While new Superior Court jury trials and grand jury proceedings remain suspended at least through the end of May, other court activity has moved to the virtual world, with video conferences and phone calls replacing in-person sessions to keep pending cases moving along.
The process has its limits, though.
The attorney for a Morris County teacher and coach accused of sexually assaulting two students said last week that a decision on whether to accept a plea deal was hampered by the fact that some evidence, including explicit photos of one alleged victim, hasn’t been turned over to the defense because of child pornography concerns. This evidence would normally be viewed at the courthouse, but these meetings have been suspended until at least June.
Attorneys interviewed by NJ Advance Media about the virtual court program generally see this temporary solution as a success, saying officials are doing the best they can in unprecedented times. Instead of concerns with court operations, lawyers are more worried about access to their jailed clients.
A few described difficulty communicating with defendants, while others expressed fears that some in jail pre-trial are unnecessarily exposed to COVID-19 when they could be safely released to home confinement. All agree keeping courts operating is essential.
“It’s been challenging for everybody,” said Robert Bianchi, a lawyer and former Morris County prosecutor. “We don’t want the courts to come to a complete standstill and we want to be able to conduct as much business as we can. That only makes common sense because when the courts reopen again, we’re just going to be flooded with cases.”
Court officials say 495 trials have been postponed because of the pandemic.
Virtual court open for business
New Jersey’s courts have conducted about 23,000 virtual court events since March 16 involving more than 189,000 participants. That includes hundreds of civil and criminal bench trials, where judges rather than juries render a verdict.
In criminal court, detained defendants appear from jail, while judges and attorneys connect from homes or offices. As the weeks pass, more proceedings resume via video or phone, including civil arbitration sessions, matrimonial mediation and municipal court hearings.
A pilot program to conduct virtual grand juries — with jurors convening from home via video conference — was announced last week for Mercer and Bergen counties.
“We wanted to make certain that we could handle as much as we possibly could,” said Judge Glenn A. Grant, acting administrative director of New Jersey courts. “Over the weeks that the courthouses have been closed, we have been adding on additional court events.”
Keeping courts running has been a balance between addressing public health concerns while ensuring the system still functions, Grant said.
“New Jersey judiciary has tried to make that fine balance, to say we are removing as many people as possible — 95% of our staff are working from home — but we are also keeping the doors of the virtual courthouse open.”
The system even allows crime victims to participate as they normally would in a courtroom.
“The judiciary is trying to replicate those in-person sessions as much as possible in the virtual environment,” Grant said.
Easier in some ways, harder in others
For many, their traditional work routines have been upended by the pandemic. Dining room tables have become work spaces and the commute may be a flight of stairs rather than a fight through traffic gridlock. As with most occupations, the life of an attorney is a mixed bag.
“The court piece, by and large, is working well,” said Jennifer Sellitti, attorney and spokeswoman for the state Office of the Public Defender. “It’s almost in some ways easier because you’re getting appointment times for your cases.”
Meetings with clients have been a challenge, she said.
With access to jails restricted, in-person meetings aren’t happening. Some jails, such as the facility in Bergen County, have been helpful in arranging video conferences with clients, Sellitti said, while others are providing only phone communications. Contact with clients in state prisons has been primarily by phone.
The lack of face-to-face communications, especially when an attorney hasn’t had a chance to establish a rapport with the client, is tough, Sellitti said.
“That creates real problems, particularly if you have to talk to your client about a plea or going to trial," Sellitti said. "Those conversations are much more difficult to have in this environment.”
An opportunity to work smarter
Bianchi sees the adoption of virtual hearings as a chance to make some longterm changes to improve efficiency in the courts. Driving hours to wait around in a courtroom for a hearing that may last seconds isn’t the best use of anyone’s time, he said.
Status conferences and arraignments — hearings that don’t involve testimony — are the kinds of cases that could be handled virtually on a regular basis, according to Bianchi.
“I’ve said for a long time, long before COVID, that I think a lot of the appearances that we make in court … are really a waste. I’m not saying they’re not meaningful," Bianchi said. "Just before they closed the courts, I was in one of those scenarios wondering why we were there in the first place just to say the words ‘Not guilty’ and to turn around and to walk back out again.”
Packing a courtroom for such hearings doesn’t just create a health risk, Bianchi said, but is an unwise use of resources.
“Reserve those courtrooms for those instances in which a video conference just will not work,” he said. “To me, if there’s a plea that’s not complicated or a sentence that may not require somebody going to the county jail or state prison, there could be instances in which I want a live courtroom, but I don’t necessarily see the need for it.”
Not everything can work virtually, Bianchi said, noting it’s hard to cross-examine a witness or present them with documents when you can’t meet face to face. “Plus, just that whole vibe of being in the courtroom and being able to gauge the credibility of the witness, which is important for a judge,” he said.
