Judges Tout Covid for Opening Judiciary Up to Technology

A screenshot of Texas Supreme Court justices hearing arguments in a case using the video conferencing platform Zoom.

WASHINGTON (CN) — Three high-level judges testified to Congress on Thursday that Covid-19 was the disruption needed to break with old norms and allow technology to open the judiciary to the public eye. 

“I don’t think we’re ever going back to where we were before,” Jeremy Fogel, executive director of the Berkeley Judicial Institute and former director of the Federal Judicial Center in Washington, told the House subcommittee that oversees the courts. 

A former California state and federal trial judge for 37 years, Fogel along with two active federal judges told lawmakers that the novel coronavirus outbreak has ushered in a new era for the judiciary.

Michigan Supreme Court Chief Justice Bridget M. McCormack said the new reliance on technology in her state has created a more customer-friendly court system.

Along with Fogel, the chief judge pressed for Congress to provide funding and guidance for video and audio access to continue after Covid-19 has passed — a mode of operating currently allowed temporarily through the CARES Act to prevent an insurmountable backlog of cases. 

“How the courts treat people is the whole ballgame,” McCormack said. “We’re kind of selling trust in government.”

Over the last three months, Michigan judges have held over 50,000 hearings over the video conferencing platform Zoom and are now approaching 350,000 hours of online proceedings livestreamed on YouTube, the chief judge explained. 

“It is a tremendous opportunity for us to figure out how we can do a lot of what we do better,” McCormack said. 

While Congress appropriated $7.5 million in emergency coronavirus funding to the judiciary, in April the courts requested another $36.6 million in supplemental funding to pay for everything from new streaming technology to health screenings at courthouse doors.

“There is a powerful desire to get back to normal, but the courts will put people at risk if they simply try to revert to how they operated before the pandemic,” Georgia Congressman Hank Johnson said in the Thursday hearing. 

With jury trials on hold in most districts, the Judicial Conference of the United States drew up detailed plans in June on how to safely resume criminal proceedings — including everything from how many people to allow in an elevator to where to position tape on courtroom benches to mark out jury seating. 

Despite the challenges brought on by Covid-19, the new normal had provided a wealth of data on remote courtrooms operations that Fogel said Congress should assess through a formal study. 

Rounding off the panel, Senior U.S. District Judge for the District of Arizona David G. Campbell said with some 20,000 court employees currently teleworking it is difficult to predict how the unavoidable backlog of cases will be managed when courts begin to reopen. 

Campbell, who chairs the Judicial Conference of the United States Committee on Rules and Practice and Procedure, told lawmakers that bankruptcy courts are expected to see a surge in cases following the economic blow dealt by the pandemic. 

As for remote proceedings, the Arizona judge said court technicians are working to improve technology platforms as the country continues battling Covid-19. 

“We have been very conscious of security and the technology experts within the federal courts have been quite active in ensuring that the tools that are used are secure,” Campbell said. 

Taking up a concern from Arizona Congresswoman Martha Roby, the judge also said he understands that not every jurisdiction may be up to speed if Congress mandates the courts keep up remote proceedings after the pandemic. 

“Progress has been made but there are still clear limitations by matters external to the court, such as the availability of broadband or the funding of a local facility where individuals are housed,” Campbell said, referring to criminal defendants. 

But transportation, child care and job responsibilities are not barriers to participation in remote proceedings, McCormack argued, making the continued practice a worthwhile venture. 

“And it turns out Zoom is less intimidating for parties who appear without lawyers — at least this is what we have learned so far,” the chief judge said. “There’s something about the equalizing nature of all of the Zoom boxes being the same size that makes people feel more heard and more respected.”

Each of the three judges testifying Thursday recognized that some proceedings are inappropriate to hold remotely, with sentencings chief among them.

“My court just issued a unanimous opinion this week holding that a witness’ testimony in a criminal trial by Skype violated the defendant’s Sixth Amendment right to confrontation,” McCormack said. 

Still Democrats and Republicans alike voiced support for Congress outlining continued reliance on 21st century technology in the courtroom, rather than a return to the old norms. 

“The Supreme Court might return to its practice of forcing people to wait in long lines to cycle through a tiny packed courtroom,” Johnson warned. 

Melissa Wasser, a policy analyst with the Reporters Committee for Freedom of the Press, testified Thursday that since the justices made the historic shift to open oral arguments up to the public through live audio streaming, millions of Americans have tuned in. 

While some GOP members voiced concern over standardizing cameras in the judiciary, Virginia Representative Ben Cline said he hopes the Supreme Court will continue the practice of audio streaming long after the coronavirus crisis ends. 

Republican Representative Steve Chabot, a co-sponsor of the bipartisan “Eyes on the Courts Act of 2020,” H.R. 5645, said his home state of Ohio has allowed cameras in the courtroom without incident or spectacle. 

“There were lots of predictions early on about all of the terrible things that would happen,” he said, “and for the most part they have not happened.” 

The Democratic Johnson, meanwhile, said congressional funding for innovative changes to the courts is only “limited by the imagination of the judicial branch.”

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