December 11, 2020 Articles

Criminal Litigation in the Time of COVID-19

Observations and advice for young lawyers about navigating this new litigation landscape.

By Jin-Ho King
Technology has mitigated some of the challenges that criminal litigators face.

Technology has mitigated some of the challenges that criminal litigators face.

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The COVID-19 pandemic has thrown American life into disarray, with people facing hard choices at every turn on how to perform essential work while minimizing risks to individual and public health. The criminal justice system plays a critical role in the functioning of our society, and the people who keep the system running face these same hard choices. Over the past several months, litigants, attorneys, and courts have strived to balance speedy trial, jury trial, confrontation, and public trial rights with best practices for social distancing, masking, isolation, and quarantine.

Bridging Distance with Technology

Technology has mitigated some of the challenges that criminal litigators face. Whereas pre-COVID-19-era criminal litigation required meeting with clients, witnesses, and support staff and spending time in court, the pandemic has shifted many of these tasks online, whether through expanded electronic filing, more frequent videoconferences, or “Zoom” court hearings.

Joel Chorny, an attorney in the Law Offices of the Pima County Public Defender in Arizona, has been using these technologies as his office, the jails, and the courts have made them available. “The trial courts now accept e-filing,” he said, and “telephonic and video appearances” are the new norm. He noted that some of these changes—electronic filing in particular—had long been anticipated but that the pandemic has served as an important final impetus for courts to implement them.

Mike Torres, an assistant public defender in the Appellate Division of the Maryland Office of the Public Defender, agrees. “The trend has been to move things electronic. [The] infrastructure is being addressed,” he said, because the pandemic has made it clear that “these are things that we need to fix now.” Torres has seen expanded electronic filing and remote hearings in his jurisdiction. “It’s just one of those crossroads. These changes started with COVID. I’m hopeful that the changes are for the better.”

To facilitate remote hearings, many courts have embraced internet-based videoconferencing solutions—including software such as Zoom, Microsoft Teams, and Cisco Webex. A trial court judge in one such jurisdiction, Judge Denise Langford Morris, has been utilizing such software to conduct remote hearings since shutdowns first began in March 2020.

Langford Morris has served as a circuit court judge for Oakland County, Michigan, for nearly 30 years, but the pandemic has forced her—and everyone else in her courthouse—to adjust to a different mode of docket and case management. For one thing, Langford Morris needs to allocate more time for each hearing. “It’s very important to bring your patience to Zoom,” Langford Morris advised: “The pace is much slower” than in-person proceedings. Even so, she has been able to manage her busy docket. She credits much of this success to the support she has at her disposal. “I have a clerk that handles the Zoom call. We have a full IT department that’s available at all times to any judge that needs them.”

The convenience of attending court hearings from home or other locations has also lulled some participants into treating the hearings as something less than a formal court proceeding. Langford Morris told of one hearing in which an attorney was apparently unaware that her partially clothed spouse was visible in the background drinking coffee. To avoid such situations, Langford Morris distributes a list of virtual-appearance tips to attorneys and litigants appearing before her. These tips include suggestions about proper conduct and attire and minimizing unnecessary background noise and distractions.

Attorneys participating in virtual hearings should heed well the instructions of court personnel and have a backup method for contacting the court in the event that something goes wrong during the video hearing. Langford Morris recommends that litigants and attorneys appearing before her have the contact information for the clerk at hand in the event that they lose their connection to the remote hearing. Many of the software solutions used for remote hearings also provide dial-in phone numbers to permit an audio connection to the hearing even when internet connections fail. Writing down those numbers and keeping them handy whenever attending a remote hearing will prevent a worst-case scenario—being disconnected from an important hearing with no way to reconnect quickly.

The Limits of Technology

But technology cannot connect those without access to it. Incarceration exposes one facet of this problem. The pandemic has resulted in greater restrictions on contact with incarcerated individuals. For example, the local jail in Chorny’s jurisdiction has altogether prohibited in-person visitation to reduce the spread of COVID-19. “Clients in custody are freaking out,” Chorny said, “because the pandemic has amplified everything. They’re more disconnected from the outside world.”

Restrictions like these have elevated the importance of other forms of communication. To mitigate the disconnect that his clients feel, Chorny configured his office telephone to forward jailhouse calls to his cell phone, and he encourages his incarcerated clients to reach out to him regularly. The jail also has video-visitation facilities: although access to these facilities is limited, Chorny takes advantage of them at every opportunity to get some face time with his clients. Use of these facilities, as with any jail or prison facility, must come with a major caveat: the video-visitation setup may offer little to no privacy, meaning that the communications may not be confidential or privileged.

Moreover, many jails around the country lack the facilities to permit video visitation. But the lack of video facilities does not mean that attorneys should neglect their incarcerated clients. Most jails still permit phone calls and letters, and others provide access to a limited form of email. Whatever tools are available, attorneys should stay in regular contact and attempt to connect with their incarcerated clients on a human level. “Check in to make sure they’re washing hands and getting soap and masks from the jail,” advised Chorny. Simple touches like that, he said, can make all the difference.

Dealing with the Backlog of Trials

COVID-19 resulted in a nearly universal moratorium on jury trials. In many jurisdictions, such a moratorium—even if only temporary—created a large backlog of cases. The challenge that many courts, attorneys, and litigants now face is how to address this backlog. As the Sixth Amendment makes clear, indefinite delay is not an acceptable solution. But the ease with which COVID-19 spreads makes any effort to conduct jury trials either dangerous or expensive and slow.

