|
|
Wednesday, June 2, 2021
By Michael Nichols
Categories: Michael J. Nichols
The news on the State Court Administrative Office (SCAO) website makes it pretty clear: virtual court a/k/a zoom court is here to stay in some iteration even as we ooze away from COVID-19 prevention protocols. The SCAO website promotes that, as of May 14th, 2021, hundreds of thousands of zoom sessions and “You Tube” viewings have occurred for Michigan courts. Judge Tom Boyd (ret) the SCAO administrator told writer Paul Egan of the Free Press on June 1, 2021, that SCAO intends to issue directives to Michigan judges to continue to use virtual court appearances whenever possible, but that of course excludes off the bat a criminal jury trial. The reason? Every person accused of a crime has the right to confront the accusers. This is a hard staple of the 6th Amendment of the Constitution. It should not erode, this right and we cannot let it erode. Our founders worked too long and too hard, too many people bled and sacrificed to ensure that no one is convicted by a letter, such as was the case of Sir Walter Raleigh. This was the classic example from ancient England from which our Constitutional right to confront the accuser so that the fact-finder can assess that person’s credibility and subject that accuser to the crucible of cross examination: the most effective engine and ferreting out the truth.
Tom Boyd has always been a man on a mission to make things better. He often has imparted to me over the years when discussing reforms as issues in our judicial system would arise “perfect is the enemy of the good.” In other words, we try to make things better but we will paralyze if we worry about making them perfect before we make them better. Judge Boyd was quoted in the FREEP article as lauding the enhanced access to courts by virtue of the ease of appearance by zoom. I have no doubt that many more people, who otherwise would have struggled to “make it to court” or afford counsel to help them make it to court with the representation of their choice have been able to access justice or access better justice thanks to virtual court appearances by zoom technology and its ilk. I know that I reduced retainer fees for travel when I figured travel was not necessary as I assessed a case. Then again, I have a case in which I represent a seriously-injured Plaintiff from an accident up north and some Defendants whose conduct was atrocious and they are just not being truthful about it at all – that is a civil case and a civil case that I damn straight want to be in the same courtroom with the jury who needs to FEEL the evidence: not just watch it in the de-sensitive TV-like 2d medium of zoom.
Here is what I think we should be careful of though, and my concerns that I express to all of you when we chat about “zoom-court” are 2-fold: 1) an over-reliance on this technology. I say this because a preliminary examination by zoom is inferior to one in-person. The same goes for any-type of evidentiary hearing or even a civil trial. The judge or hearing officer just cannot rely on the witness not getting help; fudging a technology problem to avoid a straight answer to a question, or some other type of shenanigans when the witness is not there in the courtroom. Zoom is great for more of the perfunctory type of hearings such as a pretrial or even an arraignment. I prefer having you, the accused or client there with the judge and with me if we are going to do any sort of proceeding in which sincerity, veracity, credibility or explaining an exhibit is an issue. In addition, often I will see the prosecutor in the courtroom with the judge while my client and I appear virtually. I do not like that. If the representative of the government looking to convict you is with the judge, we probably should be, too. Why does the prosecutor get to be there but not the accused and his lawyer? Who controls that? This probably is not the same concern I have for again, a perfunctory matter like a pretrial
In addition, virtual court is controlled completely by the court staff. What I mean by that is access. If we cannot get into the courtroom or even the courthouse, how do we get an emergency pleading before a judge? Who decides that and why is it fair to literally lock the courthouse. If you try to virtually enter court, you might be completely ignored until someone or unless someone decides to communicate with you. So let us watch out for these issues as we continue to walk down this path of returning from COVID-19 quarantines with hopefully, a justice system that is better than before.