The Administrative Conference of the United States has begun a similar initiative to continue to hold administrative proceedings during the COVID crisis. A page has been published on the ACUS website that identifies developing agency hearing practices.
You may view a video of this recording on the Bolch Judicial Institute website.
Levi: Hello and welcome to “Coping with COVID,” a podcast and video series jointly produced by the Bolch Judicial Institute of Duke Law School and The American Law Institute. This series examines the impact of the COVID-19 pandemic on the legal system. I’m David Levi, president of The American Law Institute and director of the Bolch Judicial Institute. Today we’ll look at how are courts are meeting the challenge of continuing to administer our justice system during this crisis.
By law and tradition, our courts are among the most open and public of governmental institutions. The quarantine imposed by the virus presents unique difficulties for our system of justice. I am honored to have several of our country’s most esteemed judges with me here today. Diane Wood is Chief Judge of the United States Court of Appeals for the Seventh Circuit in Chicago. Lee Rosenthal is Chief Judge of the United States District Court for the Southern District of Texas in Houston. Nathan Hecht is Chief Justice of the Supreme Court of Texas in Austin. He is also the president of the Conference of state Chief Justices. And Bridget McCormack is the Chief Justice of the Supreme Court of Michigan in Lansing.
Thank you all so much for joining me during such a difficult time. Why don’t we start by finding out how the courts are doing in your particular states and within your knowledge. Some of you have knowledge of other states as well. And Nathan, why don’t we start with you since you are chair of the conference of chief justices, and I’m sure you’ve been focused on this problem for many weeks.
Hecht: Yes, I have David, and the chiefs around the country have really turned, too, to try to number one, keep the courts functioning because we feel like that is our absolute responsibility to be sure that the justice system is there for the people when they need it. But second, to do it in a safe way because the same stresses and pressures that are out there affecting everyone of course affect the operation of the courts, judges, court staff, lawyers, witnesses, jurors, everybody. So, I think every state court in the United States has shut down jury trials. We did it early on. I know most states did it first crack out of the box because there is just no safe way to have six or 12 people in close confines for long periods of time with others around them and practice the social distancing that we’re supposed to do. The group size limitations. It’s just not possible. So, we did that. We’ve tried to identify essential cases, and focus on them and let the non-essential ones go, but you know, there is no easy definition for that. And so, turns out custody cases are pretty important in a time where people are having difficulty moving a child from one home to another parent’s home.
Oddly – interestingly – the virus has been worse in Louisiana than Texas so our governor has discouraged travel across the border, and as you can imagine, there are lots of parents and split families that live on opposite sides of the border. So, you can’t take a child back home to Louisiana and then come back to Texas without going through DPS and quarantines, and all sorts of things. So, there are strange little things like that have happened. We’ve all tried to limit in-person hearings, close courthouses, in some instances consolidate our places of operation— probably the most pervading thing that we’ve done is video conferencing. And, it’s just changing the operation of the Texas courts profoundly. I would imagine three weeks ago no Texas court had had more than one or two video conference hearings in … ever. And as of last Friday, we had 2,000 involving 14,000 people, so we’ve got 1,000 judges, which about a third of our judges are signed up, and we just heard oral arguments on Zoom this morning. I think long-term this will change the way we do business at the courthouse and practice law and lots of other things.
Levi: Thank you. Chief Judge Wood, how do things look in the Seventh Circuit?
Wood: The Seventh Circuit itself is doing quite well again with the use of technology. We decided in the middle of March, or I should say perhaps that I decided, I was going to implement our continuity of operations plan, which meant that pretty much everybody who could work from home is working from home. We have skeletal staffs in the district court clerk’s offices around the circuit— same thing is true at the court of appeals level. There are emergency judges ready if there has really been something, and there have been a few things that have required in-person attention from a judge. But our oral arguments are proceeding mostly by audio. We were told that for bandwidth constraints that if everybody in the United States suddenly plunged into video that might be a strain on the system. But we are doing some oral arguments by video, too, and they are at the same time enhancing the capability of the system, so I believe we may move further in that direction. But anyway, our seven district judges — chief district judges — in our circuit have minute to minute, and I’m part of those emails.
A lot of the biggest problems I think are occurring at the district court level—not at the court of appeals level because we really can do our job by reading a lot of briefs and listening to people and writing opinions.
Levi: Right. How about in the district courts? Do you have any sort of idea of what’s going on in Illinois and the other states, Wisconsin, where there might be bankruptcy courts, for example, such a complicated system?
