Video conference court dates has presented ‘challenges’; but in-person court to start soon

Just as governments, businesses and organizations adopted video conferencing in order to function during the COVID-19 pandemic, courts were forced to embrace the same technology to help keep the scales of justice balanced.

But as the pandemic wanes and the courts begin to return to in-person appearances, some of those challenges have been brought to light to those who aren’t involved in the court system.

Boyle County Court Clerk Cortney Shewmaker said there have been challenges to holding court virtually over the past 14 months but their endeavors have been successful “because we’re going on. We’re holding court and have been. It’s not like we’ve put cases off for an extended period of time because of COVID.”

District, circuit and family courts in Boyle County use three different video platforms, and they all look like “a big Zoom meeting,” when court is in session, Shewmaker explained. “It’s just different. The platforms and capabilities are different.”

“But everything is recorded and preserved,” and is entered into the court records. “This is being done statewide.”

And just like in-person court appearances, defendants are required to show up for their court date either via the internet or cell phone, be sworn in and have their rights read to them. However, they can literally be anywhere — in their home, in a parking lot or even going through a fast food drive-thru, Shewmaker explained.

Sometimes the defendant is smoking while waiting to be called before the judge, Shewmaker said, “which is bizarre to me. But there’s nothing wring with smoking in your home. It’s just one of those things that certainly looks a little different.”

Recently as she watched the screen in her office while Circuit Court Judge Darren Peckler conducted his court, Shewmaker pointed out it appeared that a public defender was in her home while representing her client, who was also on the screen at a different location. “Probation and parole are on there, officers who are typically in the courtroom.”

The only people in the actual courtroom are the judge, who was talking to defendants and attorneys on the Zoom meeting, his law clerk, bailiffs and a clerk from her own office, Shewmaker pointed out.

Shewmaker said her staff has been very busy with the video court system too. “They have to provide the order and instructions to people as to how to get on (the video courtroom.)”

Not every defendant has an internet connection or even a good internet connection at home. “You have to recognize that everybody doesn’t have the technology capability to appear for their court date over the internet. There is an option for people to join telephonically. If they don’t have internet or picture on video, the court can call in when their case is called, or they can call in. It all goes into the court record.””

She added, “On court days, we spend a lot of time trying to explain to people how to get the link. People are very worried and concerned they’re supposed to be on at 9 a.m. And as we know, technology is great when it works. Sometimes we have difficulties doing that. We try our best, just as the people in the judge’s office, trying to help people in getting the information on getting on so they can make their court appearance.

A defendant can also be charged with failure to appear if they don’t connect to the video conference on their appointed circuit or district court date, Shewmaker said.

And just like in-person appearances, circuit and district court cases are public, Shewmaker said, “All of those people are on there are hearing what’s going on.” When everyone is logged in to the court session, “It’s just like the courtroom being full of people.”

However, Shewmaker said, some cases being heard virtually are confidential. “Which means we have to limit who can be on. Lock the courtroom and knock people off of the video to make sure that we still honor that confidentiality.”

The judge can ask everyone on the video call to disconnect everyone when a confidential case is heard, Shewmaker explained. People can hang up themselves, or “whoever is controlling the session can disconnect the call and lock the courtroom.”

Shewmaker said Family Judge Bruce Petrie’s law clerk manages his video calls, “the connections and invites, who can and can’t be in the courtroom.”

She added, “Judge Pecker’s law clerk too. Both of them have been phenomenal. Both are great about handling that.”

Even though district and circuit court cases have been handled remotely, jury trials haven’t been allowed for more than a year, Shewmaker said. “And the grand jury didn’t meet for a long while. They met in April for the first time in months. There was a big stack, and it’s back logged, like jury trials.”

But as the pandemic wanes, the Kentucky Supreme Court has ordered that after the first of May judges are “allowed some discretion on opening.” The order also allows jury trials, under very specific restrictions,” Shewmaker said.

Judge Darrin Peckler

Judge Peckler said, “I am looking forward to going back to in-person court appearances. Ultimately, that’s us getting back to normal.”

“We have used remote hearings for jail arraignments for a long time,” but in March of 2020 circuit court came online after the Kentucky Chief Justice stopped all in court appearances due to the COVID-19 pandemic.

The Department of Justice purchased the video platform Vidyo for the courts to use but it turned out to be “problematic and unreliable,” Peckler said. Eventually he purchased Zoom Pro himself so that more people could be on the court’s conference call for longer periods of time.

But, “I’m not too thrilled. I think we got hacked …,” Peckler said. “I’m a little worried about that.”

Peckler said he didn’t know if video courtroom appearances would ever be the norm for the general public. But, “I would like us to get back to in-person court appearances as soon as possible.”

Holding court through video conferencing, “It sort of seems to make the proceedings a little more cavalier. There’s no respect for the things going on and the gravity of what you’re doing.” And when there’s talking in the background it makes it harder to hear, he explained.

Sometimes the defendant is eating breakfast without a shirt on, sometimes they’re laying in bed or gardening, or even sitting in the bathroom, Peckler said. “They just walk around with a phone in their hand.”

He added, “It promotes a casual type of atmosphere. … It diminishes the dignity of the proceedings as a whole.”

Another problem with virtual hearings is that he can’t see first-hand and in person if someone is following their court ordered release conditions.

He can read the reports, but talking to a defendant face-to-face, Peckler said he can smell their breath, observe his or her conduct, and demeanor, and discern if they are under the influence of drugs or alcohol in order to determine if they are following the conditions of their release.

Hopefully, court will be fully in session by July. But through June, Peckler said there will be a lot of restrictions on holding jury trials. For right now, he’s scheduled some in-person proceedings, however, “There’s so many ‘ifs, ands and but’ conditions.”

Another issue will cause trials to last a day or so longer. Jury orientation will be required to be conducted several times in smaller groups instead of just one time to the entire jury pool, Peckler explained.

“The backlog (for jury trials) is phenomenal. We used to think it was huge. It looks like a little ant hill” compared to now.