The virus cut off access to courts but opened the door to a virtual future

Spatial constraints related to COVID-19 have led judges across the United States to exclude or limit public and media participation in trials.

While Kelly’s trial, which ended last month with her conviction, a New York federal judge banned the press and the public from the courtroom because jurors were seated six feet apart in the gallery normally used by observers. Viewers could watch a live video stream in a busy courtroom, but it offered no view of the jury and only limited footage of the accused, witnesses and exhibits. At one point, prosecutors played a recording that jurors listened to through headphones, with no sound available to the press and the public.

The judge rejected a request from media groups, including the Associated Press, to allow pool reporters into the courtroom for much of the trial, letting in six reporters only when the verdict was announced.

A similar scenario occurred last week in Ohio, where a federal judge cited the pandemic while keeping the public away the courtroom for the trial of Yanjun Xu, a Chinese official accused of trying to steal trade secrets from US aviation and aerospace companies. There was no public access to the jury selection. Audio from the trial was shown to media in a conference room.

Overflow rooms are better than nothing, but often leave observers unable to see the full context of what is going on, such as the reaction of jurors as evidence is presented, New York lawyer Rachel Strom said, who represented the media in the R. Kelly case.

“We don’t know what we missed by not having anyone in the courtroom,” Strom said.

After the PA and other media filed lawsuits, a judge in Georgia only awarded two media pool seats in the courtroom just before jury selection began. in the trial of three white men accused of pursuing and killing Arbery. Graphic cellphone video of the shot dead 25-year-old black man sparked nationwide outrage last year, and the trial is closely watched as a referendum on how the legal system treats victims black. The judge has since allowed a third reporter and a photographer to enter the courtroom.

In another high-profile case, the press and the public were first allowed to listen to court proceedings remotely as pop star Britney Spears sought to end her father’s tutelage over her finances. But the Los Angeles County Superior Court struck down remote access after someone taped a hearing, and the court refused to reinstate it for a hearing in September when Spears was released of his father’s negligence. Instead, the court allowed more people into the courtroom.

USA Today recently asked the California Supreme Court order the restoration of remote audio for the public and the media.

“No one should have to risk their health to exercise their constitutional right of access by going to court and appearing in person,” USA Today said in its court record. He also suggested that the remote audio program should continue “even when the pandemic ends”.

The California request highlights how the pandemic has altered expectations about what is considered dirty roulette public access.

“As the courts reopen, they should seriously consider keeping a certain amount of remote access available to the public,” said Lin Weeks, an attorney at the Journalists’ Committee for Freedom of the Press.

Many courts now routinely use video conferencing in civil proceedings, for bail proceedings in criminal cases, and for family law disputes such as child custody and divorce cases. Some also use video conferencing to select jurors or to conduct full jury trials.

Judicial authorities say virtual proceedings have saved lawyers, jurors, litigants and defendants time and money, who no longer have to go to a courthouse, take time off work or go to court. organize childcare. Courts have also seen fewer no-shows among those called to virtual jury pools and, as a result, a greater diversity of juries.

“It’s been a lifeline as we tried to keep the justice system moving during the pandemic, but it’s also been transformational,” said Sean O’Donnell, Superior Court Judge for King County, Washington. , home of Seattle.

King County judges have conducted about 700 online trials, including about 50 with jurors. In a trial that O’Donnell presided over last week, the judge, lawyers, witnesses and jurors appeared on a 20-box Zoom screen that the public could see on YouTube. Two jurors were seated in clothes closets. One of them participated from his vehicle. Another was reprimanded by O’Donnell for removing his cat from view of the camera. A witness testified from Oregon, a few hundred kilometers away.

Despite these quirks, the virtual trial proceeded much like a regular trial, with lawyers taking turns interviewing witnesses and evidence documents displayed on the screen for all to see. There were even periodic breaks during which participants stood up and stretched.

The conduct of the trial also freed up space at the courthouse. To accommodate social distancing, in-person trials use up to three separate courtrooms – one for the actual trial, a second for the public to view from a distance, and a third for the jury to use during. breaks and deliberations, O’Donnell said. .

Across the Hawaiian island chain, the ability to virtually observe the courts has increased public access during the pandemic.

John Burnett, reporter for the Hawaii Tribune-Herald, was unable to cover state Supreme Court or United States district court proceedings before the pandemic because it required a plane ride 50 minutes from Hawaii, also known as the Big Island, where its based in Honolulu on the island of Oahu. Now he regularly listens to federal court cases by phone and watches State Supreme Court arguments on YouTube.

“I think they should become permanent things because let’s face it, we’re talking about public information here,” Burnett said. “If we can’t put our boots on the real pitch, at least if we can have a virtual pitch – it’s as good a substitute as we could hope for.”


David A. Lieb reported from Jefferson City, Missouri. Associated Press editors Russ Bynum in Brunswick, Georgia, Tom Hays in New York, and Jennifer Kelleher in Honolulu contributed to this report.

David A. Lieb, The Associated Press

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