Wood: Is that for me? The bankruptcy courts certainly do have very hard statutory timetables that they need to follow. They are trying to do things virtually as well through, again, a combination of audio and video, and so far, I believe they are managing to keep their heads above water. Although, quite frankly, in the light of the terrible unemployment figures that we are reading about I think they’re expecting quite an onslaught.
Levi: Now this is what I wondered that the bankruptcy courts may be more comparable in a way to the state courts because they have this big consumer population of people who file for bankruptcy — particularly in economic downturn, and so we might be seeing that but they can’t come into the courtroom.
Levi: Let’s go to Michigan, which is right now really one of the hottest spots, unfortunately, in the country. It has many COVID deaths and a very sad situation. How are you coping out there?
McCormack: Thank you for having me, and thank you for putting this together. Like I think a lot of the other state courts, the Supreme Court has been trying to provide guidance, support, and leadership throughout. I want to thank Nathan and the National Center for the leadership they are providing to state courts around the country. My colleagues and I, I think like most state supreme courts, have issued a series of emergency orders limiting in-court functions to only emergencies and essential functions, limiting any courtroom or courthouse space to no more than 10 people, and quickly ramping up support for our trial courts to do their work remotely. We had actually bought all of our trial court judges Zoom licenses about 18 months ago. We are now in the process of getting them also for magistrates and referees who have an awful lot of work to do.
But just because we bought them for lots of judges doesn’t mean they were using them. I shared Nathan’s report that until a couple of weeks ago, there were some judges who hadn’t done it at all and certainly nobody had live streamed them so the public and the media could participate, which now we are doing. We have quickly ramped up. We issued an emergency order basically doing away with any rule that gets in the way of a judge doing a hearing remotely from his or her home or somewhere else because a lot of counties … not a lot of counties … but at least a number of counties that are hard hit like Wayne County which is our biggest trial court in the state … of course that’s where Detroit is … only three judges are allowed in the building at any given time, so unless we figured out how to support them in doing their work from home, we were not going to be able to get a lot of work done. So that’s exactly what we’ve been doing, and I’m very proud of my team here at the Supreme Court. It’s a non-unified system in Michigan, so all we really have are carrots and sticks and they’re kind of those little mini-carrots and they are kind of twigs they are not really big carrots or big sticks. But with support and resources, trying to give the judges what they need to be able to do their business remotely.
I’ve said a number of times that I feel like this is not necessarily the disruption we wanted, but I think it’s the disruption we needed, and we’re also trying to throughout this gather best practices. We quickly put together a task force with our county clerks, our county commissions, the folks who fund the trial courts, and keep our records to figure out everything we’re learning now so that we can make sure we leave with the best of it. There is a little bit of lemonade here, and so we’re trying to make sure we capture that lemonade throughout the process. It’s busy and it’s hard. There’s an emotional toll as well. I mean we’ve lost colleagues. We lost a court officer in one of our district courts the other day, and obviously there have been a number of police officers and deputy sheriffs, and now some of our own staff have family members who we’re losing. So, there’s sort of an emotional and psychological toll that it’s hard to factor in what that does as well. But we’re making the best of it and trying to support the trial judges in particular.
Levi: Thank you. Judge Rosenthal you’re on the border and in a major metropolitan area and you have multiple courts, it must be a very difficult period.
Rosenthal: Well, as Chief Judge Wood noted, the trial courts have a different set of issues, and they are particularly complicated because we have criminal as well as civil cases. We have in our district seven divisions. Four of them are on the border with Mexico. One of them is a functional, not geographical border division, because of Corpus Christi, which is functionally a border division because it’s very close to a major checkpoint, which is permanently staffed by an AUSA waiting to refer cases to courts for criminal prosecution since 2018. And then we have Houston, Harris County, which is the fourth soon to be third largest city in the country with a double whammy facing it that affects our bankruptcy courts, in particular, which is that oil prices are in the cellar and the pandemic is off the top of the roof. So, we are already looking at an officially declared recession on top of the impact of COVID on the economy, on people’s lives, on people’s jobs, everything.
