The future of trial-borne justice

Lawyers who regularly appear in court have witnessed the impact of the pandemic on the courts in bas relief and with much the same awe that astronomers observe the 66 million-year-old asteroid crater outlining the Yucutan Peninsula. And while such terraforming events are (hopefully) infrequent, both in astronomy and in the field of law, the impact of COVID-19 upon the way legal advocacy is delivered (and received) may be likened to the Chicxulub event's climate disruption, mass extinction and the adaptation of surviving species.

In scarcely more time than it takes a burning asteroid, we have witnessed the meaning of the word "appearance" go from its pre-pandemic iteration (now extinct) into something futuristic and evolving at a rapid rate. Built partly by necessity and partly by the exponential advance of ubiquitous computer technology, we now appear virtually.

Last week, during videoconference on December 9, Chief Justice Tani Cantil-Sakauye said: "I believe our way of hearing cases and our way of preparing cases for trial has changed forever." In her wisdom, perhaps, the chief left out the way that cases are tried. Is that because there remains but one way to try a case? Reasonable minds can differ, but in the words of one pre-trial inmate: "I don't mind a virtual trial, so long as I can do my time in virtual prison if I lose." As that inmate's lawyer, I tend to see it the same way he does. As much as I embrace the convenience and the global warming/carbon footprint thrift of being able to make virtual appearances, virtual evidentiary hearings, particularly trials, is a Rubicon which ought not to be crossed. At least in the foreseeable future.

Like those ancient life forms that survived the impact at Chicxulub, lawyers impacted by the pandemic can adapt or die. Survival of our species presently depends upon our ability to adapt. That requires a certain ability to compromise. But how much territory can we cede without losing our identity as trial lawyers? Our preservation in this novel and dangerous environment requires rapid evolution of our principles, our ethics and mainly, our collective intelligence. Our hive mentality presently interacts more than ever with the collective judicial mindset during every single remote appearance. Clumsily at first, like infants, judges and lawyers alike are trying to find the right equilibrium where interests of providing effective assistance and fair representation can coexist with those of our legal adversaries (without whom our reason for being evaporates) and with imperatives of the courts. The courts are evolving at an incredible rate, particularly in criminal procedure, a mega-consumer of court time and expense.

Per Chief Justice Cantil-Sakauye: "The courts have been tremendous in staying open -- a feat unto itself given all the various state and local orders ... We did a relatively smooth-ish transition to remote technology, and I'd like to say if the pandemic had hit three or four years ago we would not have been in the position we are in." And so "many, many hearings that involve purely attorney against attorney" will simply not revert to in person after the pandemic has passed. And caught in the midst of all this are our clients, many of them rural, aged or otherwise not computer savvy, something that Chief Justice Cantil-Sakauye calls the "digital divide".

Recent reports of funding for the judiciary seem optimistic. We should surely hope that optimism proves out because this "digital divide" can only be bridged by heavy reliance upon the judicial budget. Courtroom technology is expensive. In the immediate future, courts will have to carefully prioritize spending for technology or lobby for additional funds so that no one who can be included gets turned away. It's one thing to have your day in court. It's quite another to have your day on court TV. Nothing against Judge Judy, but it just isn't the same. Never has been, never will be. Trial being as it is, a right rather than a privilege. The trappings of trial must not be diluted by COVID-19-induced apathy. The time is now for us to demand and to expect real solutions that blend adaptation where it fits with preservation of core rights where it doesn't.

There are cases and controversies that can and will be made virtual. But certain components of judicial proceedings will simply not lend themselves to the new ways. At least not yet. Live confrontation and cross examination is itself severely hampered, if not rendered nugatory, by the installation of plexiglass barriers and the wearing of face coverings. Effective introduction of trial-quality evidence remotely might be theoretically possible at present, either in or out of court. However, the effective confrontation of witnesses presents one of the greatest imaginable obstacles to any type of justice, particularly criminal justice.

COVID-19 imperils the survival of trial-borne justice far more than it does the survival of an average citizen. Informed litigants can seek shelter by cost-benefit analysis to compromise for instance, the potential value of a tort claim with or without impediments to evidence introduction and effective cross examination. It happens every day. But in a criminal case, such options are clearly circumscribed. Absent circumstances where freedom itself is not on the line, the exchange of timely procedure for proper procedure places litigants in a real Catch-22. We witness this time and again in criminal courtrooms where irresistible forces of the right to speedy preliminary hearing and trial, hurtle at breakneck speed and impact the immovable logistics of increasingly scarce trial courtrooms. Courts will naturally search for and find emergency safety valves or cushions to these violent impacts by invoking various emergency powers. But at some point in time, invoking such powers risk comparisons to a past regime and a burning Reichstag.

Meanwhile, all historic and philosophic comparisons aside, people who are presumed innocent have waited virtually endlessly in jail for evidentiary hearings that continue to be delayed on account of this very real emergency. These unprecedented delays are often caused not only by lengthy and recurring jail quarantine, but also due to the spotty provision of videoconferencing facilities inside our jails.

