In my more than 25 years of practice, I’ve seen nothing comparable to the effect of COVID-19 on the operation of the legal system. The response of people throughout the system has been both encouraging and disappointing.
We Were Not Adequately Prepared
It’s changing day by day, and, I hate to say it, but the court system which already was slow to adjust clearly needs to improve on many fronts. We have literally thousands of professionals conscientiously trying to figure out what to do as this continues.
Clearly, as a profession, we lacked an adequate plan to face such a crisis, which was foreseeable, even if not expected. We can learn from this experience. We can see no plan was up to the task at hand.
Our highest Texas courts have tepidly made recommendations to the lower courts. The “orders” allow great latitude in the trial judge’s decisions.
On April 17, 2020, in-person hearings were recommended through “guidance” to be much more limited than they have been, but that simply means unreasonable judges, and they definitely exist, contrary to myth, are free to put people at unnecessary risk.
In my opinion, the typical extreme deference trial judges enjoy should temporarily be narrowed drastically by the highest courts (Texas has two “highest” courts, one for criminal cases, and one for civil cases). Safety and even-handed justice demand it. Recommendations and “guidance” are insufficient tools against those who are unreasonable in the first place.
Some judges have gone about business as usual, forcing defendants and lawyers to come to court in person, multiplying the opportunity for transmission of the coronavirus.
Other judges immediately took bold, even arguably overreactive steps and halted all court proceedings until further notice. Radically unequal treatment of litigants and lawyers throughout the state is unfair, unprofessional, and, in my opinion, intolerable, a veritable shame upon the legal system.
To be fair, we should not expect judges to make expert decisions about how to deal with infectious disease, in that their positions have no requirement for such expertise and training, and few, if any, have independent expertise on the topic. A few judges may have had limited training about what almost everyone considered an unlikely threat, but whatever existed certainly hasn’t been enough.
Implementing alternative ways of conducting court business have run into logistical, technical, and legal problems.
As absurd as it sounds, paper has been the source of problems. Yes, paper, those thin, white sheets made from wood pulp, written upon with ink. Our legal system is slowly weening itself off the traditional heavy diet of paper, but it is still a daily part of criminal cases.
An overwhelming percentage of criminal cases are resolved without contested hearings, most commonly in what is known as plea agreements or “plea bargaining”. The only way to go forward with such hearings is to ensure the defendant is knowingly and voluntarily waiving various and numerous important rights. Our rights are extremely important, and we don’t want to assume a defendant understands the consequences of admitting guilt and accepting conviction and/or punishment.
Usually, those rights are contained in a stack of papers detailing the rights, acknowledgement by the defendant he/she understands the rights, and an affirmative waiver of the rights. Defense attorneys are usually afforded an opportunity to meet alone with defendants to carefully review such paperwork before court proceedings begin. Prosecutors also must sign the paperwork.
Paper and pens are physical items, of course. These items pass from hand to hand. The person who provides and prints the paper, the lawyer for the defendant, the defendant, the prosecutor, the judge, and the clerk all routinely touch these very same items.
Not only is physical transmission from commonly touched items a coronavirus transmission concern, physical proximity of people in the process could promote transmission of coronavirus.
Our reliance on paper continues to be a problem, but, I think, not an insurmountable one.
Another logistical problem increasing risk of transmission is lawyers visiting with their clients in jail. Jails have people coming and going routinely, including employees, police, lawyers, medical personnel, and those being incarcerated and those recently arrested. Judges and clerks also have offices in some county jails. We are still struggling with how to minimize contact.
Technological alternatives to live court include Zoom for participants and Youtube streaming to make the hearings public. However, scrambling to equip and train people to use the technology is a work in progress. Further, issues unique to criminal cases pose problems which have yet to be resolved.
Amidst all this confusion and scrambling for answers, we cannot allow the rights of the accused to be sacrificed because it’s not easy to accommodate them.
As a profession, we are working on making it better, but time is the enemy, and we should expect more challenges.
Eventually, we will emerge from this crisis with lessons learned. Perhaps it will be the dawning of a more modern, technological, and efficient legal system, one which is more adaptive, more respectful, and progressive. I, for one, am eager to see such progress in our system.