It’s a blessing and a curse, technology. The trick is figuring out which is which, but when there is money to be saved, process to be expedited, it tends to blind us to the downside, or at least make the problems sufficiently palatable that we will pretend they aren’t that bad.
Doug Berman at Sentencing Law & Policy posts about an AP article in the San Francisco Chronicle addressing the use of video court appearance.
George Villanueva, charged with first-degree murder in the death of an NYPD officer, will not leave jail for months of pretrial hearings. Instead, he’ll be beamed into the courtroom via video as lawyers discuss his case in front of the judge.
Villanueva’s case is part of a surge in court appearances done by video in New York and around the country, as cash-strapped communities look for ways to boost efficiency and cut costs. The tools are used in courts large and small, and the savings for some are staggering: $30 million in Pennsylvania so far, $600,000 in Georgia, and $50,000 per year in transportation costs in Ohio….
That’s good money. More to the point, that’s good money that, if it doesn’t have to be spent, can be used elsewhere, or never taken. If the use of video court appearances makes the physical presence of defendants in court unnecessary, then it’s a tech blessing. So is it?
Advocates say the virtual hearing is easier on defendants, who don’t have to get up at 4 a.m. to be shuttled with other criminal suspects to court, only to wait hours standing and handcuffed for an appearance. Judges say their cases are moving faster. And civil liberties groups say the practice raises no red flags.
It’s certainly true that incarcerated defendants hate that they have to get up in the middle of the night to make court appearances. The process is a huge burden. And the rather pathetic reality is that most court appearances in criminal cases are utterly pointless and routine, often to submit a paper, learn that nothing is going to happen and set the matter for its next court date. This can go on for a year. Years, even.
So good thing all around? “Civil liberties groups,” whoever that is, say video court appearances are cool with them. End of story? Not entirely.
Two things immediately jump out. First, while most appearances in court are nothing more than a huge time waster, where nothing happens of any utility and serves to do nothing more than waste half a lawyer’s day and a well-pressed shirt, sometimes a critical moment emerges, unanticipated, whether because of a plea offer, a missing witness, an inadvertent assertion by a prosecutor, who knows. These are the moments a defendant lawyer lives for, jumps on, exploits when the opportunity presents itself. Except, it often requires a private whisper of approval by a client to act. Just a head turned sideways, a hand on an arm exerting unusual pressure, a knowing look in the eyes of a frightened man.
The defendant is one the big screen TV looming over the well? Kiss that moment between lawyer and client good-bye. Would the defendant trade sleeping late for seizing the opportunity to win his case? I suspect he would, but there would be no way to know what day, what appearance, an opportunity will reveal itself. And so it would be lost.
More common to the situation, however, is that incarcerated defendants want to see their lawyer. They are isolated in jail awaiting trial. They hear others talk about their cases, lie through their teeth about how great they’re doing (never recognizing that they are still sitting in jail as they crow about their legal finesse), and grow depressed and fearful that their life isn’t doing nearly as well. They become angry and paranoid, They need contact and information. They need to speak with their lawyer.
Granted, even incarcerated defendants should have a regular and ongoing opportunity to communicate with their lawyer. Face to face meetings, papers handed back and forth, are deserved by defendants in jumpsuits as well as those in the office. But it often doesn’t happen, as time is scarce, jail visits suck up an enormous amount of time (the waiting to get in, and then to have the client brought to the visiting room, can take hours) and there is always other work to be done. And when there is nothing to discuss, as is far more often the case than defendants want to hear, it’s hard to justify a day lost to handholding when there are lives to be saved. Just not that defendant’s life.
Court appearances take up the slack. Defendants get the chance to see that their lawyer is still breathing, knows their name, cares. The defendant needs to know that he’s not forgotten. He needs to know he’s not alone. He needs to look into his lawyer’s eyes and see that there’s something burning in there. Take away these meetings and the defendant is left to wonder in the darkness of his cell whether anyone in the world is watching out for him.
Does this make video court appearances a sufficient problem to raise serious concerns? That’s hard to say, and likely varies from case to case. If the defendant has sufficient access to his lawyer, then the need for a face to face in court is lessened. If the technology allows for private discussion, then perhaps it can compensate somewhat for the inability to get instantaneous feedback when opportunity arises. It’s not the same, but it’s something.
And if the defendant isn’t going to be physically present in court, I can’t help but wonder why the lawyer needs to sit on a bench for an hour to adjourn a case either. While this won’t save the state any money, it could do wonders for the lawyer’s time and wallet.
The point isn’t to reject, knee-jerk, the use of technology for all purposes, but rather to recognize that there are things being lost in the process, and consider the trade-off. There is much to commend video court appearances, but they are not without issues, no matter what red flags civil liberties groups don’t see.
Through acknowledgement that it might fall short of a panacea, maybe the problems can be addressed and accommodated, and just maybe the use of technology can be tweaked so avoid, or at least diminish, the downside of appearing in court by video.
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Back in January of 2010 Bad Lawyer ran the story of Gertrude Shaink Trudeau, a 78 year old lady arraigned via video cattle call in Seminole County, FL. No one noticed her, resulting in a 2 week jailing over the 2009 Thanksgiving holiday for a suspended license.
