Pandemic delays justice in some criminal cases
By Roy Ockert Jr.
Our American system of justice guarantees a number of specific rights to any person accused of crime, but the coronavirus pandemic has caused the suspension of some of those rights.
The Sixth Amendment to the U.S. Constitution says:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
How do you provide those rights when you can’t hold court?
In mid-March the Arkansas Supreme Court ordered the suspension of most in-person court proceedings, other than a handful of trials that were already under way at the time. That order has continued in force and is similar to what most state court systems, as well as the federal judiciary, have done.
Under a May 8 administrative order all state courts this week can resume conducting in-person hearings with certain restrictions designed to minimize the spread of the coronavirus.
An April 17 order continues all civil and criminal trials for the Eastern District of Arkansas until at least May 29 but adds that plans are under way for resumption in June.
Arkansas’ circuit judges have been innovative in utilizing new technology to keep their courts open for hearings. Zoom has become the computer teleconferencing application of choice for the courts. It’s easy to use and free except for the host.
Three judges of the 2nd Judicial District, which covers Northeast Arkansas, discussed the effects of the pandemic on the court system during a recent meeting of the Kiwanis Club of Jonesboro, held via Zoom.
Judge Melissa Richardson appeared in a courtroom setting, thanks to a virtual background, and explained that makes a hearing more realistic for those appearing before her. Judges Cindy Thyer and Ralph Wilson were in their offices. Or were they?
The judges explained that they have been keeping as up-to-date as possible on their caseloads so that when trials can be held, the system won’t be overloaded. That’s a real danger, especially in regard to criminal cases.
The Sixth Amendment guarantees each defendant “a speedy and public trial” by an impartial jury. Under the best of circumstances that’s a time-consuming process. A simple trial can easily last from two to five days; more complicated cases can stretch to weeks.
The fact is that a huge majority of criminal cases are decided by guilty pleas, and those can be handled by teleconferencing. Some pre-trial hearings can also be done that way. And conceivably a bench trial (trial by judge) could take place via Zoom or some other virtual application.
But that requires the defendant to waive a jury.
“Speedy” may become a huge issue. A March 19 article by Matt Reynolds in the ABA Journal quotes ABA Criminal Justice Section chairman Kim Parker as pointing out that “most states have statutory speedy trial limits and that the impact of the virus is going to overwhelm dockets in courthouses all over the country.”
Those speedy trial provisions have been suspended for most defendants, but sooner or later the clock will start ticking again. A defendant who thinks he or she might get off because of the state’s inability to bring the case to trial is certainly less likely to waive a jury.
That’s why Arkansas judges have been pushing to handle as many cases as possible through teleconferencing.
Even a “virtual” bench trial poses a challenge, perhaps even constitutional questions. The requirement for a public trial can probably be satisfied by posting the meeting ID and password available through a Web site and-or news organizations.
But would it satisfy the right to confront witnesses if that can be done only on a computer screen? Must the assistance of counsel be in person?
For the judge who can see only the head and shoulders of a witness on a small screen, is that good enough to determine the credibility of the witness?
Further, everyone who has used technology knows that the quality of the devices and Internet connection used can vary widely from one participant to another. What if the sound is bad? What if the camera angle is too high or low? Extraneous noise can be a problem. High-speed Internet might not be available for some.
Teleconferencing with both audio and video is far superior to applications that provide audio only, but they certainly can’t match personal interaction.
A trial by jury using teleconferencing would surely be impossible. The sheer number of people needed to conduct a trial would be overwhelming from a logistical standpoint, especially considering that some things can’t be heard by all participants.
“A basis for conviction has always turned on a jury’s ability to assess the demeanor of the witness firsthand,” Locke Bowman, executive director of the MacArthur Justice Center in Chicago, told the ABA Journal. “When you take that away, you’ve lost something precious.”
Technology is allowing the courts to stay open, but justice can’t be postponed indefinitely.
Roy Ockert is a former editor of The Jonesboro Sun, The Courier at Russellville and The Batesville Guard. He can be reached at royo@suddenlink.net.