SEATTLE — On paper at least, King County Superior Court looked to be having a normal Tuesday. The old normal.
One jury considered what Alaska Airlines is owed as a new rail station rises on top of the airline’s headquarters while another weighed claims against asbestos makers brought by a retired drywall installer diagnosed with mesothelioma. Other jurors heard prosecutors level allegations of assault, pimping and car theft brought against people who’ve spent all of the pandemic jailed.
In other courtrooms, judges engaged in the minutiae that keeps the wheels of justice rolling, setting deadlines, taking pleas, tweaking parenting plans to align with the coming school year. Three divorcing couples made their cases to judges tasked with splitting them up. They are cases that are exceptional only to those closest to them, decisions that would’ve been entirely usual for any of America’s 30,000 or so trial courts before the coronavirus pandemic.
To return to something near normal, courts in Washington state have made extraordinary changes, nowhere more so than in the 53-judge superior court system serving Seattle and its suburbs.
Using $7 million in federal COVID-19 relief funding, court administrators rented out a convention center to make space for ad hoc courtrooms and stood up video conferencing systems allowing a wide range of court activities to be done remotely. Attorneys and their clients now call into most hearings, while most residents reporting for jury duty do so by phone.
The pandemic has injected technology into court systems that hadn’t prioritized modernization. The forced reliance on remote testimony has removed, or at least lowered, hurdles that prevent some Americans from accessing the justice system.
As would happen across the U.S. as the virus spread, courts were broadly shuttered when coronavirus broke out in the Seattle area in early March.
“We really didn’t know what the road ahead looked like,” says Jim Rogers, presiding judge for King County Superior Court. “We did a lot of stumbling, and we’re still doing a lot of stumbling.”
“But I think that what we did right, is we committed to hearing trials as quickly as we could, as long as it was safe,” the judge says by phone from his Seattle courtroom.
While all involved in the Seattle effort acknowledge theirs is a work in progress, it stands in contrast to courts in other states that have been shuttered since the pandemic began. At least 14 states haven’t held a jury trial since mid-March; those waiting in jail for their day in court have been told to sit tight or plead guilty. When COVID-19 cases spiked, most courts simply shut down, says Rita Reynolds, chief technology officer for the National Association of Counties. Most court systems weren’t equipped to operate using video; those that were had been making limited use of it, usually for initial appearances in criminal cases.
Six months on, Reynolds says, nearly all courts are using video technology to continue their work. In New Jersey and Virginia, grand juries were meeting remotely to decide whether warrants could be issues or charges filed in criminal cases. Judges in Texas began conducting bench trials over Zoom, hearing a handful of civil and criminal claims, while one court in Michigan convened a jury in a high school gym.
As Reynolds describes it, the forced shift to virtual has been an awakening.
“It was like, ‘Hey, we can do this. We can keep the court system functioning and people don’t have to leave their homes or the jail,'” Reynolds says.
“The amount of time savings and cost savings that the counties are realizing is phenomenal,” she says.
Across the country, restarting jury trials has proved the toughest challenge for state courts. Eight states and the District of Columbia have postponed them indefinitely, according to statistics kept by the National Center for State Courts that show most states prohibited juries for more than 100 days.
For jailed Americans, the pressure is acute.
“We have clients just sitting in jail, waiting for trial,” says Gordon Hill, deputy director of King County’s Department of Public Defense. “What’s so important to remember is that people charged with a crime are presumed innocent and have no less right to be free than you or I or anybody else.”
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Hill credited King County jail staff with ensuring defense attorneys can meet with their clients. The jail leaders, he says, have also been strong partners in the effort to move more accused people out of custody. The county has imposed new restrictions on police that keep low-level arrestees out of jail.
In reducing jail populations, King County is an outlier. Initial efforts to clear county jails by releasing low-risk detainees and those at highest risk of death if they are infected appear sputtered out without deep cuts to jail populations, says Andrea Woods, staff attorney with the American Civil Liberties Union’s Criminal Law Reform Project.
With limited success so far, the ACLU and others have sued jail operators around the U.S. demanding jails either release or better protect incarcerated people. Woods has been deeply involved in a lawsuit against the jail incarcerating 1,800 men in Memphis, Tennessee, where jury trials have been postponed for an unlimited time.
An unknown number of people unable to post bail during the pandemic have already served more time in jail than they would likely be sentenced to if convicted, had judgment not been delayed by the coronavirus.
Civil lawsuits, too, have been hamstrung by most courts’ inability to convene a jury.
