State’s court system hit hard
Low-tech practices hindered ability to handle pandemic
The coronavirus crisis is having a devastating effect on the state court system and, short of a vaccine that returns life to normal, no one is prepared to predict how it will emerge as court administrators work to reconstruct the post-pandemic wreckage.
But there is agreement on another point: Decades of austerity budgeting has left the Judicial Branch in the electronic stone age, unprepared and ill-equipped for a natural catastrophe. While court clerks in other states are accessing case files from digital databases, Connecticut still relies on a criminal case filing system based on hand-written, paper records.
“This pandemic caught everybody by surprise, but it especially hit the Judicial Branch very, very hard,” said Bridgeport lawyer Frank Riccio. “What the pandemic has forced the Judicial Branch to do is to really catch up on 20 years of advancements in about two months. They were very far behind with technology, with infrastructure and the like.”
Another lawyer was less charitable: “When we opened up the hood of the car and got a glimpse of what was inside on technology, I was stunned. I was absolutely stunned.”
Others, like Bridgeport lawyer Monte Frank, consider the Judicial Branch and its longtime Chief Court Administrator, Judge Patrick L. Carroll III, victims of a General
Assembly that, confronted with a string of deficits, has consistently refused to appropriate money for the kind of technological upgrades implemented decades ago across the federal court system.
“For years, the Legislature underfunded the branch’s technology,” Frank said. “And Judge Carroll — as I understand and, in fact, I know — every year would request technology increases in the judicial budget. And so when the COVID-19 pandemic struck, the judicial branch was woefully unprepared from a technology standpoint. In about 10 weeks the branch has accomplished virtually 10 years’ worth of technology improvements.”
Riccio and Frank chair committees of the Connecticut Bar Association that are advising Carroll, who was forced by public health considerations to impose a near system-wide shutdown in March and, three months later, is leading a frantic effort to restore function to an essential branch of government.
One lawyer compared Carroll’s mission to turning the Titanic. Others predict it could take months or years to complete the job, depending on vaccine availability and its acceptance by the public. It could be a year or more, some judges said, before the courts even are able, once again, to deliver the bedrock of the justice system, jury trials. to distribute each month to the Connecticut Bar Foundation, which in turn distributes the money to legal aid societies that provide free legal services.
The foundation received $1.125 million, based on fees for 16,874 filings, in one month immediately before the court closure. In April, the figure fell by more than half, to about $552,000, based on 7,498 filings.
There is concern among legal aide organizations that filings — and the subsidies they generate — could continue to fall as the full impact of the closure is felt and the state prepares to lift emergency bans against evictions and foreclosures.
“The funding of legal services in Connecticut has decreased dramatically as a result of the decrease in court operations,” said Natalie Wagner, the Connecticut Legal Foundation’s executive director. “And that is especially problematic because the need for people who can’t afford legal services is increasing exponentially, as the unemployed population is growing.”
A portion of the state’s 143 Superior Court Judges, with salaries of at least about $173,000, have not been working during the closure. The Judicial Branch said last week it could not provide “an accurate picture” of how many judges were working. Private arbitrators and mediators, on the other hand, were getting calls from businesses clients who want to resolve disputes that do not meet the court system’s “priority 1” threshold. all sorts is increasing as the system reopens incrementally. Dagostine said the branch created a new dismissal docket to make sure charges are dismissed in a timely manner in cases involving defendants who complete programs such as family violence and alcohol education. He said the rights of defendants to appear in court have been scrupulously protected and no one has been held in jail undeservedly.
At the same time, Dagostine said the branch has been buying equipment and training staff in order to expand its video conferencing capability, which allows judges to convene hearings with participants in remote locations — something the federal courts began seamlessly at the outset of the pandemic. Remote conferencing supports social distancing because groups of lawyers and clients don’t have to congregate while awaiting hearings in cramped courtrooms.
“We’ve been doing the priority 1 from day one,” Dagostine said. “We have been doing the motions for review of bail. We’ve added dockets – the dismissal docket. And we are going to have the sentencing as well. And we are going to continue to find ways to hold these hearings while limiting the amount of people that have to come to court.”
Not everyone agrees. Greenwich lawyer Philip Russell said it has been a struggle to arrange hearings in priority 1 cases. He said the court system’s pre-pandemic backlogs and its technological disadvantages have exacerbated new problems associated with the shutdown. After weeks of trying unsuccessfully to arrange hearings on priority 1 criminal cases, Russell took the extraordinary step of filing habeas corpus petitions — writs requiring that a person challenging detention be brought before a judge.
