'Adjusting the way we do justice': Northland courts address backlog, ponder future of technology
For nearly six months, the vast majority of hearings in the region have been conducted via Zoom videoconferencing. As the courts resume more in-person proceedings, it remains to be seen whether the system will continue to embrace online alternatives.
In recent months, the public defender's office in Northeastern Minnesota has been handling an average of 1,100 online hearings each week.
Attorneys are tasked with finding ways to provide legal consultation, exchange critical paperwork and effectively argue before a judge on behalf of clients they've never even met in person, all in hopes of keeping the wheels of justice moving amid a pandemic that has largely shuttered courthouses.
"It's been exhausting for my colleagues," Dan Lew, chief public defender for the 6th Judicial District, said. "Nights and days all kind of run together. ... It's work that takes a calling and is extremely challenging to begin with, and it then asks our colleagues to triple or quadruple their efforts."
For a system that is notoriously reluctant to embrace new technology, few could have predicted at the start of this year that the courts would be operating almost entirely through virtual means by the spring. But never in the past century has anything upended the system in quite the same way as COVID-19.
Judges, attorneys, criminal defendants and civil litigants alike have learned how to appear in court from their living rooms — bringing a certain level of convenience and accessibility for some, but struggles for others who face technological barriers or miss the sense of formality associated with entering a physical courthouse.
"Our system is built on being in the presence of our fellow human beings," said Nate Stumme, head of the Duluth criminal division of the St. Louis County Attorney's Office. "Being able to observe them, to listen to them in person, to see their mannerisms, to judge credibility. All of those things are super difficult to accomplish, effectively, remotely."
As courts seek to address a backlog of cases and resume more in-person proceedings, including jury trials, there is no shortage of debate on how a post-pandemic justice system ought to look.
"For so long, we've just had what we've had for hundreds of years: having to come into a courtroom and having to sit in front of a judge," Jessica Sterle, a family law attorney in Duluth, said. "This pandemic has triggered an immediate necessity for the court system to adopt technology and incorporate it into the process. I certainly hope the courts will continue to be open to that technology and making it as accessible to everyone as possible."
Cases continue as backlog builds
When COVID-19 was declared a pandemic in March and most of society began shutting down, the justice system was no exception. Courthouse doors were physically locked and, through much of April, it was strongly recommended that only time-sensitive hearings carry on, preferably remotely.
The Minnesota Judicial Branch contracted with Zoom to establish a secure platform to resume more day-to-day business by May. Generally, contested hearings that require testimony have been postponed over the past six months, along with jury trials, but attorneys say the virtual hearings have at least provided a mechanism to get cases back on track and toward resolution.
"We’ve transformed in a very quick period of time to find a balance that ensures the safety of our clients, colleagues and community," Lew said. "One thing that keeps occurring to me is that we've been able to dramatically reduce arrests, reduce jail population, and the world didn’t end. We've demonstrated that we can have a law enforcement and justice approach that doesn’t need to put so many people behind a wall and in cages."
An accelerated review of jail rosters led to dramatic decreases in inmate numbers at area holding facilities, with St. Louis County seeing a drop from 171 inmates at the start of the pandemic to just 91 at one point in late March. That was largely attributable to expanded access to community supervision for defendants deemed to be nonviolent and not a flight risk.
But the jail numbers have crept back up through the summer, with 158 people in custody of St. Louis County as of Wednesday, even as police have been advised to issue citations whenever possible and avoid arrests for misdemeanor warrants.
"Our (prosecution) numbers never went down," St. Louis County Attorney Mark Rubin said. "We're still at where we were last year. We're not seeing any change in the cases coming to our office, which is unfortunate."
For some victims, the pandemic has resulted in significant delays in their hopes of finding closure, Jerry Koneczny, the office's director of victim-witness services, said.
"Slowly but surely, we're kind of starting to find our new normal of going forward, but it's been very frustrating for victims," Koneczny said. "We've got some pretty significant cases that are hanging out there — homicides and serious assaults — and people have been waiting for a very long time to get an answer, to see justice done."
Addressing the backlog won't be easy, Rubin said, noting the nearly six-month suspension of trials eliminated much of the pressure to resolve cases.
"We've never had as many cases as we do now that are over a year old," Rubin said. "That's going to be really tough to work through."
Will courtrooms remain virtual?
Sterle has kept her West Duluth office closed, opting to continue handling all client meetings by video or phone. She said she hasn't experienced any major detriments in her ability to effectively communicate with clients and argue on behalf in virtual hearings and mediation sessions.
"One of the unintended consequences is that it's actually helped clients save money," she said. "You're not paying attorneys to drive to and from the courthouse. You're not paying the attorney to sit with you in the hallway, waiting for the judge to finish up his or her hearings before yours."