My lamented and late friend Judge Todia was an excellent small court judge HATED the idea of video court appearances feeling that it violated due process rights.
Having personal experience with federal diesel therapy, I do understand the countervailing argument. Spending hours in shackles on ConAir or a prison bus–being separated for weeks or months in some county lockup, separated from your property and prison health and social support in order to be present in the flesh at a meaningless hearing–is pretty stressful.
Given your experience, which side are you on?
Can this really be debated? There is no substitution for being there from your perspective or your lawyer’s perspective. I suppose there are exceptions, wasn’t it Joseph (….name eludes me) who waived an appearance in Washington, D.C. a couple of years ago at an appellate bond hearing that would have entailed two weeks of diesel therapy from wherever out west?
Not only can this be, but it has to be because right now, per the unnamed “civil liberties groups,” video court appearances” are great for everbody. Speak now or never appear in court again.
I had the exact same visceral reaction to the story as you did. Who is this “civil liberties” chap who claims to speak for the rest of us? The human interaction, especially to those of us who do a large volume business such indigent defense, is priceless. The ability to touch a client’s forearm to let them know they will be ok, to crack a bad joke in holding while waiting to see the judge, and the ability to look them in the eye (or when necessary kick them in the shin) simply isn’t possible in video court.
People who have never actually represented another human being can’t comprehend the importance of seeing a person in the flesh.
Appearance by video here must be specifically consented to by the client, not just the lawyer, and can be revoked for any subsequent appearance. Despite all the pressure court officers usually put on us to be efficient and go with their flow, I’ve never actually had anyone try to push me or a client into a video appearance. I get a chance to talk to the client by private video before and after the appearance, and I’ve seen judges stop appearances in the middle because the defendant wanted to speak to his lawyer. So, in practice, I’ve actually had good experiences with it.
Villanueva’s case is different (besides how they managed to get a murder 1 indictment out of a clearly reckless assault)- Every time his case is on, PBA has been packing the courtroom- when the indictment was filed (a purely ministerial act in a courtroom that will never otherwise bring a defendant out unless he’s taking a plea) he was brought out to the cheers of the dozens of officers in the courtroom. Had any civilian acted that way, they would have been immediately found in contempt. His appearances by video at least do something to calm the hysteria.
This post isn’t about New York City’s practice, Villanueva or any individual’s experience. Think broader issues.
They do this in many immigration courts – I think it’s horrible. Anyone who wouldn’t want their clients to appear before a judge or jury in a jumpsuit and/or shackles should be even less in favor of this. Even the most baby-faced kids can look like dangerous terrorists on the screen.
Even at purely ministerial hearings, if the client has to appear at all, the judge forms opinions based on appearance. I think it is easier to make a better impression in person.
There is a terrific study about video bail proceedings in Cook County, Illinois. The authors examined bail decisions for the 8 years before and after the County moved to video proceedings. (The study was prompted by a lawsuit against the county). Here is what they found:
“The results of the analysis show that average bond amounts rose substantially following the implementation of the CCTP. The change cannot be attributed to general trends or seasonal variations as none were observed. As both the graphs (Figures 1-7) and the statistical models clearly reveal, the substantial increase in average bond level immediately followed the implementation of the CCTP on June 1, 1999. The average bond amount for the offenses that shifted to televised hearings increased by an average of 51% across all of the CCTP cases. In separate analyses, increases of between 54% and 90% occurred for six major felonies subjected to the CCTP. In contrast, the average bond levels for the combined serious sexual assault and homicide cases, which continued to have live hearings, changed an insignificant 13% (Figure 8) and when analyzed alone, the homicide cases showed almost no change at all in average bond level following the implementation of the CCTP. These results demonstrate that the change in bail procedures not only led to a large and abrupt increase in the average bond amount for felony cases handled by televised bail hearings after June 1, 1999, but also produced a steady rise in bond levels over time.”
Shari Seidman Diamond, Locke E. Bowman, et al., “Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail Decisions,” 100 J. Crim. Law & Criminology 867, 895-96 (2010).
Cook County apparently returned to live bail hearings in December 2008 and made other changes in the hearing process.
The article discusses the reasons why videoconferencing impairs the fairness and integrity of criminal proceedings.
Wow. Chuck, were the finding relevant to other proceedings, motions for example, short of trial? I would assume they must be (which is preferable to reading a law rev article).
The study examined only the outcomes of bail proceedings (over 600,00 of them), probably because the result of the hearings (bail amount) is quantifiable. But the article talks about the pressure to video other pretrial proceedings. I think the article provides evidence to be really cautious about expanding videotaping to other proceedings, given how differently decisionmakers view people who appear by video (instead of in person) and given all the other problems, such as counsel’s inability to communicate with the accused in person.
Thanks, Chuck. Always good to have one’s anecdotal beliefs back up by empirical evidence.
When do civil liberty groups attend video court? The sheriff is the one who likes video court.
I have only attended video court a few times and there were no attorneys present. Other than myself the only persons present were the judge, a clerk and the assistant jail supervisor. At the jail end there were inmates and jail deputies.
The judge was handing out fines at an average rate of $250 to $500 per minute. Assembly line justice with no inspector.
OTOH if a football player is arrested the courtroom is packed. Maybe the civil liberties folks were among the throng.