Courts work to bal­ance health, ac­cess

Pub­lic can’t see some ses­sions, while some have tech glitches

Orlando Sentinel - - Nation & World - By David A. Lieb

After her son was ar­rested for al­legedly throw­ing rocks at po­lice dur­ing a protest over racial in­jus­tice, Tan­isha Brown headed to the court­house in her Cal­i­for­nia home­town to watch her son’s ar­raign­ment.

She was turned away, told the court­house was closed to the pub­lic be­cause of coro­n­avirus pre­cau­tions. A day later, the Kern County Su­pe­rior Court in Bak­ers­field posted a no­tice on its web­site ex­plain­ing how the pub­lic could re­quest spe­cial per­mis­sion from ju­di­cial of­fi­cers to at­tend court pro­ceed­ings.

But prob­lems with pub­lic ac­cess have per­sisted, ac­cord­ing to a fed­eral law­suit filed Fri­day on be­half of Brown and sev­eral oth­ers who have been un­able to watch court ses­sions.

The sit­u­a­tion in Kern County high­lights the chal­lenges courts across the U.S. are fac­ing as they try to bal­ance pub­lic health pro­tec­tions with pub­lic ac­cess to their pro­ceed­ings amid the COVID-19 out­break.

The U.S. Con­sti­tu­tion guar­an­tees the right to a pub­lic trial, but some courts have held ar­raign­ments and other pre­trial hear­ings with­out the pub­lic watch­ing or lis­ten­ing. In some cases, the pub­lic had no means of par­tic­i­pat­ing. In other cases, the de­fen­dant’s fam­ily mem­bers, friends or other in­ter­ested res­i­dents weren’t aware how to gain ac­cess to spe­cial video feeds.

“The court­rooms are sup­posed to be fully pub­lic, any­body who’s in­ter­ested is sup­posed to be able to watch, and they have not been do­ing that,” said Sergio De La Pava, le­gal di­rec­tor of New York County De­fender Ser­vices, a non­profit pub­lic de­fend­ers of­fice in Man­hat­tan.

In Cal­i­for­nia, a coali­tion of civil lib­er­ties and open­govern­ment or­ga­ni­za­tions sent a let­ter this month to the state’s chief jus­tice doc­u­ment­ing nu­mer­ous in­stances in mul­ti­ple courts where the pub­lic was shut out of pro­ceed­ings, in­clud­ing the one in­volv­ing Brown’s son June 10.

“We’ve found wide­spread in­stances, to put it most bluntly, of court se­crecy,” said David Sny­der, ex­ec­u­tive di­rec­tor of the First Amend­ment Coali­tion, based in the San Francisco Bay area.

Brown said she was sur­prised to be turned away when her 24-year-old-son, Avion Hunter, was ar­raigned on a felony charge of as­sault­ing a po­lice of­fi­cer and mis­de­meanors of ri­ot­ing, un­law­ful assem­bly and re­sist­ing ar­rest dur­ing a June 1 protest over the death of Ge­orge Floyd at the hands of Min­neapo­lis po­lice.

“I can un­der­stand you don’t want a lot of peo­ple in,” Brown said. “But why couldn’t I go in, just one per­son, as his mom?”

Mem­bers of two me­dia out­lets were al­lowed in to the court­room for Hunter’s ar­raign­ment be­cause they filled out re­quests, said Kern County Su­pe­rior Court spokes­woman Kristin Davis.

When cases of COVID-19 started mount­ing in March, many courts shut down be­cause of con­cerns about staff, at­tor­neys, de­fen­dants, ju­rors, wit­nesses, me­dia and mem­bers of the pub­lic all crowd­ing to­gether in court­rooms. Many courts later be­gan con­duct­ing some pro­ceed­ings re­motely, us­ing video feeds of de­fen­dants from jail and at­tor­neys from their homes or of­fices.

