Challenges arise as the courtroom goes virtual

Dashawn Parks arrived at the George Leighton Criminal Courthouse Friday to attend his son Rashae’s bond hearing. But when he learned the hearing was taking place over video, and that he wouldn’t be able to see Rashae in person, he left.

To reduce the spread of coronavirus, the Cook County Circuit Court has rapidly adopted virtual court hearings, with judges, attorneys, court reporters, and translators communicating via video conferencing software from their homes or offices. But the rollout has been bumpy and, in some cases, has left criminal defendants and family members, like Parks, unable to participate.

“It’s miserable,” Parks said. Although he could have joined his son’s hearing via video from the jury administration room, he has bad eyesight and didn’t want to see his son through a screen.  “It’s just that you stand in front of a camera and then you walk away…The whole process is inhumane.”

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Since the coronavirus outbreak hit Chicago last month, the vast majority of court operations have been put on hold, with divisions operating with a skeleton crew of judges and staff. Non-essential hearings have been rescheduled until at least May 18, when the scale-back is currently scheduled to be lifted.

The hearings that do take place are conducted over the video app Zoom and criminal court hearings are broadcast on YouTube. Though most court hearings are supposed to be public, non-criminal proceedings are currently not being live streamed, making them inaccessible to the public.

Injustice Watch observed video court hearings over several days this week, including a hearing in the child protection division at a judge’s invitation. In that hearing, matters proceeded smoothly—everyone could hear and see each other, attorneys were able to air their objections, and the judge was able to reach a conclusion.

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The court will suspend all non-essential matters for 30 days starting Tuesday, the chief judge told presiding judges in a three-hour meeting on Friday.

But technical difficulties marred the process in some criminal courts, especially when multiple cases were being heard. Judges and attorneys did not always have the same set of paperwork in front of them. Unstable internet connections led to sound issues. And delays were routine when a certain form or piece of information was not at hand.

One difficulty arises when a party lacks access to a computer or smartphone, and calls into a hearing via a regular phone. The hearing can be confusing for the phone user and they are unable to use the breakout room function, which an attorney and client can use to confer privately mid-hearing.

The court is working to resolve issues as they arise, said Pat Milhizer, a spokesman for Chief Judge Timothy Evans.

“Any issue that comes up is going to get addressed,” Milhizer said. “We’ll just keep working on this in these unprecedented times.”

Video bond court, once deemed unconstitutional, is now the norm

The video hearings add particular difficulty to crucial parts of the bond process for family members, defendants and their attorneys. The last time the court tried to implement video bond hearings, in 1999, it was shut down after a lawsuit alleged it was unconstitutional.

In a typical bond hearing, where a judge decides whether to jail someone pre-trial or release them, family members can attend as a way to show that they are able to support their loved one if released and ensure they come to future court dates.

“Some judges flat-out say, in their pre-trial soliloquy that they give, that it’s important to see family and the support that they have,” said David Gaeger, a criminal defense attorney.

But with virtual hearings, even as attorneys and court reporters attend from the safety of their homes, family members must be physically present in the jury administration room of the courthouse to participate, which could put them at risk for the virus. Gaeger and several public defenders said they have not seen any family appear for video bond hearings, either because they are not aware of it or have chosen not to take part.

The video hearings also make access more difficult for defendants, especially those who are already being held at the Cook County Jail, a hotbed for the pandemic.

Amy Thompson, deputy of central operations for the Cook County Public Defender’s Office, said public defenders have been able to talk privately with their clients before bond hearings via Zoom, but that they have less time per client than before the scale-back, especially after the hearing.

“I don’t think it’s anywhere near perfect. They’ve made as many accommodations as they practically can,” Thompson said.

The court tried to implement video bond once before, in 1999. It ended with a lawsuit.

Defendants charged with felonies were presented in the courtroom via a black-and-white video feed on a TV with poor resolution, said Locke Bowman, executive director of the MacArthur Justice Center at Northwestern University’s law school, who represented the plaintiffs in the class-action suit.

“The hearings proceeded almost as if the defendant was not present,” he said. “There was no practical opportunity for the defendant and lawyer to consult with each other during the hearing.”

The lawsuit alleged that the video system denied defendants their constitutional right to due process. In response, Chief Judge Timothy Evans shut the video system down in 2008.

Of course, video technology has improved a great deal in the past two decades, and defendants, attorneys and judges can now see and hear each other much more clearly. Another major difference between that system and the current one, Bowman said, was the rationale. The previous system was intended as a time-saving measure, whereas now it is being used to reduce the risk of coronavirus.

“The State’s interest in using the closed-circuit TV technology in the present circumstance is substantially greater. This is a factor that affects all of us because of the way the virus spreads,” he said.

Though the circumstances demand extraordinary measures, attorneys are looking forward to bond court returning to normal. Gaeger said that when someone is charged with a crime, they have a right to look the judge and the prosecutor in the eye.

“[A video hearing] does not perfectly translate to our business,” Gaeger said. “When your freedom is at stake, you’re allowed to be present in court.”

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