said the reactions of their clients to news about the courts closing have been full of “helplessness, desperation, and frustration.”
“We can talk all day long [about] whether there’s a better way to do it,” Anzoulatos said, “but if you’re sitting in jail, you want your day in court.”