With some dropped connections, a few crying babies and the occasional hot mic, the historically camera-shy Colorado courts took a giant, forced leap into new technology this summer as safety concerns about the novel coronavirus pushed court proceedings into the virtual world.
Judges, attorneys, witnesses, defendants and members of the public are logging into virtual courtrooms across the state, appearing via live online video streams, or calling in on phones from their cars, homes — or wherever they happen to be.
“Within a couple of months the courts totally changed how they practice,” said Tom Isler, a Denver civil litigation attorney. “And that ability to adapt is to their credit and interesting to see. These changes can happen. There just needs to be the will behind it.”
The shift to virtual proceedings happened fast, and it’s come with a learning curve, including hiccups with technology, breaches of decorum and unprecedented legal situations. Judges have been muted when they should have been unmuted, attorney conversations meant to be private have been picked up and broadcast, cameras have recorded at odd angles and participants have tuned in from loud places or in informal settings.
But attorneys say the virtual proceedings also have improved the court system’s efficiency, reduced costs for clients and increased transparency in Colorado’s usually slow-moving and rigidly formal judicial system. Some hope to see virtual proceedings continue even after the end of the coronavirus pandemic, particularly for short appearances, continuances or minor events.
“From my clients’ perspective, it is a huge time saver,” said Janene McCabe, a defense attorney and secretary of the Colorado Criminal Defense Bar. “They don’t have to drive to court, they don’t have to wait in line for security, and they don’t have to wait for their case to be called. For those types of events it has been exceptionally useful.”
Appearing virtually allows McCabe and other attorneys to visit courtrooms across the state without leaving their offices — saving the attorneys from long drives or rushed dashes across town and saving clients from paying for their counsel’s time in the car.
“It was not uncommon for me to drive to Greeley for a five minute court appearance,” said Eric Zale, a Boulder criminal defense attorney.
But it’s difficult to hear testimony and cross-examine witnesses through a video chat, and attorneys can’t have private conversations with their clients in a virtual courtroom, he said, particularly if they’re in jail.
“That part I find really hard,” he said.
The virtual courtrooms also have seen a variety of interruptions, some because of technical issues and others because of users.
During one contentious hearing in Jefferson County over Bandimere Speedway, a large group of observers exchanged messages in the courtroom’s group chat, criticizing the judge and the proceedings despite warnings from court staff that their messages would be included in the official record. Crying babies and arguing couples could be heard from unmuted participants.
In another case, a client who was experiencing homelessness ran out of minutes on his pre-paid cell phone in the middle of a hearing and couldn’t get back on for more than an hour. Providing translation services virtually is challenging too.
“We’ve had children come into the middle of the testimony while someone is testifying under oath, asking daddy for this or that,” said 2nd Judicial District Chief Judge Michael Martinez. “A lot of those things take a little getting used to.”
In the middle of a murder trial in Denver District Court last week, someone identified as “Cynthia” logged into the courtroom and started talking.
“Those are not my favorite,” she said, broadcasting to the about 50 people in the virtual courtroom. “Are they your favorite? I might as well try everything. I like those. Where can I find this lady? Who is that? Oh my god. You would’ve had fun wouldn’t you…”
A member of courtroom staff cut in.
“Good morning, this is Courtroom 2A,” she said. “This is a friendly reminder to keep your phones, your computers, or whatever devices on mute or you will be expelled from the courtroom.”
Still, despite the problems, online proceedings have allowed jury trials to go forward — at a much reduced pace — in some courts across the state, many of which developed large backlogs when most jury trials were stopped altogether earlier this year.
Jefferson County District Court resumed felony jury trials last week, and one issue that arose immediately was how to enforce the sequestration of witnesses — that’s a requirement that witnesses in the case don’t watch the trial’s proceedings before they testify.
“The court is telling us we need to police it,” said attorney Douglas Richards, who handled one of the two felony trials that started in Jefferson County last week. “Normally, someone walks into the courtroom, you hear the doors open, you turn around and see who is in there, and you can stop the testimony, or pass notes and say, ‘No, that’s not a witness.’ But here you can’t do that.”
Anyone can watch virtual proceedings online, and there’s no requirement that participants use their legal names to log in, making it difficult to stop a witness from violating a sequestration order.
“It’s very much the honor system,” Richards said.
There have been growing pains, said Jeffrey Pilkington, chief judge of the 1st Judicial District, which includes Jefferson County.
“We did not use a lot of technology before,” said “Most of our proceedings were in-person, very few were handled in a remote manner, and the ones that were were primarily telephonic. So we really went from very minimal use to doing as much as we can via Webex.”
Overall, the courts adapted well, stakeholders said, in large part because of widespread cooperation between attorneys, judges, law enforcement, prosecutors and other participants.
“It was so new and so strange when we first got going with it,” Martinez said. “It’s like kind of like getting a new gadget for Christmas, and you’re trying to figure out how to make it work and all the bells and whistles that come with it. Initially that excitement has worn off a little bit, the shine is off the system a bit, and we’re starting to focus more on functionality. And for the most part it’s pretty strong. We’re getting done a considerable amount of work we otherwise would not be able to do here in the courts.”
Gail Pickarts, court executive for the 1st Judicial District, said in-person interactions are still key to much of what the courts do.
“Historically, the vast majority of what we do should be done in person,” she said. “But I think we have learned that, ‘Yeah, you know what, there is some stuff we can do with technology, and we don’t necessarily have to have everybody come out to the courthouse.’ Once this is over, I think we’ll go back to some semblance of normality, but I think overall it will have changed our business model at least a little bit.”
Pilkington too, sees a future in which some limited court business is done virtually.
“We have learned a lot from this experience,” he said. “I believe that we will continue to use Webex and remote audio visual to conduct hearings.”
Some continuation of virtual proceedings, or even just an online video livestream of courtrooms in which people can log in and watch proceedings but not interact, would increase transparency in Colorado courts, Isler said.
“This experience is showing the judiciary and judges across the country that you can have cameras in the courtroom,” he said, “and have the public watching from their computers, and the wheels of justice will keep turning.”
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