Trial Lawyer Brandon Minde Op-Ed on NJ.com discusses Virtual Court Proceedings
Brandon D. Minde, a trial partner and Chair of the NJSBA Criminal Law Section, recently authored an Op-Ed that appeared on NJ.com., titled “Will we ever return to the days of a packed courthouse?” The article explores how New Jersey trial attorneys have been adapting to the virtual court proceedings which have been taking place in New Jersey due to the coronavirus.
Justice Thurgood Marshall wrote, “Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” Of course, mere access to Zoom video does not itself assure ideal “access to the courthouse doors,” but in COVID-19 times, it’s a good start and will likely remain as a part of future courthouse operations in New Jersey even after New Jersey fully recovers from the effects of COVID-19 and resumes more “normal” operations. Mr. Minde is the head of Dughi, Hewit & Domalewski, P.C.’s criminal law department, is a former Essex County Assistant Prosecutor, and is certified by the Supreme Court of New Jersey as a Criminal Trial Attorney.
Will we ever return to the days of a packed courthouse?
Posted Jun 01, 2020 on NJ.com
By Brandon D. Minde
I appeared before an Essex County judge recently to argue a motion to dismiss. I am an attorney. I do this all the time. But lately, I have been doing so from home, in front of my computer, dark suit and all, at least from the waist up.
The same afternoon I participated in a plea agreement before a Somerset County judge. Same home, same computer, just a different case and county. I did not take a law school course in virtual justice. No lawyer did. But we are learning fast. The pandemic has forced virtual justice upon us. And rather than be scared, we should embrace it.
“Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” Justice Thurgood Marshall wrote those words in 1985 when he, of course, assumed the actual courthouse doors would always physically open. But he could not have foreseen what we now face: COVID-19, stay at home orders, social distancing.
“Access to the courthouse doors” has now taken on a new meaning.
Courthouses remain physically shut, but those of us who spend our days seeking to protect individuals’ rights and pursue justice continue our work in new, innovative ways.
Virtual arraignments to read formal criminal charges. Check.
Virtual case management conferences to discuss discovery issues or plea negotiations, and even virtual sentencings. Check, check and check.
We have learned some things along the way. Straightforward, less contentious proceedings have adjusted well to the virtual world. For example, a client’s first appearance where the pending charges are read, potential exposure advised, and bail conditions for release are given.
I am less confident about courtroom situations that seem made for, well, live courtroom TV. If I virtually confront an accuser who has given conflicting stories, or surprises an expert witness with old social media posts showing her bias, will my impact on the jury be the same as if they were sitting a few feet away? I doubt it.
Our judicial system is steeped in history and tradition. (Think of the black robes.) It is slow to change. In law school I learned to ask a judge, “permission to roam the well.” That’s court speak for, “may I please get up and walk in front of you?”
A lawyer is someone who solves problems. And COVID-19 presents a big one.
We need technology to plug the gap where history and tradition fall short because what’s the alternative? To shut down the legal system for months? For years? For every new outbreak? In a country that requires “access to the courthouse doors” to ensure justice and liberty, that would be unthinkable.
During one recent virtual hearing, I wanted to discuss a matter privately with the judge and prosecutor. Before, I would request that we meet in the judge’s chambers. Now, I requested we move to the judge’s virtual chambers (read: Zoom video breakout room). It all worked smoothly … and until recently I, and many of my legal colleagues, had never even heard of Zoom.
Many more of us will soon be touched by these innovations. New Jersey is starting a pilot program for virtual grand juries. People with traffic tickets are getting notices for virtual municipal court hearings. There are certainly differing views on virtual court appearances and virtual grand juries, but I am proud the legal system is not standing still in the face of COVID-19.
For the moment, virtual proceedings are limited and most substantive ones require consent from all the parties involved. But things are changing fast as we simply do not know when we will return to the days of hundreds of people crowding into courthouses. Those who have had jury duty remember the crowded jury rooms, courtrooms, cafeterias, hallways and elevators. Post-pandemic what will be the reaction the first time someone sneezes in a jury box?
One day soon, you may receive a jury notice form instructing you on which day and at what time to login to Zoom for jury duty from your dining room table. Of course, mere access to Zoom video does not itself assure ideal “access to the courthouse doors,” but in these troubled times, it is a good start.
Brandon Minde is an attorney at Dughi, Hewit & Domalewski, P.C, in Cranford and is certified by the Supreme Court of New Jersey as a criminal trial attorney.
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