Remote proceedings violate defendant’s rights, even with consent, say criminal defense attorneys

As courts scramble to adopt procedures for remote criminal proceedings under the Judicial Council's emergency order, some attorneys argue the very premise of participation by video or telephone violates their clients' constitutional rights, even if they consent.

The council's order, issued Monday, in part gives individual courts the authority to mandate remote criminal proceedings but requires they obtain a defendant's consent first. This came a week after the state's judicial leaders voted to extend the deadlines for pre-trial criminal matters and recommended remote proceedings.

In Sacramento County Superior Court, judges, defendants and attorneys have appeared in arraignments and hearings from remote locations since last week. Some defense attorneys have represented their clients remotely, choosing to abide by social distancing orders.

Others continue to appear alongside their clients while the judge remains in a separate courtroom.

In one such preliminary hearing on Monday, defense attorney Shelby N. Alberts, a Sacramento sole practitioner appearing remotely, filed two written objections arguing the nature of the proceeding violated her client's constitutional rights by limiting his ability to be present in the courtroom with witnesses and to have the assistance of an effective counsel by his side.

Judge Stephen Acquisto

Judge Stephen Acquisto overruled those objections, arguing there must be a balance between the defendant's right to a timely preliminary hearing and the governor's public health orders to stay at home to protect all parties from contracting and spreading the coronavirus.

"In my view, if we weren't able to conduct it remotely, then the alternative would be to find good cause to just continue," Acquisto said. "This is the best we can do given the dire circumstances that we have taken seriously."

Alberts said on Tuesday while the requirement to consent to remote hearings is a good step for the courts to take, she expects defense attorneys will file "an insane amount of writs and appeals" over the next two years arguing their clients' cases should be dismissed on the grounds they were denied their constitutional rights.

"I don't disagree that the courts and the judiciary are trying to make these reasonable accommodations in what's really an unprecedented situation," Alberts said. "But they're not sufficient. And frankly, I don't know if electronically they can be."

Prosecutors throughout the state also responded to the Judicial Council's order, criticizing it for not mandating a statewide uniform procedure.

"A defendant should not be in control of where or how a preliminary hearing is conducted and expose other participants to an increased danger of infection due to the choice of the defendant," Sacramento County District Attorney Anne Marie Schubert wrote in a letter to the council.

In a response, 4th District Court of Appeal Justice Marsha G. Slough argued this is not the time to "throw away the rights of the defendants because it will be more expedient," adding that "the crisis should not be used as means to remove civil liberties."

Criminal defense attorneys have been calling for the Judicial Council to mandate defendant consent to remote proceedings.

"If the court countenances the suspension of the constitutional and statutory rights of its citizens, citing the exigency of a public health emergency, we abandon the principles we were founded upon," Oscar Bobrow, president of the California Public Defenders Association, said in a letter to the chief justice last week.

Others, including San Francisco Public Defender Manohar Raju, argue there are safe ways to protect a defendant's constitutional rights during the crisis without mandating remote appearances.

"Court hearings conducted via videoconference are not equivalent to hearings where the participants are personally present," Raju said, adding the right of someone charged with a crime to be present in the courtroom during a hearing is one that should be protected.

"During times of crisis, it's especially important to safeguard these fundamental civil rights," Raju said. "Attorney-client communications and evaluations of witness credibility would suffer if hearings are not conducted in person."

Even so, some argue that even if a client consents to appear remotely, the very nature of the hearing provides grounds to later file motions to dismiss these cases once the pandemic subsides.

Eric Schweitzer, president of California Attorneys for Criminal Justice, said he would expect nullification of any proceedings where a defendant's rights to be present or publicly confront an accuser were "held in an atmosphere of coercion."

"It is better to require dismissal and re-filing within established norms, no matter how heinous an alleged crime, than to destroy the Constitution," Schweitzer said.