Courts soon to emerge from coronavirus restrictions, reopening in a new reality
Southern California courthouses whose operations were drastically curtailed in the midst of the coronavirus pandemic are gearing up for a reawakening, but justice will look much different as judges work to balance health concerns and constitutional rights.
Smaller jury pools, remote proceedings, video-streamed hearings and few court visitors will mark the new courthouse reality, as the days of bustling hallways and elevators packed with attorneys, jurors, witnesses, law enforcement officials and victims fade away for the foreseeable future.
In the face of stay-at-home orders, local courts have halted ongoing jury trials, extended deadlines for pending criminal trials, halted progress on most civil cases and largely focused on emergency and time-sensitive hearings. For those hearings, the courts — traditionally resistant to change — have been forced to rely on technology for social distancing.
“What’s happened is the courts have been forced to do something they otherwise would not have done,” said Jeremy Fogel, a former federal judge and current executive director of the Berkeley Judicial Institute. “It’s not as bad as we thought it would be.”
Staggered reopenings
Within each local Superior Court system, the various stakeholders — including judicial officials, prosecutors and public defenders — are busy crafting their plans for reopening.
Some are expected to move faster than others, with the Orange County Superior Court announcing a “soft reopening” for this week, including resuming criminal trials put on pause by the earlier closure. Courthouses in Los Angeles County and the Inland Empire are expected to begin ramping up their operations by mid-June. All are expecting a gradual return of services.
Awaiting them will be a backlog of cases built up during the closures, though prosecutors are hoping to draw down some of that workload by settling criminal cases before they go to trial.
“My direction is this: try to reach out and settle, reach dispositions on everything you possibly can, give the best offer based on the circumstances we are in without doing an injustice and letting someone off too light,” Los Angeles County District Attorney Jackie Lacey said.
For civil cases, nearly all hearings will likely be heard remotely, including family law and probate cases. And those dealing with relatively minor issues such as traffic citations will be urged to go to court websites rather than travel to courthouses.
“If they have the ability to handle their matter remotely, I would encourage them to do that rather than come in,” said Jeff Wertheimer, general counsel for the Orange County Superior Court system. “If everybody in the civil and traffic world feel they need to come in to be heard, it is going to create problems.”
Smaller jury pools
The biggest change will likely be jury service, with jury rooms holding hundreds of prospective jurors and cramped jury boxes in court trials no longer possible.
Jury pools — the group of prospective jurors who are ultimately winnowed down to a seated jury — will be much smaller, officials said. In Orange County, for example, jury pools that previously included as many as 600 people will likely be reduced to 160, Orange County Public Defender Sharon Petrosino said. Additionally, jurors will be spread around the courtroom during trials to maintain social distance rather than all being placed in the jury box.
“I’ve been here 36 years and I can’t imagine how it’s going to be,” Petrosino said.
Masks will be mandatory when entering courthouses. Whether they will be required at all times by actual participants in trials in the courtroom remains to be seen. At least in Riverside Superior Court, that decision will be left up to individual judges.
“With witnesses and lawyers speaking, people are going to want to see their faces,” Riverside Superior Court Presiding Judge John Vineyard said.
Health concerns for jurors
With the coronavirus still a major fear, court officials also are certain to see an increase in citizens requesting excuses from jury service. Judges will have to determine what constitutes a valid excuse, particularly when it comes to health concerns.
“There will be hardships, there will be some jurors who say, ‘I’m not coming, because I’m afraid of getting the virus,’ ” Lacey said. “They have to set up some sort of mechanism to screen jurors before they get to the courthouse.”
Orange County District Attorney Todd Spitzer said older people and those facing economic hardships likely will be filtered off juries.
“I’m very concerned we will not have a cross-section of the public,” Spitzer said. “Older people will not come in, they will probably be excused. I want more seasoned jurors. When you have a seasoned citizen who knows a bogus, BS defense when they hear it, I’m very worried we’re going to lose that.”
Spitzer also noted that court officials across the state are concerned about preserving the rights of defendants to confront their accusers, which they could lose if witnesses testify via video. With all the restrictions, Spitzer said, complicated trials, such as murder cases, will likely take much longer.
“I just think you’re going to see untold amount of frustration,” Spitzer said. “Tough is an understatement.”
Some questions likely will be left to appellate courts. Lacey gave the potential examples of a defendant whose time for trial is approaching, but who can’t be released from quarantine from the jail, or a police officer who isn’t available to testify after testing positive for the novel coronavirus.
Positive steps forward
Despite the challenges, some argue the increased use of remote proceedings and video streaming may in the long term be a positive step for the courts.
“There’s an opportunity,” Fogel said. “I’m not saying we’re going to keep all the changes, but we’re going to have to learn from the crisis and may come out of it with things that make the system better.”
In the meantime, Wertheimer had simple advice for those taking part in legal matters in the coming weeks:
“Be patient and be flexible.”