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Michigan May Continue Online Court Sessions Amid Doubts

Before the COVID-19 pandemic hit, the Michigan Supreme Court had licensed Zoom for nearly 200 courthouses across the state to conduct remote hearings, and the tech has come in handy as the virus spread.

by Orlandar Brand-Williams, The Detroit News / August 26, 2020

(TNS) — Before the COVID-19 pandemic hit, the Michigan Supreme Court had licensed Zoom for nearly 200 courthouses across the state to conduct remote hearings.

The internet video conferencing technology came in handy when the spread of the virus into Michigan in March forced judges to suddenly shut down courthouses and shift proceedings online.

While the new virtual world has forced the postponement of some trials and sentencings, conducting some legal business online has worked so well that the state’s highest court is studying ways for lower courts to continue using Zoom for routine hearings in civil and misdemeanor cases even after the virus is subdued.

The technology eases scheduling conflicts for attorneys and other participants and allows hearings to be conducted faster, helping reduce case backlogs, Chief Justice Bridget Mary McCormack said.

"There are litigants who don't have to leave their job to be able to appear for a court hearing," she said.

"We moved to this format because we had to keep people safe in the middle of a pandemic," the chief justice said. "We moved quickly because we didn't have much of a a choice, and now we're seeing all these benefits that we'll be able to take with us when we're past this pandemic."

''There is no doubt" that Zoom hearings will become permanent in some cases, McCormack said.

"It's not appropriate for every single hearing or every type of hearing, but it will absolutely be part of what we do from now on," she said. "We've undergone more change in the last four months than in the last two decades. ... It wasn't the disruption that we wanted, but I think was the disruption we needed."

Critics contend the online technology is an imperfect substitute for face-to-face proceedings, where defendants can face their accusers while jurors and lawyers can get a better feel for the character of witnesses and presentation of evidence in person.

"When someone is testifying, you want to be able to observe their demeanor — that gives you a good clue whether they are telling the truth," said Chief Judge John Chmura of Warren's 37th District Court.

More than 750,000 hours of hearings have been conducted using the technology since the end of March. State courts officials said 1,000 judges and other court officers are licensed to conduct proceedings via Zoom at a cost of $200,000 to the state.

The state courts licensed Zoom more than a year ago for remote hearings in an effort to save money and offer alternative procedures for lesser-offense cases.

The Michigan Supreme Court has put together a Virtual Courtroom Directory that allows users to click on a map and access live proceedings that are streamed on YouTube. To date, the courthouses have about 23,000 subscribers statewide and generate hundreds of thousands of views, according to state court officials.

Virtual "breakout" rooms, where parties can break off from Zoom into private sessions, have replaced physical courthouse meeting rooms, where attorneys and clients are able to confer. Jury trials are now being held, in some cases, in school auditoriums or on Zoom to make sure there is safe distancing for jurors.

Judges debate benefits

Most of Michigan's courts have begun increasing operations in the past few months. They operate under the Supreme Court's four-phase program for returning to full operations with a variety of restrictions depending on the severity of cases in a region and other factors.

No courts have moved into Phase Four, which is operating with no COVID-19 restrictions.

Chief Judge William McConico of Detroit's 36th District Court said his court's experience with Zoom proceedings has been mostly positive, especially for residents who normally would have to appear in person.

"I think people are embracing it because you don't have to find a babysitter ... you don't have to have someone to watch your elderly parent ... you don't have to worry about leaving kids (at home) or having to get back to pick someone up at school," McConico said. "You can do it from your kitchen table. You can do it from your family room. People are getting comfortable with this."

But not everyone is completely comfortable with the sudden shift to virtual hearings.

The use of online video technology "really changes the dynamic of the whole case...," Warren's Chmura said. "... It impacts the way we hear cases greatly."

He said "it's more bad than good," but concedes the use of virtual proceedings has allowed the court to move quickly on cases.

"Using Zoom is better than having a defendant sit in jail and not have a case heard, but it's not ideal," Chmura said. "You're better off adjudicating cases when people are in court and you can see them face to face."