So, let me start with the nature of the chief judges’ role on all of this. As a chief district judge I have no authority over my other district judge colleagues than I had the day before I was chief district judge. Zip. None. So, I have lots of added responsibilities and no added authority. Like Chief Justice McCormack; it is a carrot and stick approach helped by doing what is in our collective self-interests whenever possible with the support of all constituents. So, what are we doing in criminal cases to start in various divisions? What are we doing in major civil cases? Mine are civil cases and bankruptcy cases. With the help of the Chief Justice and the Judicial Conference, two things have happened that have helped us in each district considerably. One is that we have a new set of authorization to do remote proceedings in criminal cases that we could not have done earlier. Some via waiver, some not requiring even a waiver on the record, but we can do them — we can take guilty pleas, we can impose sentences in some kinds of cases, and we are. We can have initial appearances by magistrate judges with the defendant in his or her detention facility whether it be a state one, a county one, or a federal one. We can have the public defender with a secure access to the defendant before— to maintain attorney-client privilege— before the hearing begins, we have the ability of the prosecutor, the judge, a court reporter, and all the pretrial services, the probation officer, plus the defendant, plus the defense counsel, all to be there remotely at the same time. We can do 12 of those in a bridge of technology at one time in the district. For those that don’t require that level of security, so if we’re not doing the initial appearance by the magistrate judge in Houston, for example, but that can be done with less secure approach— now all of our judges have Zoom licenses, we all have had training on various technologies that allow a kind of remote access.
So, what are we proceeding in criminal cases? There are no trials that involve juries. Civil, criminal, grand jury, or otherwise. There is a decline — a marked decline, in immigration related violation, arrests, and prosecutions everywhere. In part, because border traffic is essentially stopped. The border has been closed except for workers, more on that later, and the U.S. attorney’s office is simply not prosecuting some of the misdemeanor offenses that they were robustly pursuing before this changed their priorities. But we are not deferring hearings in cases that require prompt decision. A prime example— someone needs to be … to plead guilty and to be sentenced because that person is already finishing a time served sentence. Time Served. Exactly. We can’t wait. We’re going forward on those. By contrast, if someone is waiting to be sentenced, or even plead guilty and are waiting to be sentenced, and is in custody on what is going to be a 10-year sentence at least, why bother going forward now? We don’t need to. We can use our resources to hear those that need to be heard now, and on those where we think we might benefit from in-person allocution we will wait. So, most of our judges are following that kind of approach, and we put in standing orders where appropriate to indicate that’s what we’re doing. Some of it is left to individual judge discretion, and we’ve left a lot to division-by-division discretion because what goes on in Laredo is very different from what goes on in Houston, Texas. Our dockets are different. They don’t have in civil cases to speak of.
So, on civil cases, bench trials, some of them are proceeding, discovery disputes are proceeding, there’s no reason they can’t in many cases. They are pretty easy to do via Zoom or via conference call with media access where appropriate. On the bankruptcy front, our bankruptcy judges were on the forefront of technology even before the district courts and they are capitalizing on that we have a big complex docket that is growing by leaps and bounds as oil fields services companies and oil-related companies lay off and themselves declare bankruptcy. We have a lot of cases that will flow into the consumer bankruptcy channels. We have judges poised to meet that demand, and they have the capacity to do literally 100-person participation or waive the requirement of various meetings and appearances, and they are doing that. Some of that ability has been expanded under the current situation.
So, we have a lot of orders that we have crafted that judges have bought into that are on the website that put everybody on notice of this Brave (we hope) New World that we have temporarily occupying. All of the orders say that this is temporary but we all hope to gain from the process that Chief Justice McCormack described— let’s live and learn.
The last thing I would note is that like every district and place in the country, we’ve had deaths, and they have required, they have been a wake-up call that has led to the closure to the public of the Houston courthouse and even to judges, we have dissuaded everybody from coming in— everybody. Many of, all of, the courthouses throughout the district are no this week and probably next, closed to the public. Some of them have Post Offices, too, and we are trying to figure out how to deal with those with multiple tenants. Some are dedicated courthouses and easier, and we’re dealing with issues that go from the ridiculous to the sublime. When we re-opened to limited public access, or when we have skeleton employee access, or when we have the continued presence of delivery people, do we make everybody wear a mask in the public areas? What about people who don’t have a mask? We don’t have enough to hand them out. What do we do? Is a bandana enough? How about fill-in-the-blank, silly as it sounds, but it matters, it all matters. It impacts the people we serve. So, all I can say is we have incredible cooperation. I have a twice a week conference call with all of our magistrate, with our security people, the U.S. marshals service, with representation from the major divisions, the U.S. attorney and his first assistant, the public defender, her first assistant, head of CJA panel, head of pre-trial probation, and all of that gets disseminated to everybody, the clerk’s office, and we use that cooperation to great advantage. All of the chief district judges throughout the Fifth Circuit are in touch with each other and that’s enormously helpful as well with Chief Judge Owen of the Fifth Circuit who has been enormously supportive. So, I could ramble on forever, but as chief judge, I have never worked so hard and never learned so much, and plus there’s the day job, which for all of us continues.
Levi: So, you know, reading and writing you can do from home, and I think everybody has done quite a bit of that in the past anyway, but trying cases on a digital platform presents some unique challenges, I think. Even when you don’t have a jury you still have quite a few participants, and moving parts, and as we’ve discovered here, even today, the technology is never flawless and judges are operating from home. Why don’t we… what would you say, starting with you Nathan, what has been the biggest challenge that you would identify, that has weighed on you in this period?
