by: Don Samuel
This morning, the Supreme Court unanimously – not even a concurring opinion – reversed the Bridgegate convictions. You will remember that in this case, the defendants shut down several lanes of traffic coming to the George Washington Bridge causing a massive traffic jam in Fort Lee, NJ, as “payback” for the mayor’s refusal to support Governor Christie.
As discussed in our earlier blog post, the problem was simple: bad behavior, even corrupt behavior, on the part of public officials is not a federal crime and it is not mail or wire fraud unless the officials take property or money. The Bridgegate defendants did not “take” the lanes of traffic. They did not take money. Rather, as Justice Kagan wrote, the conduct of the defendants resulted in “Drivers from Fort Lee [getting] two fewer lanes while drivers from nearby highways [got] two more. The [defendants] did so, according to all the Government’s evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza’s use—in effect, about which drivers had a “license” to use which lanes. And under Cleveland, that run-of-the-mine exercise of regulatory power cannot count as the taking of property.”
by: GUEST BLOGGER Nick Lotito
NOTE: In his efforts to cope with sheltering in place, Nick Lotito has been submitting daily posts on Facebook. He dubbed these The Corona Monologues and was at CM 43 at last count. These are some excerpts which he authorized this Blog to reprint:
Waffle Houses are opening today, perhaps a vestige of the same old idiocy. Shouldn't we stay scattered, not smothered? By waffling, we run the risk of being fried. This is not over easy.
This reminds me very little of another random thought with a tenuous link to technology. I still write serious letters for work, but letters, in general, have been run out of town by emails. What effect will this have in years to come. I still have a box of love letters somewhere. Don't think I ever received a love email, certainly don't have any saved. What about songs? "Get me a ticket on an airplane....my baby she wrote me an email." And how do you give an email to a postman, let alone mark it "special d?" Love emails in the sand? C'mon. Letters also had principles, they weren't phishy. Of course, these posts are essentially bulk emails, so never mind.
While I admire all healthcare workers for what they are currently doing, this reminds me of the medical practitioner who had sex with a patient. Part of his conscience said, "don't be so hard on yourself. You're not the first doctor who had sex with a patient." Another part said, "You sick bastard, you're a veterinarian."
About a week or so ago, Meredith and I spoke w/ Bobby Lee Cook who is sheltering at his beautiful Italian style villa on the brow of the mountain in Cloudland, Ga, a sort of high brow response to covid. Cook is 93 and a legend in criminal defense. The show Matlock was inspired by his incredibly successful law practice. He remarked that this is the first time in his life he has felt "completely helpless." Long ago, he lied about his age to enter the Navy, and he then fought in the Pacific theater. He has been a man of action, used to attacking problems head on. Many of us, particularly, lawyers, are problem solvers. You assess the problem and take action. This "problem" is unlike others that lend themselves to that approach. It is invisible, potentially deadly and no one has an actual answer. Cook's comment of helplessness is profound in its simplicity, and it stuck with me. It helps explain some of the protests to sheltering. I think people feel an innate need to do something, and it is frustrating, not that I agree with their actions.
Moving from this serious vein, I am not sure it explains all protests. For example, plastic surgeons are rebelling. They claim the emphasis on flattening the curve is ruining their practices. Consumer product companies are suffering. With social distancing, sales of deodorant, perfume, cologne and similar products are non-essential services. Deodorant manufacturers, in particular, are up in arms over this. Contact tracing is vigorously opposed by drug dealers. It does appear that for every action, there indeed is an equal and opposite reaction after all.
With the blurring of time, I failed to focus on yesterday being Jackie Robinson Day. During a regular season, on April 15, all players wear #42. Vin Scully tells a story about the Dodgers playing in Cincinnati. Jackie received a death threat that he would be shot on the field if he played. He received a number of these. In a pregame meeting, Gene Hermanski, an outfielder said, "I got it! We can all wear #42." Of course, the numbers wouldn't hide skin color, but the thought resonates today. We're all in this together. We all may have some limits on whom we would take a bullet for, but our natural tendency, with notable exceptions, i.e., you know who [Hocus Potus], is to look out for one another. I have always found friends of mine have generally liked other friends when they happen to meet. I take comfort in this, knowing friends make life so much richer. Imagine how much more oppressive this would be w/o FB and Zoom. Meanwhile, Jackie played that day in Cincinnati. Hermanski's 1947 idea eventually took shape years later w/ all players wearing #42. Jackie was one of my heroes. He did more to advance civil rights than many appreciate. Today, he would encourage others to stay home. He stole it 20 times.
by: Don Samuel
A response to Scott Key
Nobody would doubt that calendar calls are terribly inefficient. Traveling to Gwinnett County then waiting for an hour to announce, “Still waiting on Crime Lab report, please put on next calendar,” and then high-tailing it to Henry County to announce, “Need to schedule a discovery compliance hearing,” and then back to Fulton County – all of this is frustrating. And if a brief is due in the Court of Appeals, the quality of the brief will suffer because of the lost time driving on the downtown connector, to say nothing of standing in security lines and sitting in the jury box, watching other lawyers announce, “Still waiting on Crime Lab report.”