John Allison, a plaintiff’s attorney based in Spokane, Washington, whose clients include survivors of church sexual abuse, describes the threat of trial as crucial. Absent that risk, negotiations drag and further slow justice that in some cases was already long delayed.
Most civil claims are settled well before they are put to a jury. But, Allison says, the prospect of facing a jury injects a “greater sense of reality” into negotiations.
“We need (juries) because otherwise the insurance companies and corporate defendants ultimately have power to control the flow of justice,” said Allison, who serves as president of the Washington State Association for Justice, a plaintiffs attorney advocacy group. “We can’t have that. We have to have the independent threat of a jury trial.”
Facing a conundrum that continues to baffle their counterparts, Washington state court managers looked to space and tech for solutions.
The state Supreme Court began hearing arguments remotely in April. Its first case was an emergency action brought by Washington prisoners asking to either be freed from prison or protected from the coronavirus — and in June issued guidelines that cleared the way for trials to resume. As they have, the courts look a lot different than those familiar to court watchers and ” Law & Order” fans.
In and around Seattle, courtrooms were rearranged. Jurors were moved into 14 chairs in the gallery usually occupied by rows of public seating. The attorneys shifted into raised jury boxes. Jurors deliberate in emptied courtrooms rather than the tight, hot conference rooms formerly used for that purpose. Everyone dons a mask except the witness, who wears a plastic face shield.
Before the courts restarted in earnest, experts with the University of Washington and public health agencies helped draw up a safety plan for King County’s courts. Restarting criminal trials was the priority.
“There’s 1,300 people in jail, and most of those people are waiting for trial,” Rogers says. “They deserve to have their matter heard.”
As elsewhere in the country, defense attorneys have had difficulty getting time with incarcerated clients in part because the county jails lack video conferencing equipment sufficient to the demand.
Woods, the ACLU civil rights attorney, says she’s been struck by the differences in her experience accessing the courts and those of her jailed clients. While she routinely “appears” in federal court by video, men and women imprisoned in Texas, Tennessee and elsewhere can’t get a reasonably secure video link to speak with an attorney. In Memphis, they’ve struggled to just get soap.
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For attorneys serving incarcerated people in criminal or civil matters, forming the bond necessary to represent their clients effectively is incredibly challenging when meetings are rushed, sporadic and telephonic, Woods said. Most incarcerated people are in crisis and meeting their attorney for the first time.
“We put so much on that moment, and the pandemic just kind of poured kerosene on it,” Woods says.
Social-distancing requirements doubled the amount of space needed to accommodate King County’s courts. To find more room, the county rented space at Meydenbauer Center, a 50,000-square-foot conference hall in the Seattle suburb of Bellevue. Courtrooms created there host civil trials delayed by the pandemic. Judges in rural parts of the state are preparing to hold court on fairgrounds and in closed movie theaters.
Technology has proven expensive — Rogers said more than half the $7 million allocated so far to reopening Seattle-area courts has gone to video conferencing equipment — but effective. Jury duty may never be the same.
Rather than spending days at the courthouse waiting to see if they’ll be called to serve on a jury, residents called for jury duty are questioned by video on their cell phones, Rogers says. The 5% or so of would-be jurors without cell service come to the courthouses, which are largely empty.
Most preliminary hearings are handled remotely, by phone or video call. Rogers said there have been plenty of technological stumbles, but that the system works reasonably well.
While CARES Act money has carried King County through so far, Rogers says he is concerned about how cash-strapped jurisdictions will cover the increased costs once that funding disappears on Jan. 1.
Whether they’re determining an accused person’s fate, deciding who will parent a child or fixing a dollar amount to a wrong done, courts, in Rogers’ view, can’t sit idle through the pandemic.
“We don’t know what the end of this virus looks like. We’re cautiously optimistic that it’ll be sometime in 2021, but we can’t just hit the ‘pause’ button,” the judge says. “We’ve got to get matters finished.”
Hill, the public defender, says he believes new restrictions on who can be jailed should outlast the coronavirus. A day or two in jail, he says, can cost people jobs and homes, and badly disrupt families to no useful purpose.
“I hope that the pandemic is something in our rearview mirror very quickly, but I hope that we remember that we had way too many people in jail,” Hill says. “We don’t need to fill it back up.”
Levi Pulkkinen is a Seattle journalist whose work has appeared in The Guardian, High Country News, Next City and The San Francisco Chronicle, as well as SeattlePI, where he served as senior editor.