Hearings are actually starting on time — a rarity in courthouses — and they're shorter, Sterle said. With uncertain prospects about when trials may be scheduled in family law cases, she said the pandemic has also led to more pressure-filled mediations that result in settlements outside of court.
"It really made us brush off a lot of those old-fashioned lawyer skills," she said.
Rubin added that his office has seen an uptick in respondents appearing in court and resolving their child support cases.
"We're keeping track of all this," he said. "What works? What can we continue to do in the future?"
For the sake of his clients, Lew hopes most criminal cases will return to the courtroom post-pandemic. He said he's "more than willing to keep an open mind" but feels that the quality of proceedings can be shortchanged by going virtual.
The local public defender's office has long advocated to keep bail hearings in person, for instance, even as many other jurisdictions have established closed-circuit video systems to cut costs by having defendants appear from jail. Studies have shown that defendants in remote hearings tend to receive higher bail figures .
"We have extraordinary people finding solutions right now, but do we really want to commit to this as a long-term life?" Lew asked. "I can't imagine it being a life any of us want to actively promote in the long haul, to reduce human contact."
For crime victims, a remote option can be more convenient, as well as reducing anxiety that can be associated with going to the courthouse, Koneczny said.
It's also made matters easier for some participants in treatment courts that address issues such as chemical dependency and mental health. Some of those defendants are required to make weekly appearances.
For people in rural areas of expansive counties like St. Louis and Lake, the nearest courthouse may be an hour and a half away, and having personal transportation is a must. Not so with a virtual hearing — assuming reliable internet service is available — said Jessica Fralich, a St. Louis County prosecutor who recently returned to Duluth after a stint leading the Iron Range division.
"Providing greater access and giving people the opportunity to miss fewer days of work has provided a lot of extra opportunities, especially for people in specialty courts or for crime victims, who maybe wouldn't have made it because the drive is prohibitive," she said. "We've found that we can get more participation and better engagement by adjusting the way we do justice."
On the other hand, Stumme said, behavior can be completely different in one's living room compared to a real courtroom. From his home, he said he's heard his wife, a judge in Carlton County, admonish more than one defendant to put on a shirt during a virtual hearing.
"The words on the courthouse talk about reverence for the law," he said. "That is completely lost when we have court appearances on Zoom."
Navigating a return to the courtroom
The six courthouses of the 6th District were approved to resume jury trials as of late last month . Courtrooms have been significantly modified and rearranged to allow for physical distancing, masks are required and hand sanitizer is abundant.
In Duluth, a fourth-floor courtroom is almost unrecognizable. The back of the courtroom, where benches usually offer public seating, now contains spaced-out chairs for jurors. The tables used by attorneys and clients have been moved to the standard jury box. The witness stand has been relocated across the courtroom. A large white sheet hangs over the judge's bench to provide a makeshift screen for exhibits to be projected.
For spectators — victims, the defendant's family and other members of the public — the reduced capacity will mean viewing a video feed, either from another courtroom or online.
Hannah Forti served as the defense attorney in the first pandemic-era trial to be held in the district, winning an acquittal for her client in a vehicle theft case at the Hibbing courthouse.
"The court system had put together pretty impressive precautions," she said. "Of all the public places I've been since the start of the pandemic, I felt that that was one of the safest."
Forti said the jury selection process was the most challenging aspect, taking twice as long as usual, with potential panelists split into morning and afternoon groups of 15 each. Those struck from the panel were called and notified; the remainder show up to hear the case the next day.
But even that was different, Forti said. For instance, the masked jurors were seated behind the attorneys in that courtroom, making it difficult to judge expressions.
"There are certainly some limitations that are caused by the precautions, so you'll have to judge it on a case-by-case basis as to whether or not you're comfortable proceeding," she said. "We have a pretty significant backlog in the criminal system, so it's good to at least get these cases moving forward, but one of the challenges will be determining which cases aren't really appropriate for trial during a pandemic."
Judges have used a matrix to determine a priority list for trials, looking at criteria such as custody status, speeding trial demands and the severity of alleged offenses to establish a schedule through the end of the year.
Stumme said he hasn't worried much about his own health and safety as he prepares to reenter the courtroom.
"As a trial attorney, you get focused on what you need to do to get a case ready for a jury," he said. "I know that the setup of the COVID trial courtroom. I've seen that process, and I'm mostly pretty comfortable that we can do it in a safe way for everyone present, so I'm going to do my best to put that out of my mind and focus on the cases."
Since each courthouse has had to establish unique precautions, new case law is being established with every case that proceeds under pandemic conditions, Fralich noted.
" We don't know how some of these processes we put in place are going to hold up to constitutional muster," she said. "We're operating under a developing framework for holding trials."