It’s un­clear ex­actly how many peo­ple have been de­nied the abil­ity to ob­serve court pro­ceed­ings, be­cause it’s dif­fi­cult to track the thou­sands of lo­cal courts across the U.S., said Bill Raftery, a se­nior an­a­lyst at the Na­tional Cen­ter for State Courts.

“Has it hap­pened? Yes,” Raftery said. But he said court of­fi­cials are try­ing to bal­ance “the idea that the courts have to be open as much as pos­si­ble con­sis­tent with not spread­ing a mass con­ta­gion.”

In Chicago’s home of Cook County, Illi­nois, the cir­cuit court in­cludes a link on its web­site to a YouTube chan­nel al­low­ing any­one to watch its pro­ceed­ings. The video feed in­cludes a warn­ing that peo­ple record­ing or pho­tograph­ing the livestream­ed ses­sions could be pe­nal­ized for con­tempt of court.

The re­mote hear­ings gen­er­ally seem to be work­ing. But vol­un­teer court ob­servers ex­pe­ri­enced some tech­ni­cal dif­fi­cul­ties dur­ing a coordinate­d ini­tia­tive to mon­i­tor pro­ceed­ings last month, said Shar­lyn Grace, ex­ec­u­tive di­rec­tor of the Chicago Com­mu­nity Bond Fund, a non­profit group in­volved in the mon­i­tor­ing project.

Re­mote court pro­ceed­ings also have been used in civil cases in some states, with mixed re­sults.

The Mis­souri Supreme Court has of­fered an au­dio livestream of its re­mote pro­ceed­ings while ex­clud­ing the pub­lic, the at­tor­neys and most of the judges from its court­room. But the livestream failed dur­ing a June 15 hear­ing on a chal­lenge to the state’s ab­sen­tee vot­ing re­quire­ments to be used dur­ing the coro­n­avirus out­break. The court posted an au­dio record­ing on­line about an hour later.

Some courts, like those in New York City, have de­clined to post live video feeds on their web­sites. In­stead, as they grad­u­ally ramp up pro­ceed­ings, the city’s courts are al­low­ing a lim­ited num­ber of peo­ple to en­ter court­rooms where they can lis­ten to au­dio of re­mote hear­ings or get a one-time video link to watch, said Re­gan Wil­liams, se­nior clerk in Man­hat­tan’s crim­i­nal court.

New York’s ar­range­ment “may in fact be rea­son­able un­der the cir­cum­stances” as a way of en­sur­ing that the de­fen­dants’ in­ter­ests aren’t harmed by peo­ple record­ing the hear­ings, said Dou­glas Keith, a coun­sel at the Bren­nan Cen­ter for Jus­tice’s Democ­racy Pro­gram at New York Univer­sity Law School.

But hold­ing hear­ings in which the judge, de­fen­dant, at­tor­neys and the pub­lic are in sep­a­rate places can weaken ju­di­cial ac­count­abil­ity, he said. When peo­ple are present in a court­room, judges and at­tor­neys may be more aware of “the sheer weight of their re­spon­si­bil­ity,” Keith said.

In New Or­leans, an­other city hit hard by the coro­n­avirus, courts that had been shut­tered to the pub­lic be­gan hold­ing Zoom pro­ceed­ings in June.

The court’s web­site di­rected the pub­lic to contact a judge’s of­fice to get the ac­cess code to watch par­tic­u­lar pro­ceed­ings. But few peo­ple ac­tu­ally have done so, said Chief Judge Karen Her­man of the Or­leans Par­ish Crim­i­nal District Court.

Her­man said the courts plan to re­open to the pub­lic July 6, with lim­ited seat­ing be­cause of so­cial dis­tanc­ing.

BETH S. RIGGERT/SUPREME COURT OF MIS­SOURI

Supreme Court Clerk Betsy AuBu­chon, left, and Chief Jus­tice Ge­orge Draper watch ar­gu­ments from a mon­i­tor June 15 at the Mis­souri Supreme Court.

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