By: Justin McShane
COVID can shove it.
COVID impacts everything. And I hate it. No part of human being experience is immune. Into our vocabulary is this notion of “new normal.” It is my daughter’s version of 9/11…. but on a global scale. Gone are handshakes. No face-to-face meetings. If you are face-to-face, you’re most likely wearing a mask. Everything is being pushed to Zoom or Skype or whatever digital platform. People “show up” to meetings in their pajamas at 2 in the afternoon. Folks are driving here or there with a car full of kids while conducting business meetings. It’s just odd for an old timer like me. A COVID jury trial really worries me. Here’s why.a
I am a product of my times. I just think that if we let a virus erode the sanctity and solemnity of our criminal justice system, we are in big trouble.
Is American Justice turning into American Idol?
Court systems are human institutions created by humans. They exist for humans. Humans inhabit court systems. The greatest invention of man wasn’t the wheel. It was the rule of law. Being subject to and governed by laws made everything else possible. From the Code of Urukagina to today’s criminal codes, the certainty of expectations of what is or is not proper provides for stability.
But now with the “new normal” we have to change. The question is how. If I had the answer to that, I’d retire, write a book and become a billionaire.
One thing I can confidently express an opinion about is that respect for the criminal justice system is at an all time low. It’s not just the headline making rioters and property destruction without consequence. Or even the open fighting and killing of police. It’s the way we (judges, lawyers and citizens) now treat the “new normal” courts or virtual courts. We are at a place unlike any other spot in our lifetimes.
What isn’t working
By and large video hearings and appearances do work. They are not any less efficient than the old inefficient system. Cases move…. slowly. But at what costs? I am very concerned about some of the hearings that I have witnessed or participated in lately. It seems as if everyone involved forgets that this is court… not some sort of virtual barbecue. I’ve seen:
- a judge “hold court” while on a float in a pool;
- police officers mowing their lawns while waiting for the case to be called;
- male defendants without t-shirts or any form of shirt on;
- many, many lawyers in recreational clothing;
- people driving their cars while “in court” and presenting arguments;
- people playing with their kids (often young kids crying and screaming); and
- people muting the court but seemingly forgetting that the camera is still on while they pick their nose or eat.
If we want people to respect the system, we have to respect ourselves.
- Judges can’t be on pool floats.
- Officers need to be in uniform or in business attire.
- For goodness sakes my fellow lawyers, be professional. Suit and tie or equivalent.
- Everyone needs to be in a distraction free and dedicated space.
This is court. If this keeps up, I have small wonder why no one finds the system to be worthy of respect. I don’t respect such things. I detest them.
The biggest problem… juries
I have researched plans and options. I have read opinion pieces by “experts.” The plans about how jury trials can actually resume in this “new normal” are incomplete and all over the board. And much as you suspect, there is no single best practices approach.
For over 90% of the country the right to trial by jury has been suspended indefinitely.
In many places in America, there have been zero criminal jury trials FOR OVER 5 MONTHS! This can no longer be termed as temporary. What makes it worse, in my opinion is that organizations such as the ACLU, NACDL and the ABA endorse this. With many jurisdictions that have no plan for juries at all, the accused and especially the poor who are accused sit indefinitely on bail or in jail. Their liberty is indefinitely on hold. That is not right.
The right to a public trial is gone
In the few places that now have jury trials, in less than six months, criminal jury trials have become anything other than public. The public is flat out not allowed in the courthouse unless you are a defendant, a witness, a lawyer or court staff. Not all jury trials that I am aware of that are happening now are streaming. I would hazard a guess that well of 99% of pre-trial hearings attendant to a trial such as motion in liming hearings or suppression hearings are not streamed at all.
And even if jury trials were streamed, does that satisfy the Sixth Amendment to the US Constitution?
Will the SCOTUS overturn the cases of Pressly v. Georgia and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. and Waller v. Georgia?
- In Pressly v. Georgia the Supreme Court of the US held “trial courts are required to consider alternatives to closure even when they are not offered by the parties,” or by anyone else. In simpler words, a judge who does not want to be reversed on appeal must be confident that there cannot possibly be any alternative to closure that might later be conjured up by some appellate lawyer.
- In Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., the SCOTUS held that the First Amendment gave those not directly involved in the trial the right to demand the trial be public.
- InWaller v. Georgia, the SCOTUS established the right to public access to pre-trial matters (such as suppression hearings) in criminal cases
Will the appellate courts of our states and our federal government, just bow to “the realities” and allow for this restriction of the public? If so, when, if ever is the perceived need for such restriction over? What is the benchmark?
Where does it end?
If we allow this new normal to mean “zoom everything, no one allowed in the courthouse,” where does it end?
Are we in mission creep to a “new normal” where the inevitable result is jurors “serving” jury duty via Zoom???
Will a COVID jury trial turn into American Idol?
Jurors stay at home. In a COVID jury trial, the jurors text a result?!?!?!? I mean that’s kinda what seems to be going towards now. If we tie this into the problem we already know exists in terms of virtual courtroom decorum, jurors will act similarly. They’ll mow the lawn while listening to a forensic pathologist in a murder case. They’ll have to care for their kids and ” deal” with them during the testimony of a complaining witness in a rape case. Where does it end?
The prospects of a COVID jury trial scares me. Already, the right to a speedy and public trial by a jury of one’s peers has disappeared in less than five months. Poof. Folks languish in jail or on bail indefinitely unable to clear their name. Decorum and respect for the court system is at an all time low. All of these changes to our justice system that has been the greatest criminal justice system in the world for 244 years are unacceptable to me. I hope they are unacceptable to you too.
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