Asymptomatic “super-spreaders” and inadequate testing to detect them. Airborne viral microbes and antiquated ventilation systems. Jury rooms and trial tables too small to permit social distancing. Conferences up at the bench with lawyers and court personnel huddled together. Crowded public hallways, bathrooms and elevators. Jurors, witnesses, litigants and attorneys who do not want to enter the courthouse because they fear infection. Prisoners from overcrowded detention facilities in too-close contact with one another and with guards and others in the courthouse. Lawyers who cannot confer privately with their clients and witnesses while also maintaining sufficient distancing from them.
These are just some of the nightmarish logistical challenges facing our bench and bar on the journey to reopening the court system.
Under the reopening plan put in place by Chief Judge Mary Ellen Barbera, our state courts are scheduled to progress to a new phase on July 20, 2020. In that phase, the courts will entertain a broader range of cases than they presently do, including certain evidentiary hearings, as well as some district court trials.
The phased-in plan aspires to provide for the resumption of full operations by October 5, 2020, including jury trials in criminal and civil cases. To the extent that matters may be handled remotely, judges are encouraged to do so under all phases of the plan.
At its essence, reopening the courts means weighing due process concerns while also implementing responsible measures to protect the health of court personnel, lawyers, and the public. Until the pandemic abates or a vaccine is developed, the necessity of conducting in-person hearings in non-emergency matters must be carefully considered.
Judges who hold in-person proceedings must enforce social distancing measures and the wearing of masks, among other preventative measures. Judges who hold remote proceedings must take care to ensure that the parties have effective assistance of counsel, and that the attorneys are not simply relegated to the role of being remote bystanders at their clients’ virtual hearings.
Due process concerns also require providing indigent and pro se parties with access to the technology that they need to participate in remote proceedings. Consideration must also be given to ensuring that court proceedings which should be open to the public remain so, whether those proceedings are conducted virtually or in-person in courtrooms with drastically reduced capacity.
Meeting these unprecedented challenges will demand enormous patience, flexibility and creativity by our bench and bar. It will involve expensive changes to the entire court system, and a commitment to harnessing technology to re-engineer the courtroom experience in ways we never expected. It will require a re-examination and modernization of the rules of procedure and evidence.
And it will necessitate vigilance not only to protect the health of all participants and employees of the courts, but also to safeguard fairness and the due process rights of the parties.
Editorial Advisory Board Chair James B. Astrachan is married to Baltimore City Circuit Court Judge Julie R. Rubin.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Arthur F. Fergenson
Julie C. Janofsky
Ericka N. King
Stephen Z. Meehan
C. William Michaels
Angela W. Russell
Debra G. Schubert
H. Mark Stichel
Vanessa Vescio (on leave)
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.