Hecht: I guess I would say the personal challenges of just trying to do, to help people figure out how they are going to go to work, what they are going to do when they get there, um, you know, the court system has— we surviving pretty well in that regard. The Texas judges in the court families have not had a whole lot, they have not been hit very hard themselves with the sickness. The families have been. And, as Lee says, the economic downturn that is occurring at the same time is really causing a lot of problems. We’ve stopped residential evictions for the time being, but those are just piling up, and people are starting to worry when we come out on the other side of this, four, six, eight, ten weeks, whatever it takes, what am I going to do for a job? What am I going to do for a place to stay? What is my family going to do? And those kinds of just, the human toll is pretty heavy. With the system itself, you know it’s grinding around pretty well and trying to get the job done, but the personal struggle the human struggle is pretty heavy.
Wood: Well I’ll divide it up into the courts and outward-looking — how are we serving our public, how are we making people feel that they’re really is a court system at all levels. The state courts, the federal courts, you know, they’ve got the same problems in many instances that they’ve had all along, and, in terms of the internal I really think people have been incredible, they’ve risen to the occasion, and right now we are not in any risk— at least in the Seventh Circuit— of laying people off because of that we’ve been encouraged to make sure that people … let’s say that someone can’t telework. I mean we assume everyone’s got great computers, and Wi-Fi systems, and all the rest, but that’s not true. We know that some people don’t, but finding ways to work with them I think has been one of our top priorities and we’ve done so, so far.
What I worry about both internally and externally is to what degree are we solving this problem by kicking it down the road. So, I’ll give the speedy trial act. The administrative office of the U.S. courts keeps through its JNET facility, you know, coronavirus has practically taken the whole thing over. Anyway, they have frequently asked questions, and people have asked, for instance, “How does this affect the Speedy Trial Act?” Well, at one level you can say if the pandemic makes it too dangerous to impanel a jury, you can make an ends-of-justice finding, and say we’re going to not have the jury trial right now. But, if the defendant has invoked his or her right to a jury trial, that doesn’t mean that is doesn’t happen. You know, so I devoutly hope that at some point in a month, or two months, or three months, or sometime we will be back on a solid footing, and then we’re going to have a problem of volume because other things in the meantime will have been coming in. It’s just worth planning for I think for everybody to see what the medium to long-term is going to look like.
Again, our courts have done I think everything you can do, and we actually have not shut the courthouses, we just have them open on a very limited basis. It’s probably as a practical matter not too different from wholesale closure, but we do have a lot of litigants — huge number of pro se litigants — who don’t have the ability to file electronically, they have to give you a piece of paper, so we’ve created drop boxes where you can put that in, and we’ve told them what the address is if they want to mail it, and we’re trying to be flexible about deadlines because there are a lot of deadlines triggered upon receipt in the clerk’s office, but people don’t know when that’s going to happen so we’re trying to be flexible about that as well. But I think it’s that long term that, I think, gives me some concern because we’re so busy trying to cope right now that we don’t have quite the resources to think of the longer-term.
Levi: Right. Bridget, what’s the biggest challenge right now?
McCormack: I think it’s … I think there are two things. One is we are not a profession that has the ability to like turn on a dime and learn new tricks in our DNA. In fact, we’ve spent most of us a career advising people in other fields to be less risky, to be more risk-averse, and so, we’re not Apple, it’s not easy for us to turn and learn a whole new way of doing business. And so, it’s quite clunky. And that’s, I think, that’s a problem that kind of runs through just the DNA of the whole profession. It’s hard for us to pivot. But at the same time, I think the human toll is showing up everywhere — obviously in the public who need us, and need to rely on us, and in fact, there are going to be more and more legal questions for our courts to answer as a result of the public health crisis, and at the same time, fewer and fewer people are going to be able to afford help for those problems. We were thinking really creatively and innovatively about how to solve our access to justice gap before this happened. That becomes so much more important now, and yet, we’ll all be doing it with a lot less money. I mean I guess you federal judges have a federal government that prints money. Our state, we don’t, our state government doesn’t print money, and we’re going to feel it, and so there’s going to be a lot of people who need us, and aren’t going to be able to afford lawyers to figure out how we can help them.
And, I think there’s just the uncertainty and the sort of anxiety running through all of our communities of people who work in our courts and the people who our courts serve makes it especially complicated. I think it’s both of those.