Even as these circumstances place tremendous pressure on the criminal justice system, they also create opportunities in plea negotiations. For defendants not presently in custody, the delay can inure to their benefit as there is little the prosecution can do to bring the case to a head. A prosecutor may have difficulty using the threat of trial to convince a defendant to plead guilty where the court cannot accommodate a trial. The effort required to marshal the moving parts in any complex prosecution also may disincentivize prosecutors from wanting to proceed to trial before COVID-19-related restrictions are lifted. Meanwhile, the number of cases that prosecutors need to handle continues to grow as a natural consequence of the passage of time. Savvy defense attorneys may use this practical reality to obtain more favorable plea concessions.

The defense bar does not have a monopoly on obtaining favorable plea concessions. Some incarcerated defendants, facing the prospect of a long wait before a trial can resolve their cases, may find previously unacceptable plea offers increasingly attractive as the weeks and months go by.

Some jurisdictions have made efforts to permit jury trials under strict safety guidelines. For example, the circuit court in Oakland County, Michigan, has established detailed protocols for socially distanced jury trials in courthouses not designed for social distancing. Under these protocols, three courtrooms are needed for sufficient space to hold the jury venire for a single jury. Once selected, jurors sit in the gallery of the courtroom, and witnesses testify from the jury box. Because they cannot sit next to their attorneys during the trial, defendants are given devices to send messages to and receive messages from their attorneys. Papers cannot be touched by more than one person, so shallow boxes are set aside to allow the court’s staff and litigants to hold and move papers and show them to others. Wherever possible, exhibits are electronic. The proceedings are broadcast to another courtroom, where observers may follow along. Masks are mandated.

Some courts in California have recommenced jury trials. Defense attorney Eric Chase conducted one such jury trial in a criminal case. His advice to attorneys facing a COVID-19-era jury trial? “Make sure the rules are clear before you get started.” To emphasize the point, Chase used face masks as an example. The court may require face masks for everyone in the courtroom. Ask the judge to instruct the jury venire about the rule. As the attorney, do not then explain to the jury why there is a rule about mask wearing—instead say, “That’s just the rule; the court said it.” You never know “if a juror will have hostile feelings about mask wearing,” Chase explained, and you do not want potential jurors to transfer those hostile feelings to you or your client. If the court permits witnesses to remove face masks when they testify, “address that first thing in voir dire.” Removing masks may make some potential jurors feel uncomfortable, so it is better to air out those concerns before they have a chance to fester. Having that dialogue about the potential jurors’ concerns can set them more at ease, and it may give the court an opportunity to address those concerns without derailing the trial.

Appellate Business as Usual

One area of criminal litigation where COVID-19 has had a more muted impact is appeals. Unlike much of trial court practice, appellate practice occurs principally through the exchange of briefs, with the occasional oral argument. Unlike evidentiary hearings, oral argument occurs in a manner better suited to videoconferences. There is no need to make contemporaneous objections or introduce exhibits during the argument. Instead, oral argument is at its core a dialogue between judges and attorneys. Videoconferencing software suits such dialogue relatively well. Thus, coupled with many jurisdictions’ embrace of electronic filing, appellate litigation has been able to proceed apace.

Torres, for one, has not seen his appellate workload decrease due to COVID-19, filing over a dozen principal briefs over the course of the pandemic. He noted, however, that the appellate work may slow down in the coming months due to the jury trial moratoriums.

Alone with Myself

The challenges that COVID-19 brings are not limited to the courthouse. Remote work—particularly for criminal litigators accustomed to the pace and liveliness of trial court work—can itself be a huge source of stress. It is important to do everything possible to maintain a healthy work-life balance, particularly because work and life now share the same walls.

Torres agrees: even though lawyers “need to be able to close the door and get work done,” it is also important to find a proper balance between work and life. To maintain that balance, Chorny sets specific work hours, hours outside of which he does not work. Although setting such hours might make it feel like the work will pile up, “it’s worse to neglect your personal life.” Jacob Evans, an attorney with the Kern County Public Defender in California, suggests setting aside a designated work space at home: “I don’t want to do work in any place but that office. When I want to turn it off, I can leave the room.”

In this age of COVID-19, proper introspection can be the key to being happy and productive. Different people react to remote work differently. Some people have thrived at home, finding more time for hobbies or enhancing their skills. Others have struggled with depression brought on by the seemingly interminable isolation. Evans recommends that attorneys “be aware how they themselves are responding” to the new normal and adjust accordingly. If the work starts overwhelming your day, “have the self-respect and courage to get to it the next day.” Citing advice that he received from a mentor when he first started practicing, Evans’s mantra is simple: “You are your own first client.” Torres shares that sentiment: “You’re not any less of a lawyer if you realize you’re pushing yourself past what you can take mentally.”

As difficult as dealing with the pandemic has been, Torres sees a silver lining. “Even though we’re all dealing with a lot of obstacles, there’s a greater appreciation of how resilient we are.” If nothing else, the pandemic has revealed our resiliency. “That’s something to be hopeful about.”

Jin-Ho King is a founding member of the litigation law firm Milligan Rona Duran & King LLC, based in Boston, Massachusetts.


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