California is reeling from a pandemic carcerial crisis of deadly proportions. While the governor, the Legislature, the electorate and justice organizations are doing all they can to alleviate prison and jail over-population, pre-trial inmates remain a reality into the immediate future. Even as various lawsuits and injunctions to prevent our jails and prisons from becoming prime COVID-19 vectors are being filed and litigated, the constitutional right to a speedy trial is not so elastic.

Inmates want their day in court. Inmates deserve their day in court. There is nothing you can do or say to console a person for time lost waiting. The human toll is enormous and yes, justice is as much a casualty of COVID-19 as any. Factor in COVID-19 and you get a powderkeg of righteous indignation. The horrors of solitary confinement are many. Perhaps well-meaning, many carcerial institutions are placed in the Hobson's choice of increasing solitary confinement or swelling the tide of COVID-19 transmission. The Orwellian reality of being held incommunicado is also on the rise. This translates into diminished public safety. A Minnesota Department of Corrections study recently found "that regular communication with loved ones resulted in a 13 percent drop in felony reconviction and a 25 percent drop in technical violations."

A single individual unnecessarily detained before trial is one individual too many, and the increasing use of the practice places tremendous wear on our constitutional system. United States v. Montalvo-Murillo, 495 U.S. 711, 723-24 (1990) (Stevens, J., dissenting, joined by Brennan and Marshall, JJ.) "Executive power to detain an individual is the hallmark of the totalitarian state." Id. As lawyers, we must zealously guard against even the advent such trends. We must demand the uniform provision of basic communication facilities between the jails and the courts.

California jails get tens of millions of dollars in commissions from communication giants like GTL, shifting the cost of maintaining these essential services to poor inmates and their families before judgment in their criminal matters. Worse yet, inmate communications facilities are notoriously unreliable, when they work at all. California criminal defense attorneys are often forced to hazard physical entry upon custodial grounds during the pandemic versus a greater likelihood of breach in attorney-client privilege through paid phone calls and videoconferencing, the availability of which varies from pretty good, to spotty, to nonexistent.

After many months of waiting in the regenerated air of these barred COVID-19 incubators, often sick and walking wounded inmates, delayed and deprived, are typically placed at the front of the roster for any available trial court by operation of law. See Penal Code Section 1048. Unfortunately, the promise of a trial rings hollow to many, given the impact that pandemic measures have upon the ultimate delivery. Jury trials and most evidentiary hearings are fire and ice to videoconferencing. A trial that might be otherwise be won on the turn of single facial expression cannot be recovered any more than the life of a person who succumbs fatally to COVID-19. After all, we're talking about someone's freedom. Absent a knowing and voluntary waiver, trial by jury is not the place to innovate, experiment or to denigrate anyone for demanding the absolute gold standard. Even during preliminary hearings, a lot more than "attorney against attorney" is required to happen if the outcome is to remain within constitutional norms. The playing field does not favor socially distanced advocacy on either side.

We are seeing a lot of litigation attempting to blend proper trial processes with COVID-19 measures from coast to coast and indeed across the globe. In May, a COVID-19-aware Nigerian court sentenced a man to death by hanging via Zoom. No word on whether any appeal ensued. One can hope, at least. While no one is suggesting that anything so extreme is on the cusp here, there is no foreseeable or viable option apart from videoconferencing or other impediments to effective lawyering until the pandemic emergency abates. Until that time, it is every trial lawyer's duty to demand such process as is due. In criminal cases, the courts must go farther and faster than they have to release as many inmates as possible. Minimum standards of videoconferencing facilities to be installed at the jails must also be promulgated and funded if basic court operations are going to remain viable. Every case that gets continued amplifies and prolongs the effects. It's cheaper to fund a little infrastructure than it is to abandon the duty to deliver swift and impartial justice. Thinning jail and prison populations buys time and maybe a little space, but that only goes so far. Long-term solutions will require courage and the capacity to reject outmoded notions about pre-trial guilt, public safety and risk assessment "tools" that many jurists refuse to abandon in the face of mounting pressure to do so in favor of individualized considerations.

Proposition 25 promised to release more inmates. It was a hollow promise and the failure of Prop. 25 at the polls is welcomed by those who favor human rights and the presumption of innocence over that of guilt. So too, on August 26, the California Supreme Court granted Kenneth Humphrey's request to restore the precedential effect of In re Humphrey, 19 Cal. App. 5th 1006 (2018): "[A] defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public."

Jurists who haven't yet heeded Part III of the Humphrey opinion (quoted in part above) need to consider abandoning two old canards about bail: "Guilt presumed for bail purposes" and "public safety bail." In the annals of jurisprudence, no greater oxymorons were ever contrived. The sooner the judiciary abandons this mythology, the sooner we can all focus on adapting the post-pandemic world of fair and effective trial by jury.

Next session the California Legislature is likely to consider various proposals to restore and define California's constitutional system of bail away from the orgy of pre-trial incarceration that arose during the Reagan, Deukmejian and Wilson years. Until such restoration measures are properly legislated, our focus must remain geared towards prevention of all but the most necessary pre-trial detainees which may just keep justice itself from becoming a fossil last seen at the onset of the 21st century. 