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Opinion >  Column

Shawn Vestal: Coronavirus and the courts mean delays, distancing and Zoom, of course

Superior Court Judge Annette Plese hears lawyer arguments in a family law court case using Zoom on May 14 at the Spokane County Courthouse. The county's Zoom accounts for Superior Court are just getting up and running, and when everything starts back up, the backlogged courts will be operating much more slowly than before, due to social distancing requirements. “If I want to sleep at night I try not to think about how we’re going to catch up,” said Superior Court Administrator Ashley Callan. (Colin Mulvany / The Spokesman-Review)
Superior Court Judge Annette Plese hears lawyer arguments in a family law court case using Zoom on May 14 at the Spokane County Courthouse. The county's Zoom accounts for Superior Court are just getting up and running, and when everything starts back up, the backlogged courts will be operating much more slowly than before, due to social distancing requirements. “If I want to sleep at night I try not to think about how we’re going to catch up,” said Superior Court Administrator Ashley Callan. (Colin Mulvany / The Spokesman-Review)

In some ways, the hearing proceeded as any other might.

Judge Annette Plese sat at the bench, listened and asked questions. Attorneys made arguments and objected. A handful of people observed from the rear. Plese took the arguments under consideration with a final resolution in the matter – a dispute over child support payments – expected later.

But the hearing last week in Spokane County Superior Court also had all the hallmarks of the coronavirus pandemic. Yellow X’s were taped everywhere, marking the appropriate social distances. A box of plastic gloves sat on one attorney’s table. A bottle of hand sanitizer perched on a railing. On the wall hung a large TV, where one of the attorneys had Zoomed in for the hearing.

“Can you hear me?” the Zooming attorney, Andrea Poplawski, asked – the “open sesame” of video-call life.

It was just one instance of how the courts are trying to fit an in-person process into a no-contact world. The system that handles crime and punishment, civil disputes, divorces and family law, child abuse and neglect, and myriad other matters that are vital to the community is trying to balance justice with safety in unprecedented ways – and looking ahead toward a future that is highly uncertain.

Jury trials are suspended. Most criminal cases are on hold. Some civil and family matters are continuing, but the courts are relying on remote hearings whenever possible. Superior Court, like others statewide, is establishing new video-calling accounts and safeguards needed to help Lady Justice learn to Zoom.

“It’s really been chaotic,” said Ashley Callan, administrator of Spokane County Superior Court. “The minute we have a plan in place, the plans change.”

The courts are incredibly complex systems to reorganize around the current public-health protocols. Several parties may be involved in every matter, from attorneys, plaintiffs and defendants, judges and court staff, to the public. In addition, many of our key principles of justice require – or are at least based on – in-person, face-to-face encounters, whether it’s the gathering of a jury or the right to confront your accuser in court.

Since the state of emergency was declared in February, the courts have been altering their operations based on a series of orders from the state Supreme Court. The current order prohibits jury trials until July 6 and sets out other guidelines.

When jury trials resume, there will be a big backlog of cases, though it’s not clear yet how big. On top of that, Callan expects social distancing requirements will add not only space, but time, to the court’s operations, making it slower to operate.

“If I want to sleep at night, I try not to think about how we’re going to catch up,” she said.

As with so much, the immediate crisis will not just end with a snap return to business as usual. It’s going to evolve in ways that are still unseen and that will depend on what happens next with the virus, and the social and political response to it.

“I don’t believe anyone’s feeling there’s going to be a light switch turned on and things will go back to normal, whether it’s … next month or three or six months from now,” said Tom Kryzminski, the head of the county public defender’s office.

For Kryzminski, the effects of the shutdown and social distancing on the way his attorneys interact with their clients have been profound.

At the simplest level, they do not meet face to face in the public defender’s office – phone consultations only. For defendants charged with crimes but not detained in jail, almost all of the cases are on hold. Defendants who want to enter a plea and be sentenced are accommodated with hearings, and their cases are resolved. But for any who have pleaded not guilty and are awaiting a trial in jail, the shutdown of jury trials is going straight to the heart of their Sixth Amendment right to a speedy trial, Kryzminski said.

“Our clients who are sitting in custody awaiting trial, they’re presumed innocent, and yet there really is no speedy trial right now,” he said.

He’s also concerned about a widespread shift toward video hearings, because he said not every attorney in his office has the technology for it.

Felony filings coming from prosecutors, which have tended to be high compared to other jurisdictions in normal times and have kept Kryzminski’s attorneys continually at the maximum caseloads, haven’t slacked much, he said.

Deputy Prosecutor Mark Cipolla did not return a message Tuesday seeking an interview about the pandemic’s effects on the courts.

As the pandemic has spread and the stay-home order has evolved, the Washington Supreme Court has issued rulings governing the operations of the courts during the stay-home order. In a video message about the temporary rules, Chief Justice Debra Stephens emphasized that the courts are still working, and that urgent, timely operations – such as hearing requests for protective orders or child abuse cases – are ongoing.

“Protection orders are still being issued, urgent disputes are still being heard, questions in family law cases are still being answered and matters of safety and civil rights are still being addressed,” she said.

A big part of that involves remote ways of operating – phone, video, email. A key factor is ensuring that the operation of the courts is transparent and open to the public, which is a foundational characteristic of our justice system. Like local courts, the Washington Supreme Court and U.S. Supreme Court have held Zoom hearings.

The current order would allow jury trials to resume July 6. What then? It’s not clear, based on the extensions that Gov. Jay Inslee has placed on the stay-home order and the unpredictable trajectory of the coronavirus. But if, say, Spokane County is ready to resume jury trials then, it will be a whole different way of operating, Callan said.

Social distancing requirements will be a hard adjustment for a system in which attorneys and clients typically confer closely, in which jurors sit nearly shoulder to shoulder in the jury box.

Courtrooms vary in size but typically can fit about 50 in the public seating area; that will be about eight with social distancing, Callan said.

Adding in extra space will also result in extra time, Callan said. It will take longer to move people through a docket of hearings that might, in ordinary times, go relatively quickly.

She’s not sure how many cases are backing up, but the system is built to handle six jury trials a week, and we’re now in the 12th week without one.

“Even on July 6, it’s going to be a challenge to ask citizens to come down and be jurors,” she said.

She’ll try to keep doing what she’s been doing: Keep the wheels of justice turning, while keeping an eye on the health and safety of everyone involved.

“The courts just can’t be paused for months and months,” she said.

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