Levi: Just before I turn to Lee, I’d be interested — Bridget and Nathan our state systems are so complex, and handle so many cases, we have state courts that don’t have electronic filing. We probably have many, many state judges out there who don’t have any computer equipment that’s at least supplied by the court. They may have their own at home. But I know North Carolina does not have electronic filing as we sit here today, and you know, aspires to it, but I think that’s maybe fairly typical around the country. You have some states that have been in the lead here in technology and others, you know, are struggling to keep up, so this has probably hit those states particularly hard, or those judges.
Bridget: I didn’t mean to, I’m happy to let my friend Nathan go first, but you’re absolutely right, David, even in Michigan we have— we don’t have state-wide e-filing yet, we don’t have … we are two years into what will be a five-year process to get to statewide e-filing. And the reason is we have 242 trial courts in 83 counties with I don’t know 136 funding units. I don’t know that 136 number may not be the right number, the other two number are correct, but my point is that there are … it’s a very complicated system, and each funding unit has its own priority. So, some judges in some counties have sophisticated technological support and some far less sophisticated technological support. The Michigan Supreme Court has the oversight roll. Constitutionally, we have an oversight roll over the courts of the state so we have, thank goodness, worked for the last few years to get everybody Zoom licenses. But I will not name him, but a trial court judge who I adore told me recently that he really wanted to try this whole Zoom thing but he tried to open his laptop, and it turns out you need a thing to make it work— you need a thing to connect it to the wall. It took me a couple of questions, and I figured out what he was talking about, the thing he was talking about was a power cord.
Levi: Yeah. [Laughs] Oh dear! Nathan.
Hecht: We’ve got electronic filing in all of our general jurisdiction courts in Texas … civil and criminal cases, and we’ve had it for several years, so that’s not really a problem. It’s really the equivalent of PACER. But I know New York, for example, does not. Most states don’t. And New York doesn’t, and that’s required them to close down filings because they don’t want to accept paper filings and if they do, they want to hold them outside or do something with them so they’re not touching them. Um, so that’s a problem. But then, Texas is such a big state. We’ve got 254 counties, Brewster County out by El Paso is bigger than the state of Connecticut, and it has 8,000 people in it, and you get out in those areas and they don’t have WIFI. They don’t have broadband. When they’ve got internet access it’s by satellite, and so, it’s easy enough for me to work at home. I’ve got everything set up just like the office, but for a lot of people, it’s not that easy.
Levi: That’s interesting. Lee, biggest challenge?
Rosenthal: Well I think it’s a combination of what all of the speakers before me have identified. So, Chief Judge Wood put her finger on it. We are kicking a huge, huge can down a very small road, and there are going to be a number of jury trials, particularly criminal, that will demand prompt attention as soon as the restrictions allow that to occur. We have … we have done what we can as a district, or on an individual judge basis, we have provided lawyers and judges with forms of orders to use in Speedy Trial Act cases, and they have been entering them. We have provided templates of proposed orders with findings in compassionate relief applications, which are ramping up at a great rate. We’ve done what we’ve can to provide judges with as much support as possible for getting along now but that is support for deferral essentially. So, when this is over, and we have the ability and juror pools willing to come in and sit for a day, or days on end cheek by jowl, in significant groups — certainly over 10— when that occurs, we’re going to have a huge amount of backlog to work through. That doesn’t even talk about the civil trials. Some of the bench trials, uh, David Levi referred to the challenges of going forward with those. I entered an order yesterday continuing in two weeks to give us time to work out the technology a two-party multi-lawyer bench trial, entirely electrically. Remotely. We’ll see each other, we’ll see the witnesses, we’ll see the exhibits, we’ll have a court reporter, all the lawyers will be present, but it will be no one physically in the same room with one another, and that’s how we’re going to do it.
Levi: How do the lawyers consult with their client? Whether it’s a criminal case or civil case, you know the judge asks a question, and you say, “Your honor, just a moment please.”
Levi: You can put everybody on mute, including the judge?
Rosenthal: You can put everyone on mute, or they can put themselves and their client on mute, there are lots of different ways to do it. They can send each other virtual notes.
McCormack: Zoom allows meeting rooms David. Right. Actually, the technology is pretty impressive. You can put them in meeting rooms so they can talk privately before they come back. There are ways to do it, and there are judges doing it.
Levi: Oh, that’s pretty good. I’ll bet there are a lot of mistakes, too.
Rosenthal: Yes, there are, which is why I’ve allowed two weeks for them to figure it out, and then let me know. Yeah. But Chief Judge said, in addition to the kicking it all down the road problem, which is huge I mean huge. We will have staff who when this all lifts say, “I need a break.” Well, sorry guys. And we have a whole new world here that we are all and Chief Justice McCormack’s note on emotional toll. We are all lab rats in a global experiment. No control group. No single person in charge, with challenges that we are encountering for the first time to put it on the 50,000-foot level. We have a pandemic— a global health emergency— in an age that for the first time intersects with mass incarceration. Yeah. What do we do with that? That’s just one problem.