Justice by phone
While Superior Court has its challenges, municipal court has been easier, according to defense attorney Peter Alfinito.
“When it comes to municipal court, I love it,” he said. “These are being done with a phone call.”
Alfinito is able to talk with prosecutors, judges and his clients and get cases resolved in a matter of days in some instances.
He described a recent case in Bergen County that would have normally required four hours of driving. Instead, the entire matter was adjudicated with 20 minutes of phone calls.
His clients are happy, too. Since courts operate on weekdays, they would normally have to skip work to appear.
“They don’t want to take a day off from work,” Alfinito said. “They don’t want to have to go to court.”
Some of these changes could last beyond the pandemic.
“I think we’re going to see longterm changes when it comes to municipal court, but I think it’s going to have to go back to the way it was in Superior Court,” he said, pointing out that it’s one thing to resolve a speeding ticket over the phone and quite another when a criminal defendant faces prison time.
While some of the technology-driven solutions have been popular, an idea drawing criticism is remote grand juries.
“Which is something both the prosecutors’ organization and the defense bar were opposed to,” Sellitti said, “but it looks like it’s going to be happening anyway.”
It’s harder to evaluate witness credibility over video, she said, since it’s more difficult to interpret visual cues, such as whether the person is making eye contact.
“Not to mention, the prosecutors and jurors have no idea whether there is someone behind the camera coaching the witness,” she said. “If the witness is reading from prepared notes, or if the witness is otherwise referring to something they would not be able to have with them in court.”
A prosecutor would have a harder time presenting jurors with physical evidence and jurors would find communication difficult when it comes to deliberations, Sellitti said.
Restarting the process in some form is key for defendants left in legal limbo.
While state law requires that a defendant be indicted within 90 days of arrest and wait no longer than 180 days for a trial, the last few months, when grand juries haven’t met and new trials haven’t been held, won’t count toward those figures, since the circumstances of the delay aren’t the fault of the prosecution or defense, Grant said.
‘The real failure’
Prosecutors and defense attorneys are working together to make the virtual court process work, Sellitti said.
“I do believe that everybody in the system truly has our clients’ constitutional rights and interests at heart,” she said. “The defense bar and the prosecutors have been much more of a unanimous voice when it comes to things like doing hearings and thinking through the options of doing certain things in cases. That has been a success.”
The situation for detainees is another matter.
“The real failure has been the inability to get people who are at risk from COVID-19 out of prison," Sellitti said. "What I worry about is with the number of people we have in prison and people we have in our county jails, that by sitting there, we’re exposing them to something that’s going to kill them.”
About 700 inmates serving sentences of less than a year in county jails have been released over pandemic concerns and New Jersey is temporarily releasing some vulnerable state inmates, though the state has been criticized for slow action on this front as prison deaths from COVID-19 have soared. New Jersey has the nation’s highest rate of state prison inmate deaths from the virus.
There were 4,140 pre-trial defendants in county jails statewide as of last week
“I think if we could err on the side of releasing some more folks to alleviate the burden on the county jails and the prisons, and allow people to be able to work on their cases with their attorneys more collaboratively, because if they are out they would have more options and opportunities to do that, then that would be the thing that would help the system more,” said Sellitti.
What happens next?
Courts face a mighty backlog whenever grand juries reconvene.
This presents a great opportunity for defense lawyers to try and resolve cases pre-indictment by reaching out to prosecutors, Bianchi said.
“Prosecutors have to be very judicious in which cases they are presenting for indictment,” he said. “If you can find an alternative way of disposing of that case pre-indictment or remanding it back to the municipal court, that is what I’m expecting you are going to see because they’re just not going to be able to handle that caseload coming into the grand jury.”
What happens with court operations in June remains an open question. A decision to reopen courthouses will rely on guidance from health professionals, said Grant.
Judiciary officials are meeting on a regular basis to discuss how courts would reopen and the precautions that would be put in place, he said. Beyond those concerns, case backlogs will be the next hurdle.
“I do believe that people will have to prioritize cases and people will have to probably do additional work to deal with the backlog that was generated,” Grant said. “Prosecutors and the court will be working together to see how can we reasonably have people come into our courthouses safety, following the appropriate CDC guidelines, to make certain that we can move some of these cases expeditiously.”
Bianchi remains optimistic about the state of New Jersey’s judicial system.
“There are hiccups and flaws. That’s all stuff that’s going to work itself out,” he said. “The fact of the matter is that we are being resilient and the courts are being resilient and business is occurring.”
©2020 NJ Advance Media Group, Edison, N.J. Distributed by Tribune Content Agency, LLC.
