Last August, a the world’s most infamous sex criminals – Harvey Weinstein[…]was to appear virtually in a New York courtroom to seek his extradition to California to face it. Reporters, due to Covid-19, mainly frequented from a distance. They were promised a video. They didn’t even have audio. This has left much of the press – which serve the public’s eyes and ears – in the dark.
The procedure ended before the link could be fixed. A transcript and bundled video were provided later, but the issue prevented much of the public and press from seeing and hearing what had happened in the courtroom.
The country’s legal systems have long struggled to uphold the principles of the First and Sixth Amendments, which establish the rights public access and fair and open trials, respectively. The pandemic has made matters worse. While many courthouses have closed or significantly limited in-person proceedings, officials have deployed video and conference calls. Many companies and some schools have found ways to operate using platforms such as Zoom, but the experience of national courts over the past year is scattered: some have worked well with remote participants, while others have worked well with remote participants. others have struggled with the technology.
Even conference calls – used for some pre-Covid proceedings – have proven to be unpredictable and buggy. In a recent U.S. District Court hearing regarding documents related to Jeffrey Epstein partner Ghislaine Maxwell, Apparent QAnon followers compound in that the public line was overwhelmed. Dozens of people, including many journalists, could not listen.
Even when remote courtrooms function well, lawyers say it is difficult to argue cases and present obstacles for those accused of crimes to defend themselves.
“My client has the right to confront the government and hold it accountable,” said Tina Luongo, a lawyer in charge of the criminal defense practice at the Legal Aid Society of New York. “They have the right under the Constitution to confront witnesses and be present to hear what these charges are.”
In a report from last year, NYU’s Brennan Center mentionned remote procedures “may unnecessarily endanger the rights of individuals”
Virtual procedures complicate – and in some cases prevent – routine communication between lawyers and their clients. Lawyers often speak to clients in subcommittee rooms – separate sessions in a larger video conference – before the proceedings, then join the main room for official business, Luongo said.
The setup creates a problem if a lawyer wishes to consult with a client at a hearing. “I can’t do this virtually. To do this, I have to say to the court: I’m sorry, your honor, can you put us back in a subcommittee room? said Luongo, who now oversees court lawyers. “Sometimes the judges don’t.”
Mitha Nandagopalan, a lawyer with the New Mexico Law Office of the Public Defender, participated in video trials during the pandemic for misdemeanors before a judge, without a jury. Being separated from a client has an impact on the quality of the representation, says Nandagopalan.
“The fact that my client was not in the room with me made it more difficult,” said Nandagopalan. “At least if we’re in the same room, my client can pass me notes if they find out something a witness said.”
Sometimes, lawyers for New Mexico public defenders bring clients into the office, so they can be physically together when they appear in a virtual proceeding. This potentially exposes the two people to Covid-19. But customers benefit.
In one situation, Nandagopalan said a client noticed that a witness’s testimony did not match his recollections of the events. The client provided Nandagopalan with questions for cross-examination, which elicited useful testimony for the defense.
“I’m not sure it was something that we could have caught, or that my client could have passed on to us quickly enough or precisely enough,” if the client was not with her in the office, Nandagopalan said.
In January, a Manhattan judge “reluctantly” postponed the scheduled contempt trial of lawyer Steven Donziger, who spent more than 20 years suing Chevron for pollution in Ecuador. Donziger’s lawyers said holding the trial from a distance would be “manifestly impossible”.