Levi: Let’s talk about the incarceration issue because judges have … federal judges don’t tell the Bureau of Prisons who to run itself. [Group: We try David. Yeah (laughs)]. They have their own boss, but there’s an intersection there after all. You detain people, and they’re held in the jail, the marshal has a contract, and state judges have a more direct I think line of authority over the Sheriff’s operation, or at least they do in some states. It may vary from state to state. But, this problem of the virus in the prisons and jails … how are judges seeing this come to them and how are you dealing with it? Anybody. Bridget?
Wood: Well there have been plenty of lawsuits filed. Go ahead Nathan.
Hecht: Well, I think it’s very complex David, and in Texas, for example, the judges do not have much control over the sheriff. The sheriff runs the jail. The county pays for the jail, the state pays a little bit. The judges put people in the jail, and to prosecutors bring the charges in the first place. In Texas, they don’t agree on who ought to be in jail, whether in misdemeanor should be in jail, some, whether only violent felons, how do you determine violence. There’s a lot of disagreement, and meanwhile, the Harris County jail has 8,000 people in it. Valace is huge, too. I don’t know what the population is, but it’s very big, and you’re worried about if you get sickness in a confined environment like that there’s just no telling what would happen. It could just ravage the place. Um, on the other hand, a lot of those people are in jail for a reason because they are a threat to the public safety, and turning them out doesn’t do anything for that. So, it’s a very, very complex problem, and our political leaders in Texas right now disagree about some of the ways to handle that.
McCormack: Let me tell you what we did in Michigan, David, I mean so there’s county jails and there are state prisons. The county jails— in Michigan we have 83 counties 81 county jails. Two sets of counties share a jail, and we know actually … coincidentally for the first time, we know about those county jail populations because for the last 12 months the lieutenant governor and I tried a jail and pretrial task force to collect statewide data. It was bipartisan, and state and county level to figure out why our jail populations have grown as much as they have. Across the nation, jail populations have tripled over the last three decades. Crime is at a 50-year low in most places. We wanted to understand why that was. Who is cycling through those jails and why? And we learned a lot about who that is, and we made a series of recommendations, aggressive robust recommendations to legislators about how to reduce jail populations consistent with public safety. In fact, probably enhancing public safety.
So, we were lucky to have that set of recommendations and that data at our fingertips when this happened. We had literally just delivered it to the legislative leadership in January, so the Sheriff’s Association the executive director of the Sheriff’s Association, and I issued a joint statement encouraging our chief judges who have some authority to reduce jail populations in their county jails together with their county sheriffs to go look at the list and figure out which among the inmates they could release consistent with public safety, and we had this great set of recommendations and data to support them. And as a result, our jail populations across the state are down between 25% and 80%. They are at 40 to 50-year lows in almost every county. And frankly, you know partnering with the sheriffs was an important part of it. You know, the sheriffs don’t get to phone into work, and jails are cruise ships man. They are cruise ships. Those folks are stuck there, and so we felt we had a real moral responsibility to do something. And it worked here. Prisons are obviously a different story. I don’t have any say over people who are serving sentences in the state prison. The governor has some authority, and I understand here in Michigan she is looking at what if anything to do with that authority. Some governors have taken … the governor of Kentucky I I think commuted 1,000 people today or yesterday, so there are some governors doing that, but that’s not something I can do anything about. The thing that I could so something about was county jails, and I felt like I had to do it. And, it made a difference. We’ll see how the pandemic goes through those systems.
Levi: Diane, you mentioned that you’re getting cases. What kinds of cases?
Wood: So, there are two broad types of cases that you’ll get. There’s one group of cases where there has been somebody either in a jail or prison, actually for that it doesn’t really matter state or federal facility, who is COVID positive who’s actually sick. And so, that set of people would like to be released whether it’s compassionate release or whether it’s you know just transfer to some kind of adequate medical care, something like that. Then there’s another set of cases where people are saying actually both on behalf of the inmates and behalf of the prison guards and the facility people that the conditions are the antithesis of social distancing right. They are very crowded. They are all jammed up together, and they think it’s a train wreck coming. And so, they say you know this jail or this prison needs to be ordered to somehow or another however you do it build another facility, release people, we don’t care, but create the kind of safe living environment that would prevent just a wildfire of disease going through the facility. So, both of those are there. There’s one case pending against the Cook County jail. I think that might be in the state courts. We’ve had cases dealing with the Illinois prisons file that are moving very quickly on an emergency basis, so I won’t say anything else about that because it may reach the Seventh Circuit. But, I think we need to remember that there a both “the problem is already there” kinds of cases and ” we want to prevent” kinds of cases, and we want to prevent … and also the men and women who serve as the guards and the administrators in the prison are very much in this game too.
