The judicial system is moving to virtual hearings. Here's why that's a problem

This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.

When Spencer Clauson, a student at Tulane University in New Orleans, signed up to be a volunteer court watcher earlier this year, he expected to sit in courtrooms to help track things like the bonds set or the race of defendants. It’s how the nonprofit group Court Watch NOLA gathers data on the decisions judges, prosecutors, and defense attorneys make.

But Clauson recently found himself on a speakerphone call, struggling to follow along as a judge on the other end of the call ran court using a separate video conference platform — a new reality in courts across the country as they have shut their doors and moved online in response to the coronavirus pandemic.

“When I was in court, I could hear all of the [public] defenders, the defendants, and really have a pretty cohesive understanding of the case. That was definitely not the case on the phone,” Clauson said. On the phone call, he understood only about a quarter of what was said — mostly just from the judge. Five cases into a 15-case schedule, Clauson was inadvertently booted from the line, and missed the rest of the day’s defendants.

Monitoring court hearings has become difficult, in some cases even impossible, for dozens of court watch programs scattered throughout cities and towns in the country. They rely on volunteers to sit in open court and take notes in the interest of transparency and accountability. But they said their access has been slowed or halted as virtually every system in the country suspended or reduced public court and moved online during the pandemic.

“It changes people's behavior — judges set lower bail — when they know court watchers are watching and they're being held accountable.”

In New York City, anyone wanting to see a hearing has to go to the courthouse and watch on a screen there, possibly risking contagion. In Los Angeles and Miami, officials have not given court watchers a way to join their courts’ video conferences. In New Orleans, access has depended on individual judges, with some being more reliable than others.

It’s not just a matter of convenience, the court watchers said. Public trust in what happens in court is eroded when they — or anyone else — can’t witness it, they said, and their presence helps ensure the courts function as they are supposed to.

“What we've seen over the past few years is that our presence really does matter,” said Zoë Adel, a lead organizer with the New York City court watch. “It changes people's behavior — judges set lower bail — when they know court watchers are watching and they're being held accountable.”

To be sure, most judges and court administrators have had little choice but to close courthouses under state orders or health guidelines aimed at slowing the virus. To be able to conduct hearings that can’t be postponed, they are joining many other Americans in adapting quickly to online platforms many had never used before, leading to technical problems. As NPR reported, other public meetings that used open online conferencing have at times been targets of harassment.

“This was the first time we've done Zoom proceedings, and we rolled it out fast,” said District Court Judge Keva Landrum in New Orleans, referring to a popular video conference platform. She said judges wanted to make sure it would work before finding out how to allow public access. “Now that it has been going well and judges are more settled with it, I think judges will be increasingly willing to provide access to interested parties,” she said.

Shortly after speaking with Landrum, The Marshall Project was granted access to observe a magistrate court session on Zoom, and faced no difficulties following along. On April 11, Landrum provided access to Court Watch NOLA moving forward.

The move from physical court to online conferencing got a boost in the CARES coronavirus stimulus act, which allows the historically camera-averse federal judges to use video for some hearings during the national emergency. But the hastily written law left out language guaranteeing public access to those video proceedings.

On state and local courts, access has been spotty as each court comes up with its own rules on the fly, court watchers said.

The shift is happening so rapidly that legal observers are still largely playing catch up. Douglas Keith, counsel at the Brennan Center for Justice, a progressive advocacy organization, said the group was still piecing together the constitutional questions that video court proceedings might raise.

“How will remote hearings affect the quality of representation in criminal cases, and the ability of defendants to speak to their lawyers with the frequency and privacy they need? How will appearing on video affect the jury’s and judge’s view of a defendant?” he said, to name a few.

Keith noted that in the 1984 case Waller v. Georgia, the U.S. Supreme Court declared public trials to be “essential” for the people accused because “the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.”

“The courtrooms aren't a safe place to be in a pandemic, but neither are the holding cells.”