It's easier to get defendants to pay their fines and court costs if they are in the courtroom, he added.

Defendant delays

For some defendants, the move to remote hearings has resulted in lengthy delays.

Shawn Patrick Smith, a Birmingham-based defense attorney, represents a murder defendant whose trial has been pushed back five months. Trials in Wayne County Circuit Court have been delayed since mid-March due to the highly contagious COVID-19.

"(The delay) has got to be the most painful thing (a defendant) has ever experienced," Smith said, though he added he would rather wait than rush into a trial that could be affected by a court system impeded by the COVID-19 pandemic and where mistakes are possible.

"We have the best (court) system," said Smith. "It's almost perfect. The imperfection is this pandemic, (and) what it has thrown us is not good. It's not good for justice."

On the positive side, Smith said, Zoom technology allows attorneys a lot of flexibility for some defense attorneys, allowing them to be able to participate the same day in court hearings that are miles apart.

Smith said he was able to handle a felony case in the Upper Peninsula. He said normally he would have to fly to Iron Mountain, facing the threat of of being delayed by fog or being redirected to Green Bay sometimes for a brief hearing that would require him to block out two days for the court appearance.

Wayne County Prosecutor Kym Worthy said the changes forced on the court system are "frightfully enormous and must be prepared for fiscally, mentally and physically.”

The problems Worthy's office cites include a backlog of cases at the larger courthouses and "multiple" adjournments where "lawyers on both sides may wait on Zoom for hours for their cases to be called, only to be informed it’s been adjourned."

Despite the "difficult and unprecedented times," Worthy said, the Wayne County Prosecutor's office continues to alert the courts about "the issues that victims, witnesses and my assistant prosecutors have experienced. We will continue to gather information to present to (judges and court officials)."

"While the pandemic is ongoing we will have to do all we can to ensure the safety of people, and to make sure the fair administration of justice takes place in our courtrooms during the many challenges we face," she added. "But we must also be mindful that because of some of the necessary delays we must keep everyone safe."

Trial challenges

Jury trials pose a greater challenge on Zoom than other proceedings, McCormack said. Some courts, such as one in Oceana County and another in Traverse City, have had to conduct jury selection in a high school auditorium to ensure safe distancing measures.

Judge Thomas Power of the 13th Circuit Court in Traverse City said he and fellow Judge Kevin Elsenheimer weren't about to let area citizens "not have their day in court" so they began working on plans in April to ensure the proceedings continued.

When the Supreme Court lifted the court trial ban on June 22, Power and Elsenheimer presided over jury selection in the most unlikely place: the auditorium of Traverse City Central High School. A day later on June 23, the 50 prospective jurors were spread more than 6 feet apart for a morning session of jury selection.

When a jury was picked, jurors headed over to the courthouse a mile away to hear a civil case involving an automobile accident, but they were spread around the courtroom instead of being seated in a traditional jury box. The public was not allowed to attend but could watch the trial on YouTube.

Jurors wore masks, and not one complained about having to do so, Power said. The changes were small inconveniences to protect the guaranteed right to a fair trial, he said.

"It's a small price to pay, otherwise people can't get their day in court, and we can't have that," he said.

Wayne County moves

In Wayne County Circuit Court, Chief Judge Timothy Kenny and his staff are preparing to resume jury trials in mid-September after a six-month hiatus. They began last week to send summons to prospective jurors.

Safety protocols will be in place, court officials said. Potential jurors will get a bag containing items such as masks, gloves, hand sanitizer and disinfectant wipes.

Trials will be limited to two courtrooms, which won't be open to the public. Proceedings will be broadcast on YouTube.

"Court staff, judges and the clerk's office have done a remarkable job in adapting to the Zoom technology and working remotely and conducting as much business as they possibly can," Kenny said.

"When the pandemic passes, there are any number of things that we have learned by the use of technology that we will carry forward as permanent parts of how we do business," he said.

©2020 The Detroit News. Distributed by Tribune Content Agency, LLC.

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