How coronavirus is crippling courts and raising concerns among civil liberties advocates

Judges and attorneys who spoke to ABC News painted a sobering picture.

March 24, 2020, 4:06 AM

The rapid spread of novel coronavirus throughout America’s communities has crippled courts across the country as judges, attorneys and defendants try to come to grips with how to achieve justice under the law while balancing public safety concerns amid ​a pandemic.

In conversations with ABC News, current and former judges, attorneys and public defenders painted a sobering picture: ​jury trials discontinued, ongoing cases significantly delayed, a scramble for technological work-arounds and empty courthouses nationwide as some judges issue rulings from home.

For instance, the very notion of a jury of 12 creates logistical issues with federal and local guidelines for social distancing during the pandemic, violating the White House recommendation to avoid groups of more than 10 people.

The fluid environment, as well as a series of recent legislative proposals from the Department of Justice, including the possibility of allowing indefinite detention of suspects during the crisis, have raised concern among civil liberties advocates who fear that potentially vulnerable populations will be further left behind in an already overburdened system.

Experts say that coronavirus crisis could permanently change the judicial landscape.

What to know about Coronavirus:

“This disaster, this pandemic is going to change the way the courts do business from now on,” Texas Supreme Court Justice Nathan Hecht told ABC News in an interview. “We're going to have to completely rethink how much has to be done in person, how much can be done using technology -- that whole issue that we've just never paid much attention to, is going to be front and center going forward. Our operations will never be the same.”

Dozens of the 94 federal courts around the U.S. have closed and delayed trials. 30 state court systems and the District of Columbia have either restricted or ended jury trials, with many suspending in-person proceedings entirely for the time being, according to the National Center for State Courts.

Last week the Supreme Court took the extraordinary step of delaying ​more than a dozen cases scheduled for March and April, postponing oral arguments in what is the most significant disruption to the court's business since the 1918 Spanish flu pandemic. The justices held their usual private conference on Friday -- but all of the justices participated by phone.

​Lower federal courts are following public health guidelines and limiting proceedings involving more than 10 people, according to the Administrative Office of the U.S. Courts, which oversees the federal court system nationwide. “I strongly urge all of you to exercise flexibility and compassion in accommodating staff needs,” director James Duff wrote in a memo to courts last week.

The office is asking federal district courts and appeals courts to encourage staff to work from home, limit jury proceedings to only "exceptional circumstances," and utilize videoconference and audioconferencing as much as possible.

"Seating a jury reflective of the community has been getting more difficult, especially with so many elderly people afraid to leave their homes," a federal judicial official told ABC News.

At least three federal courthouses -- the Middle District of Pennsylvania, Northern District of Georgia and the District of Delaware -- have been closed after authorities confirmed someone in the facility had contracted the virus. At least six others have been ordered closed by local judges over public health concerns.

The New York County Courthouse stands in New York, Nov. 6, 2019.
LightRocket via Getty Images, FILE

In response to the fast-moving developments, the American Civil Liberties Union warned it would be "watching closely to make sure any use of emergency powers in response to the pandemic is grounded in science and public health, not politics or discrimination."

"As the government takes the necessary steps to ensure public health, it must also safeguard people’s due process, privacy, and equal protection rights," the director of the ACLU's National Security Project Hina Shamsi said in a statement.

Supreme Court Chief Justice John Roberts, who presides over the Judicial Conference of the U.S., the federal court's policy-making body, has the authority to issue sweeping mandates to all federal courts, but so far has allowed each to make its own decisions on operations.

The Conference has established a task force to help coordinate best practices among courts during the pandemic.

DOJ looks to Congress for emergency solutions

In an effort to instill courts with new powers to manage operations during the crisis, the Justice Department over the weekend sent a series of legislative proposals to Congress that could have sweeping implications for defendants' civil liberties during national emergencies as well as immigration law.

One would allow federal chief judges to order that citizens be detained indefinitely without trial during national emergencies. In addition, they are seeking to pause to the statute of limitations for criminal and civil investigations through the duration of a national emergency through one year after it ends.

The proposal also includes a provision requesting that Congress allow use of videoconference hearings even if a defendant objects.

And in another proposal that impacts immigration law, the DOJ recommended Congress mandate those who are found to be confirmed cases of COVID-19 not be allowed to apply for asylum. Additionally, the proposal asks for the ability to deport undocumented immigrants who are confirmed cases of COVID-19 to countries regardless of whether they are unsafe locations.

It’s not clear, however, the level of support such proposals will receive in Congress, or whether they’d stand up to likely court challenges on their constitutionality.

In response to criticism from lawmakers from both parties over the proposals, DOJ spokesperson Kerri Kupec defended the package in a statement Sunday evening, saying it was reflective of what most courts were doing already "on an ad hoc basis" around the country.

"This was triggered by Congress asking DOJ for suggested proposals necessary to ensure that federal courts would be able to administer fair and impartial justice during the pandemic," Kupec said. "Bottom line: The proposed legislative text confers powers upon the judges. It does not confer new powers upon the executive branch."

Juries and ‘social distancing’

According to data from U.S. courts, a total of 726 grand juries were convened across the nation’s circuit and district courts in 2019 alone with more than 180,000 jurors registering their attendance.

“People have a constitutional right to have a hearing before a judge if they're going to be detained and they have a constitutional right, under the Speedy Trial Acts, which are federal and vary from state to state, to have an actual trial including a jury trial if they want to do it,” retired federal judge Wayne Andersen told ABC News.