Public access to the courts is particularly important during disasters, said Simone Levine, executive director of Court Watch NOLA in New Orleans.

"When a community is in an emergency, the community's fear and distrust of public agents and officials increase and in these times it is integral that public officials increase their transparency,” she said.

The New York City program, organized by some public defenders, the grassroots VOCAL-NY group, and the Brooklyn Community Bail Fund, focus on first appearances, when judges typically decide whether a recent arrestee will be detained pretrial or allowed to go home. They’ve fully stopped observing courts in the midst of the city’s stay-at-home order. That concerned Adel, “especially at a time like now where, if a judge sets bail, or someone is otherwise incarcerated pre-trial that the stakes are so much higher,” given the acute risk of contracting coronavirus in jail.

Julie Mente, a New York court watcher who has been volunteering since the program launched in 2018, said she worries about not being in court. “The courtrooms aren't a safe place to be in a pandemic, but neither are the holding cells,” Mente said. “So I understand why we're not there and why it's being done differently, but I definitely worry about the public not having easy access to those proceedings.”

The New York Office of Court Administration noted that the monitors in the courthouse satisfy the need for public access in these emergency circumstances. “The purpose of our going virtual is for the health and safety of all involved in the proceedings: Judge, attorneys, court staff, security, and litigants. All other protocols remain the same,” said spokesperson Lucian Chalfen.

“There's no way that this isn't going to cause downstream disaster.”

He said hearings are not being posted on a wide online platform, like YouTube, because the court could not prevent people from recording them or rebroadcasting them on their own — restrictions judges often impose during regular times, in New York and across the country.

At the same time, going to the courthouse to watch proceedings on a monitor would arguably put observers in violation of the statewide “stay home” order, and of course, at risk of contracting the virus.

Court watchers in Los Angeles, where local courts have not made public access to online conferences possible, said they’ve shifted to data analysis to try to force accountability. For example, they monitor listings of cases in the court’s online system to track prosecution of petty misdemeanors. The group argues that such arrests are a threat to public health during a pandemic. Kath Rogers, a lead organizer of Court Watch Los Angeles, said as recently as March 28 they found prosecutions on the court calendar for the minor offenses of “personal property on sidewalk” and “blocking sidewalk.”

“It doesn’t give us a complete picture,” Rogers said of the listings. “But it’s the best we have at the moment, because the courts have not implemented the technology necessary to ensure public access to the courts.”

In Miami, a new court watch program, barely two weeks into launch, was put on pause by the pandemic, said Ayodele Gomih, its lead organizer. Gomih said that while she and fellow court watchers would look for ways to observe hearings online, their most immediate concern was “getting folks out” of jail and prison.

“There's no way that this isn't going to cause downstream disaster,” Gomih, an epidemiologist by training, said in reference to the close quarters and lack of protective measures in jails. “You have to act now, so that’s got to be the priority.”

Even under the best of circumstances, court is still different on screen than when everyone is in the same place, said New Orleans court watcher Julie Cass.

A semi-retired journalist, Cass listened to her most recent municipal court hearing on Zoom. Some things were the same: There was a judge and a clerk, a public defender, and a client sitting in jail in an orange jumpsuit. But it was also different. “It feels so distant and far away,” Cass said. “You really have much more of a sense of the people in person, you see their family, their body language.”

New Orleans has the oldest continuously operating court watch effort, born in the chaotic aftermath of Hurricane Katrina in 2005. The storm laid bare the failures of the courts, police, and city jail, spurring oversight and accountability efforts. In the civic revival after the storm, volunteers formed Court Watch NOLA to keep an eye on local courts. The group has catalogued everything from excessive delays and use of continuances, to how some judges were using the results of unconfirmed drug tests to put people behind bars.

Levine said that as the nation deals with a pandemic, which some have compared to Katrina, how judges and court administrators respond may lead to similar civic engagement and more court watch programs elsewhere.

“If they're not listening to the concerns of people in the community, that is absolutely what's going to happen,” Levine said.