Levi: Yeah. Could we talk a little bit about the things that have to happen, or at least where you’re getting pressure? Nathan mentioned this a little bit at the beginning with their custody cases that a child has to have a home. The U.S. attorney may wish to impanel the grand jury. There may be crimes of a nature that can’t be put on hold because somebody is about to flee, or something terrible is about to happen, where evidence may be lost. We can all think about these things. What are we doing for the things that absolutely have to happen? Are judges going into courthouses? Or are there all these work-arounds? Or just, what’s happening?
Wood: Hey David, before anybody answers, could I throw domestic violence into this mix because it certainly reads that it’s this epidemic and it’s the state courts that largely take care of those cases.
Hecht: You know work in place or being together really sadly takes its toll on people and our domestic violence cases are pretty high. They have gone way up just in the last couple of weeks. They’re not so hard to handle because yes, judges are going in or they’re making arrangements to have a video conference of some kind. But usually a domestic violence case is pretty easily presented. There’s the victim and the judge and the court reporter and maybe a clerk, and a lawyer, but it’s not a complex thing, and usually it happens fairly quickly. To get a protective order, for example. But the courts are handling all of those as they come up. I don’t think any has been turned away. On custody, those family kinds of issues, they probably missed a step for the first week or so of the pandemic, but since then I think they’re handling those mostly by video conferencing. The real problem is criminal cases. They just cannot be tried to a jury. We don’t have a Speedy Trial Act in Texas, but we have limitations on when things are expected to go to trial. And, there’s nothing to do but push them. I mean there’s nothing else to do. I think it makes it hard to get pleas because the defendants and the counsel know that they’re not going to go to trial, so that’s a real problem and a lot of Constitutional scholars and civil rights people are saying this can’t go on very long because these are really important personal rights and they are.
Levi: Yeah. Anyone else?
Rosenthal: All I can say is that all of those things apply in great force to the federal trial courts who are hearings some of these constitutional challenges, and the issues of federalism, abstention, limits on federal authority over sister state institutions when the states are not as able to result on cooperative efforts because of the politics of the policies or whatever reason despite every one operating in good faith, it is enormously challenging to figure out what the appropriate constitutional role is while making sure that we give every indication that we are in fact here and doing our jobs efficiently and fairly because the public needs to know that this institution is up and running. We do not have COVID. We’re here. But that’s hard. It is very hard, but it is what we need to do even if parts of us are physically closed. Diane is right about the pro se mix, both civil and criminal, in different kinds of ways. We do have drop boxes and things like that, but there is some minimal degree of human involvement required. What is it federally? What is it informally? That’s what we’re struggling to figure out, and then figure out how we can ramp back up, unpack all of this, figure out the priority.
Levi: That’s going to be tough.
Rosenthal: That’s going to be enormously difficult. Stay tuned.
Rosenthal: Go ahead.
Hecht: A reporter asked me yesterday how come people can go to Costco and you can’t try a jury trial? And, I said, “Well, cause jurors don’t volunteer themselves and their families to get sick and the people that go to Costco do.” She wrote it down, and I think it was a good enough answer for the time being, but at some point, that’s going to be a pretty pressing question. Yeah.
Rosenthal: It is. It is. In Texas, the wine shops and the guns shops are both essential and open for business. Physical presence.
Wood: I love what Bridget said a few minutes ago, though, which is that maybe this will jolt us out of our stodginess. Think of what’s happening with the bar. I pick up the paper and see that the New Jersey Bar has decided that well there is just not going to be a bar exam this year. You know, we’ll just let young graduates from law schools practice with experienced lawyers, and you think, “well, — except they can’t get a job — “except they can’t get a job, but maybe they can help the pro se people for a while and get some experience.” But there may be far reaching changes not actually just in the courts but in the legal profession as a whole, and maybe they’re due.
Levi: So, let’s talk about that. That will be our last question, and I’ll just ask each of you. You are among the leadership of our judiciary. We don’t have a command structure really. You’ve mentioned that. You have to lead by force of example and persuasiveness. What do you hope when we get to the other side of this — whether it’s another month of six months, let’s hope it’s somewhere around there — what do you hope we will have learned? And what is that you hope we would take away from this and implement, or will it just simply be a bad nightmare? Diane, do you want to start?
