Virtual Hearings Have Created A ‘Caste System’ In America’s Courts

“For 42 years it’s been theater, and now it’s film,” Gar Blume, an Alabama-based attorney, said about courtroom practice.

Anyone who has been involved with the judicial system knows what Blume means about the courtroom being a kind of theater. Once inside, players are greeted by a set where opponents are clearly marked—defense on one side, prosecution on the other. The judge sits high above the scene, while any witnesses speak at a lower mark besides her. If there’s a jury and an audience, they too are apart from the main players. The performance is a series of monologues and inquiries, where it’s clear whose side everyone is on; and body language, appearance, and demeanor are just as important as the words said.

Now, COVID-19 has changed all that. Precautions meant to minimize the spread of the disease—like remote hearings by video conferencing—have suddenly and drastically changed the way people experience the judicial process. And those changes are creating new disparities that are leaving some people who appear before the court at a distinct disadvantage.

“[There is a] caste system now via court,” said Rob Mason, director of the juvenile division for the Public Defender’s Office in Florida’s Fourth Judicial Circuit. “When you call in, we’ve got people that are on laptops or desktops, and are perfectly centered, and the audio is great and everything is perfect. Then we have some people that are calling in on their cellphones; then we have some people that only call in on their [home] phone and so suddenly we have this different class of people. I can’t help but think of the implicit bias between prosecutors and judges and even defenders as to how you look at these people.”

“In a live courtroom, it’s an open space and body language is critically important, and spacing is critically important,” said Blume, who co-owns a firm that specializes in criminal, juvenile delinquency, and parent dependency defense. “Now the first set of things we started worrying about was, ‘OK, where are we going to put the camera? Does it need to be up? Does it need to be down? Does it need to be on the side? How do we adjust the camera?”

These new considerations are not superficial, nor is this the first time they have come up. In 2001, the Florida Supreme Court amended and repealed a 2000 decision that allowed juvenile delinquency matters to be heard remotely. In the written opinion, the judges acknowledged that the remote process was cost-effective and solved transportation barriers, but diminished the sense of seriousness surrounding the hearings, appeared to confuse some of the young defendants, exacerbated intellectual and class inequities, and deprived defendants of their ability to engage in privileged communications. 

Other cases have raised constitutional challenges to virtual hearings. “People in criminal cases and in juvenile delinquency cases, which are quasi-criminal in nature, all have Sixth Amendment rights,” Blume said. “The confrontation clause guarantees defendants the opportunity to a face-to-face confrontation, or the right to confront their accusers or witnesses against them in front of the court.” He cited a smattering of cases, including Commonwealth v. Atkinson, where the courts decided that remote testimony does not satisfy the right to confront one’s accuser. 

“The other [constitutional challenge] is basic due process,” he said. “Due process of law includes the right to be present in person whenever the defendant’s presence has a … reasonably substantial relationship to the defendant’s opportunity to defend against the charge.”

Particularly problematic is the fact that many courts have closed to all but those hearings determined to be emergencies. The deferment of so many legal proceedings raises its own set of dilemmas, particularly for people who are incarcerated while awaiting a trial. Child welfare cases have proved especially fraught for some parents. Many jurisdictions are hearing motions that determine whether a child is removed from their home, and very little else.

“Now that it’s all over the phone or virtual, it feels more detached, it feels more confusing. Clients are sharing a lot of their frustrations and they don’t know what’s happening,” said Suah Kim, a social worker in the family defense practice of the Bronx Defenders in New York City. “It feels like to them everything is happening without them; it feels like everyone is making decisions [about the custody of their child] without them, without anyone listening to them, hearing them, and taking the time to understand their story.” 

The virtual setting also makes it difficult, and in some cases totally impossible, for clients and attorneys to engage in privileged communication with each other during the hearing. Several attorneys and advocates described how the virtual courtroom robbed them of the ability to pass notes with their client or mute the microphone so their client could privately dispute a witness statement, for example. Two, including Kim, said they were able get around that issue by putting their clients through on their phone lines using a three-way calling function, but it meant that the defendant could only appear by voice, and in order to engage in private communications they had to put the proceeding on hold, or in some cases even hang up on the hearing and call back in.  

“It’s really difficult. It just causes a delay, which is frustrating to the prosecutor, it’s frustrating to the judge—everyone you want to keep in a positive mindset because you want a positive outcome for this case,” said Jeyanthi Rajaraman, chief counsel of the Family Representation Project at Legal Services of New Jersey.

Sam Rabin, a criminal defense attorney in Miami, found the issues posed by virtual hearings so problematic that he refused to conduct a client’s sentencing remotely. Instead, he made headlines by showing up in a hazmat suit to attend the in-person hearing that his judge granted. 

“I thought it was inappropriate, if not unethical, for me to leave my client alone for sentencing, where he might have questions for me … I didn’t like the option of not being with him,” Rabin explained. “But I was representing somebody who had just come from jail, where I knew there were cases of COVID.”

Blume said in-person hearings he’s attended have posed their own sets of problems: judges only partially audible behind masks, plexiglass partitions conferring a daunting atmosphere, and social distancing requirements that limited his ability to converse with his clients. 

In some jurisdictions across the country, courts have remained open. Shakia Richardson, an Army logistics specialist who is battling a child services case in Montgomery County, Tennessee, said she has continued to be called in for regular, in-person hearings regarding custody of her 7-month-old daughter. “No masks, no six feet apart, nothing. … It’s like a normal day of court,” she said. But for the most part, virtual hearings are becoming normal, at least for now. 

Some attorneys say remote hearings have benefited their clients. “For parents to be able to choose to appear virtually … in my opinion is a hell of a lot less traumatizing than making them come down to a six-story courthouse, making them wait in a lobby with 400 other people for two or three hours, then having a bailiff come out with his gun and his badge and summon him in for a 15-minute hearing,” said David Flower, a Los Angeles County parent attorney. “At least for initial hearings, the way we are doing it now is not ideal, but compared to how we were doing it before, it’s a lot more humane.”

Vivek Sankaran, a parent attorney and clinical professor of law at the University of Michigan Law School, said that virtual hearings have made it easier for some defendants to attend hearings, and have opened more opportunities for representation, especially for those clients living in rural areas where there may not be an abundance of lawyers in the vicinity. “Before this, many of our families couldn’t get to court; getting to court required them to take days off work … [and] many courts are located in really difficult and challenging places to get to for people,” he said. “We have to use this opportunity to figure out [how courts can] … rethink their role in a way that reduces reliance on people actually physically coming in to get stuff done.”

But constitutional, ethical, and technical issues remain to be addressed, leaving the question hanging: What will happen when it’s no longer possible to defer more complex proceedings, like contested dispositions and jury trials?

“It’s been, I would say, a form of a circus, and it’s another level of lack of empathy regarding how we are treating clients,” Rajaraman said. 

Blume’s opinion of the virtual process was even more blunt: “If you have [defendants] on a screen, it’s like [judges are] clicking thumbs up or thumbs down on a Facebook image or something. It’s just so depersonalized.”