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The National Law Journal: ‘Disruption We Needed’: Judiciary Called to Adopt Transparency, Accessibility Reforms Post-Pandemic

By June 25, 2020June 27th, 2020No Comments

A panel of experts called for the federal judiciary to permanently adopt changes to proceedings forced by the COVID-19 pandemic, describing an opportunity to create a more transparent and accessible court system moving forward.

The House Judiciary Committee’s subcommittee on courts heard the testimony Thursday, where witnesses currently outside the federal judiciary urged Congress to take steps to help implement the permanent fixes, like authorizing a study of the effectiveness of accessibility measures and other policies adopted during the pandemic. A federal judge testifying on behalf of the Judicial Conference shied away from more dramatic proposals, like permanently allowing the livestreaming proceedings at the district court level, but agreed there were ways to improve the system.

The testimony was heard as federal and state courts across the country grapple with the fallout from the pandemic, which has left most courthouses physically empty, and events like jury trials and grand jury proceedings indefinitely on hold. However, courts have generally embraced holding other civil and criminal hearings through video or teleconferences.

“This pandemic was not the disruption any of us wanted,” said Michigan Supreme Court Chief Justice Bridget McCormack. “But it might be the disruption we needed to transform the judiciary into a more accessible, transparent, efficient and customer-friendly branch of government.”

McCormack noted her own court has been livestreaming arguments for years, well before she joined the bench in 2012. She said as the pandemic’s effects continue to be felt in Michigan, state officials have been regularly meeting to discuss best practices and determine what other reforms are needed.

Jeremy Fogel, the executive director of the Berkeley Judicial Institute at Berkeley Law School who previously served as a trial judge for the Northern District of California and other local California courts, said the pandemic has provided a trove of data on which recently adopted practices work best and could be made permanent features of the courts system.

“I don’t think we’re ever going back to where we were before,” Fogel said, adding that the pandemic provided an opportunity to rethink how the courts function.

Melissa Wasser, a policy analyst with the Reporters Committee for Freedom of the Press, said courts have generally allowed for more public access during the pandemic but individual districts have varying ways of announcing the remote proceedings, which can lead to interested parties or reporters missing out on the opportunity to observe.

Some at the hearing acknowledged that not every American can participate in remote court proceedings at their fullest extent. Rep. Martha Roby, the ranking member for the subcommittee, said not all citizens in her district in Alabama have access to the kind of technology needed to appear in court virtually.

U.S. District Senior Judge David Campbell, the chair of the Judicial Conference’s Committee on Rules of Practice and Procedure, acknowledged that lack of access to technology has been an issue during the pandemic, particularly for criminal defendants housed in local correctional facilities that weren’t prepared for the possibility of virtual court appearances. He said officials with the Administrative Office of the U.S. Courts have been able to provide that technological support. Wasser also noted that participants could call into hearings if they couldn’t use other kinds of software to appear at or track court proceedings.

While other witnesses said they supported moves like livestreaming district court proceedings when appropriate, Campbell steered away from those kinds of commitments, noting Judicial Conference rules generally block cameras at the trial courts. He directed lawmakers toward legislative proposals the judiciary has previously submitted, like making temporary judgeships permanent, to help with the backlog of cases once courts are back to their normal procedures.

Rep. Lou Correa also questioned the efficacy of studying changes implemented during the pandemic, saying he believes quick action is needed to make sure courts can continue to function as the virus remains in the U.S.

Fogel, who previously led the Federal Judicial Center, said there should be enough data immediately available to quickly push out findings, rather than taking a year or longer to examine the issue. Campbell also noted the judiciary’s intranet includes a feature where best practices from different courts are readily available, so individual courts can see what steps other jurisdictions are taking and adapt any that might work for their own.

Rep. Hank Johnson, chair of the courts’ subcommittee, noted at the start of the hearing that federal courts have had to make tough decisions in responding to the pandemic, balancing the health of the public with the need to carry out justice. However, he said the judiciary can become more equitable and accessible by “following the increasingly well-worn path started by many innovative state and local judges” and adopting those transparency measures, like livestreaming hearings.

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