Wood: Okay. I think that there is a lot that may be positive that comes out of this. Remember not so long ago when we had a group like this talking, we would be bemoaning the costs and delays in the civil justice system or for that matter in any part of the justice system. I think having forced us to use technology more effectively we don’t have to dial it back to zero. You know, maybe we dial it back to 35 or something. We find ways that we can make it more cost effective for all participants in the system to use these technologies when they’re willing to do so. You can ask them. We still hold oral arguments such as they are but we allow parties to wave if they don’t want them, and when both parties waive, they feel that they’re still on a level playing field. So, I think that’s hopeful. I also think that if we can really keep pushing to solve the problem of the digital divide, then the justification for using these Zoom or whatever, if we have public library access or courthouse access, or for all I care in the front of every Walmart we have some sort of station where you can come e-file. I think there are ways that we can build on this experience to increase access to lower costs.
Hecht: Yeah, I agree with that, and I think we’re going to learn to go things more efficiently. I know for example that the states have been trying to develop an online dispute resolution system to improve access to justice, and it’s been really hard. But just in the last couple of weeks, a lot of legal aid providers have completed work on more of a computerized matching system for pro bono lawyers and legal aid offices and clients that I think will make a big difference there. Um, and as we explore things like that and see the technology extending out further I don’t think we’ll go back to doing things the way we were doing them six weeks ago. I think there will be a lot of video hearings going forward. There will be … we’ll have to use associate judges, special masters, or something to get through the pile of stuff that’s going to be there when we can get more back to work, and I think when we do that we’ll say, “Why don’t we do this all the time?” And so, just a lot of what’s coming out of this is going to change the way the courts operate.
Rosenthal: Just very briefly on top of what’s already been so well said. Yes, we had challenges before. These are temporary adjustments. How many of them makes sense to keep on a permanent basis with modifications or without? Good question. We don’t know. We’ve got to figure that out and at the very same time, we’re addressing the huge backlog that is being built up and added to every day. At the same time that we’re going to have to deal with whatever impact this has had not only on our court families but also on the members of the public who are going to come to us demanding relief immediately because they’ve been waiting. Yeah. So we’ll have all of those problems, and in addition to the continued review of how technology can serve us without shackling us or stripping important values like the values of physical presence, looking into the whites of their eyes, having witnesses subject to confrontation, all of those things. Those are values that we have cherished. How are we going to preserve them in the temptation of technology to let us save money and work faster? And not just us saving money, but what about the lawyers, what about the businesses who they’re litigating on behalf of who are going to be so cash-strapped at the end of this that they’re not going to want to put a lawyer on a plane to come to see us for a long time at the level they used to. So, how are we going to continue without losing more than we want to lose?
One area where we anticipate a wave of litigation— claims by companies like restaurants or hotels for business interruption, for the insurance coverage. Oh yes. So, we have a proposed system of initially mandatory disclosures targeted to those cases that we are working on that we’re going to be using in our court. Good for you. Well that’s planning. Yeah, that’s planning, but we’ve got … I’ve got a little committee set up that is adapting things that we’ve already used in similar kinds of insurance disputes arising from natural disasters. And is this a natural disaster or man-made one? I’m not going there, but I don’t need to. We have the legal and factual issues let’s figure out a way to expedite the resolution of them if we can. We’re inspired by knowing what lies ahead to some extent.
Levi: Good. Bridget, last word.
McCormack: Yeah, who was it that said we should never waste a crisis? You know we were due for an overhaul. There have been I think the leading thinkers on access to justice have been pushing some serious rethinking of how we do business in our profession for a long time, and now we get to run the experiment as I like to say. Um, and that’s a good thing. Uh, you know technology is not going to be the answer to everything that ails our profession. If your design is bad, technology that builds on that same design is just going to be bad technology. But, I think this is going to allow us to rethink our priorities and how we do business even beyond technological shortcuts. We don’t probably need forms with Latin words that people can’t understand.
McCormack: There are probably ways that we can simplify our design, simplify what we do, and come through this doing it better for more people. And, if that’s one of the things that comes of this, that will be a very good thing. Well, thank you all.
Levi: Thank you so much for taking the time to discuss these important questions and issues. Thank you to all of the judges, lawyers, court personnel, law enforcement in this country for working so hard to ensure the continuity and accessibility of our courts during this unprecedented crisis. I think we all know that the health workers are probably the ones who are most exposed but our court personnel and our judges are also doing heroic duty during this time. This has been “Coping with COVID” a podcast and video series produced by the Bolch Judicial Institute at Duke Law School and The American Law Institute. I’m David Levi. Thank you all for joining us.