Andersen, who served on the district court for Northern Illinois as well as seven years on the state bench, stressed that courts are going to have to find an immediate solution for what to do about jury trials if the COVID threat persists. That's because at a minimum with a 12-person jury, Andersen said, there could be 30 to 40 people gathered into a courtroom initially.

The U.S. Courthouse stands in New York, Feb. 24, 2020.
Corbis via Getty Images, FILE

“We may have to set up special arrangements, special courthouses, special buildings that are safer for jurors easier to get to and we may have to make changes in the way jurors are summoned,” Hecht said, echoing Andersen’s concerns. “We don't know yet exactly. If this comes on for months and continues to get worse, harder solutions will have to be explored.”

At a minimum, Andersen said larger courtrooms will need to be used for jurors so judges can “spread people out.”

“Video equipment can also be used even in a courtroom to make documents and other things very visible,” Andersen said. “So instead of jurors, for example, having physical documents which they pass around and carry back and forth, I would put them up on a video screen.”

Attorneys, court workers seek answers on safety

On the ground level, public defenders argue more focus should be put on immediately reducing the populations moving through both the halls of courthouses and incarcerated populations in jails and prisons.

Nikhil Ramnaney, who serves as president of a Union of Los Angeles County Public Defenders in the nation’s largest trial court system, expressed concern in an interview with ABC News about the court’s decision to re-open its doors for essential business last Friday.

“We should be taking extreme measures to reduce public or in-person foot traffic in the courts,” Ramnaney said. “I’ll tell you right now that my membership and the lawyers in the public defender's office are not confident that all those measures are being taken.”

California has one of the largest levels of COVID-19 infections in the country (1,554 as of March 22), although it pales in comparison to New York (15,777).

In a letter to the state's Superior Court last week, Ramnaney and the leaders of several other unions representing the county’s lawyers and peace officers asked the courts to implement a series of sanitation and social distancing protocols to protect the roughly 50,000 professionals who work in the court system on a daily basis.

Ramnaney said that the court hadn’t yet provided clear guidance to lawyers about the specific steps it was taking to ensure facilities were properly sanitized or whether there would be medical screening for individuals who enter the courthouse.

“It's taken a while for them to realize the seriousness of what we're facing,” Ramnaney said. “So how do we continue on?”

The L.A. County Superior Court did not respond to a request for comment on Ramnaney’s claims.

L.A. County Court's presiding judge Kevin Brazile on Monday ordered the closure of the clerk's offices at all 38 courthouses beginning Monday until further notice, with the exception of two clerk's offices in Beverly Hills and Catalina that would remain open only for time-sensitive and essential matters. Brazile also ordered a complete 3-day closure of one courthouse after a public defender assigned to the court tested positive for COVID-19.

How the economy could hit the courts

With the economy in virtual standstill and millions of Americans facing new uncertainties about their financial future, bankruptcy courts could soon face the conundrum of a flood of activity while at the same time keeping in-person interaction to an absolute minimum.

“More people actually come into contact with the federal court system through bankruptcy than any other court in the federal system and probably any other court in the country,” a current federal bankruptcy judge, who requested anonymity in order to speak candidly, told ABC News. “We can't handle the volume that we have electronically, I can tell you that right now. And I could get you the exact number, but I have 3,900 cases on my own.”

According to data from U.S. courts, there were 774,940 bankruptcy cases filed in 2019 alone in U.S. District Courts in 2019, while federal judges handled 296,691 civil cases and 94,205 criminal cases. For comparison, two years after the 2008 recession there were nearly 1.6 million bankruptcy cases filed.

Bankruptcy judges also often spend a significant amount more time physically hearing cases on the bench than other judges, with dozens of lawyers and stakeholders circulating through a courtroom each day and passing reams of paperwork around -- increasing risks of potential exposure to COVID-19 among a large number of individuals, including many senior citizens.

While the judge said additional computers have been provided to colleagues allowing them to access the court’s internal filing system and work from home this past week, they expressed concern that teleworking and video conferencing wouldn’t be viable in the long-term.

“How are we going to hold hearings so that individuals have the right to come in and try and protect themselves and their property, and lenders have the right to vindicate their economic interests as well?” the judge said. “We can delay things for a little bit, but if we were literally to remain closed, then I don't know how we hold thousands of hearings that will be required.”

Coronavirus and the future of the court system

Despite the challenges coronavirus presents the court system, many expressed hope that it could speed reforms that will benefit the criminal justice system in the long term.

Pointing to moves by district attorneys and law enforcement across the country to issue citations rather than arrest suspects for lower-level offenses, Ramnaney expressed hope it will draw more attention to whether locking people up in such cases truly benefits communities.

“I mean, from a public defender perspective, you know, we've always envisioned a significantly reduced carceral criminal justice system,” Ramnaney said. “ It didn't work prior to the pandemic and you know, it's not going to work now. You know, locking people up in facilities that don't have the capacity, that are unsanitary, doesn’t necessarily accomplish anything.”

The crisis could also have far-reaching implications for transparency in trials and oral arguments -- as courts that have at times been staunchly opposed to holding on-camera hearings will in many cases now have to move towards video systems to preserve public safety.

“I think that this will pull the court system into the 21st century when it comes to video,” Andersen said.

Hecht, who serves as the president of the National Conference of Chief Justices, said after speaking with a number of his colleagues around the country about the challenges and changes that could be in store for their courts -- he still remains “cautiously optimistic.”

“People are sensing that as bad as the situation is, we’re not sensing that terrible things are going to happen but we are quite sobered by the whole situation,” Hecht said. “We're just going to have to rethink doing justice in the 21st century in confronting these difficulties and, and maybe others. But if there's anything good about this -- and there's not much, but maybe, maybe that's it.”