What Does The Landscape Look Like In Terms Of COVID-19 And Your Practice Areas?

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I had a conference with a prosecutor and judge in Bloomfield on Friday the 13^th of March at about 6:30 p.m. Covid-19 fears were rising. But we said, come hell or high water, a special session municipal court DWI trial would happen. The next morning, New Jersey Supreme Court Chief Justice Stuart Rabner issued the order on that, for practical purposes, completely shut down the municipal courts. The prosecutor called me and said, “You know John, I know that deep down you didn’t want to try this case, but you didn’t have to start a pandemic to get it adjourned.” We finally concluded that case this past Monday with an in-person court appearance.

In the very beginning, most court appearances were done via a conference call. Within a few weeks, various virtual platforms were being used by the courts, including Zoom, Webex, and Microsoft Teams. Of all the platforms, Zoom has proven the most convenient to use. We’ve been handling case management conferences and non-testimonial motions virtually since then, and it’s been working very well. One of the structural problems is that court hearings are supposed to be public events, and most courts have not yet figured out how to preserve the ability of the public to observe court proceedings while at the same time remaining virtual.

In New Jersey, the administration of municipal courts is fractionalized by the municipalities who pay for them. We have over 500 different municipal courts in this state, and against that desire for home rule is the desire of the Administrative Office of the Courts [“AOC”] to impose centralized uniform standards on all courts. As a result, we see many different approaches to handling court appearances. The courts that have dealt with it the best pay the most for their Zoom license. They place their Zoom link on their website, and people who are on the calendar enter their code. People who are not on the calendar go into a Zoom room to observe the proceedings–a nice feature that I haven’t seen elsewhere. There’s been some concern among prosecutors who have found it difficult to navigate the law and other attorneys in the virtual world. Some prosecutors complain that their workload has increased because they feel compelled to call defense attorneys outside of the court session, and this adds to the amount of time they have to spend dealing with individual cases.

The courts that have preserved public access (e.g., Toms River Municipal Court) operate very similarly to the way they did when court hearings were held in person: you show up, enter the Zoom meeting, the prosecutor talks with you in a breakout room, and then you go into the courtroom before the judge. These prosecutors have been able to manage the COVID-19 outbreak with little additional work because they are handling it the way they always did.

Prosecutors generally like to keep their workload in court and not have to deal with cases when they’re not in court. In New Jersey, courts give prosecutors a lot of deference in that way. The courts probably appreciate a prosecutor’s workload more than they would a defense attorney’s workload. That being said, I think the true balance should probably lie somewhere in between because I do find that when you deal with prosecutors outside of court, they tend to be a little more thoughtful about the case. As a result, you get better resolutions or at least manage the case to the point that you know exactly where it’s going, which is either a plea or a trial.

Courts began to open up in New Jersey towards the end of June. My first in-person court appearance was June 29 in Wall Township. There was a large courtroom, so we were able to maintain social distancing. It was the tail end of the trial with no testimony, so wearing a facemask was not an issue and the case was concluded in a fair and efficient way. There is an open question of whether public access was afforded, but in reality, very few people want to go to municipal court just to watch; they’re only there because they have to be. We had one other court appearance in person, and the case ended up resolving. Physically speaking, it was a smaller courtroom, but they were very diligent in terms of how they arranged the seats in the gallery to maintain social distancing, and masks were required. The case resolved efficiently without any need for testimony, other than the plea colloquy.

We started a trial on another case in Wayne, which has a large courtroom. The court managed the proceedings with a combination of social distancing, mask wearing, and Plexiglas shields between the various parties. One of the issues that arose was whether or not the witness should wear a mask while giving testimony. I had moved for the court to have the witness remove the mask because it is important to be able to see all of the facial expressions in order to assess credibility. The judge agreed that he would be better able to assess credibility without the mask. The witness stand was at least 20 feet from the counsel table and 20 feet from the judge’s bench, so the issue of whether or not to let the witness remove the mask was easily resolved.

This past week, we had a slightly different experience. We started with a testimonial hearing in a large courtroom that was laid out in such a way that the witness stand was a bit closer to the bench than in the other setting. The issue of whether to require the witness to wear a mask while giving testimony arose and the judge denied my motion that the witness remove the mask. I’ve asked him to recognize that it’s an ongoing objection through the proceedings so that I don’t have to object each time a witness is called. This may very well become an issue on appeal because mask wearing does impede the ability to assess the credibility of witnesses and deal with cross-examination. I have no idea how that’s going to come out, and it is an issue I want to research. The particular judge in this case is notorious for his inability to put the words “not” and “guilty” in the same sentence, so I expect it will become an issue for appeals. This case will be going on for at least two or three more sessions. Our first court session was September 23, and our next court appearance will be in December. There are going to be issues about public access. In fact, I may ask my client to bring some people with her to see if that becomes an issue.

In my entire career, which goes back to 1984, I’ve never had to deal with these issues. The closest thing to it happened in child sexual assault cases, where there was an attempt to insulate the primary witness from the defendant. With COVID-19, I don’t know to what extent the courts may be willing constitutionally to abridge the ability to read and confront the witness, so we’ll find out.

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