“I filed designated priority 1 applications relating to criminal cases for modifications of sentences, for bail review,” Russell said. “And none of them were heard even though we spent more than 40 hours of attorney time making efforts to make contact with the appropriate judicial branch authorities. For the most part, the prosecutors involved were conscientious. But they were unable to get access to their files. And in the instances when they had access to their files, they were unsuccessful in getting the matters docketed to be heard by a judge.”
After weeks of trying to get into court, Russell said his office filed two habeas corpus petitions on June 17. He said the tactic worked: The following day the court clerk scheduled hearings.
“I can affirmatively state that there was no such thing as access of priority 1 for members of the bar or for people who were confined unless the applicant was a police agency or a state’s attorney,” Russell said. “We had no access to court of any kind. Even with prosecutors who wanted it to happen.”
Robert Berke, a lawyer in Bridgeport, sued Carroll earlier this month, asserting that the extensive court closures violates the rights of both criminal defendants and their lawyers. He sued on behalf of three defendants, with both priority and non priority cases, and fellow defense lawyer James Ruane, whose age and health condition allegedly make him particularly vulnerable to COVID infection.
The suit complains the defendants all have been denied hearings. And it says that, even though the branch insists video conferencing is in wide use and is being expanded, private lawyers such as Ruane have been required to appear in court and in close proximity to criminal defendants, in violation of social distancing guidelines. On the other hand, the suit contends, judges, clerks and government lawyers are all safely isolated from infection in their private offices.
What’s more, Berke contends Carroll was aware the court system was vulnerable to a natural calamity such as a pandemic, yet did nothing to prepare. The COVID closure could be especially damaging since courts routinely have “taken weeks to recover” from a brief closure due to snowstorms, the suit asserts.
“Notwithstanding the unpreparedness of the Judicial Branch to deal with the COVID-19 pandemic, the defendant, in the past thirteen weeks, has not fulfilled his statutory charge of ensuring the prompt disposition of cases and the proper administration of judicial business,” the suit contends.
Carroll was not available to discuss the suit or anything else associated with the court closure.
Dagostine, his deputy, said the branch is continuing to expand its video conferencing capability, while working to reopen the system in ways that protect the health and safety of both branch employees and parties to litigation.
“It is an unprecedented time,” Dagostine said. “I think all the stakeholders feel that access to justice is so important and we are just working tirelessly to ensure that matters are processed efficiently within the context of the current situation we are in. One of the things we have done since this has happened is, yes we have increased our technology to make things more efficient in working with other agencies like the Department of Corrections.”
State records show that the Judicial branch has spent more than $2.5 million since the March 10 emergency declaration on computer hardware, software and consulting services, although the branch says most of that spending
Video conferencing may be the goal, at present. But it already led to some grumbling. Defense lawyers worry about the right to confront a witness — when the witness may be 50 miles away in a private office. And if only a witness’ face appears on a video screen, who is to say he is not being coached by someone off camera?
There also is concern about whether video hearings erode the right to an open and public trial — a trial at which the presence of the public acts, presumably, as a check on judicial abuse. Denial of a public trial could create grounds for appeal. Some lawyers are wondering whether the state will be able to admit the public to video proceedings.
The federal courts, light years ahead in technology, solved the problem with an on-line case docketing system that the public can use to obtain instructions for accessing video hearings. The state has no comparable system.
Should the state try to reopen courts, many lawyers are asking how the branch can accommodate hundreds of defendants, victims, litigants, family members and others. Some lawyers have said some courts — because of age, size and design — could not accommodate the crowds while complying with social distancing recommendations.
“I think that is the issue, not only in Connecticut but in all other jurisdictions,” Dagostine said. “Not only do you have 400 cases on the docket. But each case has multiple parties. There are victims and there could be victims’ families. Different service providers have to be present. So how do you quantify that? With the social distancing guidelines that is a consideration that we have to … consider. That’s one of the reasons why we have been utilizing video conferencing — especially for the incarcerated population.”
Perhaps the greatest challenge will be a return to jury trials. Under Connecticut’s antiquated system of empaneling juries, scores of potential jurors are summoned to court. Often, they are packed into a small, unventilated room where they wait be summoned individually to a courtroom and questioned about their fitness to serve. Those chosen to serve are usually confined together in another small room, when not sitting should-to-shoulder in court, watching a trial.
State Rep. Steve Saftstrom a Bridgeport Democrat and cochair of the legislature’s Judiciary Committee, said the branch hasn’t yet approached him about money.
“I think they are still trying to figure out how to get things back up and running and doing so as safely and as expeditiously as possible,” he said. “I think it will be several weeks or months until we sort through this and figure out what the new normal is going to be. Don’t forget you are really just starting to see court houses starting to open and civil judges starting to rule on certain motions. There is still a wide swath of judicial operations that are effectively stalled.”