So, Scott Key is right: the courts need to learn from the covid-19 experience that we can be more efficient and accomplish a substantial amount of work in 5 minutes, rather than 5 hours (and possibly reduce the pollution that is caused by our endless driving, too).
But I will miss calendar calls. I will miss seeing friends, prosecutors and defense attorneys, the court’s staff, the deputies and bailiffs, the court reporters and the police officers that congregate at these cattle calls. I will miss sitting in the jury box and talking with another lawyer about her case (not just the missing crime lab report) and learning about a tactic she is using that would work in one of my cases, too. I will miss being able to talk to a younger lawyer who is about to announce, “Waiting for a Crime Lab report” and suggesting to him, “Why don’t you insist that the prosecution is the cause of the delay and should be barred from introducing the evidence?” and then watching the ensuing event unfold as the judge looks at the ADA disapprovingly and the evidence is then tossed.
I will miss sitting in the jury box and talking to a police officer about the case (not mine) that has led her to stumble into court after a ten-hour shift. We talk for a while and make fun of the ADA, the defense lawyer in her case, the judge – and a few months later, when I have a case in which that officer is the one who made the arrest, guess what? She remembers our ten minute “date” and we laugh again and then she tells me everything I need to know about my new case in which she is the adversary. She trusts me, I trust her. Never would have happened without that calendar call where we met.
I will miss seeing grumpy judges at the calendar calls. Though when the judge calls me up to the bench and asks, “How is your family?” or “I haven’t seen Ed in a while, how’s he doing?” I realize the judge is a human being who also needs the human interaction.
If I never have to appear on another Zoom call, it will be too soon. I want to see my colleagues and friends and adversaries. I want to stand in line and tell the same joke with the security guard at the metal detector I have been telling for five years. I want to eat some of the terrible food in the cafeteria and drink the coffee that is worse than the brew you get at the convenience store. I want to look around the courtroom when somebody’s phone starts ringing and remember the times it was my phone (“I am sure I turned it off; it must have turned itself back on when the ADA was pushing past me when we were standing in line outside” – that’s the lie I tell the judge). I want to hear a lawyer tell me a war story that is obviously embellished to the point of absurdity.
Ok, I agree that I am not looking forward to the downtown connector. You got me there.
by: GUEST BLOGGER SCOTT KEY
CoVid-19 and the Opportunity to Move Courts Forward
The CoVid 19 crisis, for all of the tragedy and devastation it has brought, has given the court system the push it needed to handle its business more efficiently. If the judges handle things well they will not go back fully to the ways of operating that existed before the virus. In what follows, I will discuss things that are working to make litigation less costly, the courts more available and open to the public, and more efficient through the use of video conferencing. But first a brief history discussion.
The Antiquated Circuit System
The court system as we know it was perfectly innovative for its time— the eighteen and nineteenth century. Before the automobile and even in the automobile era, the local courthouse served as a staging area for court. But the court was a traveling show. One need only read a biography of Lincoln to learn how much sense it made for the lawyers, judges, clerks, and bailiffs to travel throughout a region to hold court on tour. Such a system ensured that transportation costs did pose an insurmountable barrier to meaningful access to the courts. In an era of transportation challenges, the circuit system was the most efficient available model.
Even in an era when an automobile is inexpensive enough to be available to every household, the circuit system no doubt had its utility. However, in an era when video conferencing technology is available essentially for free to everyone with a phone, the circuit system for court is strikingly outdated. If we were building a court system from the ground up today, it likely would not require hundreds of people to be screened through a metal detector, the transportation of inmates to a holding area, and for hundreds of people to be packed into a crowded courtroom to do things like say, "not guilty has been entered,” or “we are asking that this matter be continued until the next trial calendar.”
And yet the way we do court is still based on a system that was in place for the level of technology available when Lincoln was practicing law. We no longer need our judges to ride a circuit.
Matters Easily Handled by Video Conference
When virtually the entire nation was put on quarantine, nearly any parent with school-aged children learned practically overnight to use applications such as Zoom. And so did the Courts. In April of 2020, the Georgia Supreme Court made history when it held two days of oral argument entirely by Zoom. The process went seamlessly. And a case could be made that the level of argument was made better for it. Oral argument has been described as an enlightened conversation among scholarly colleagues. Via a Zoom, with the lawyers and justices joining from their offices, the argument seemed somehow more intimate and less theatrical than in a courtroom with the performers on stage. The highest court in Georgia, in a matter of weeks, figured out how to conduct its important business by Zoom.
What we have learned is that non-evidentiary hearings are perfect for video conferencing. Video conferencing is also perfectly suited for routine housekeeping matters such as scheduling, announcements, and the enforcement of deadlines for things such as the entry of a plea. For civil matters, at least, even evidentiary matters could be handled over video.
Surely They Won’t Make us Go Back
Before the emergency order was put in place, court was set up in a way that seemed to maximize inconvenience. At the average arraignment and pretrial calendar, chaos reigns. Lawyers and parties sit around for hours and await their moment (sometimes that moment is less than a minute), to announce something to a judge or for a motion that takes maybe fifteen minutes to handle. And for all of that, an entire docket’s worth of people are brought into the room to wait their turn. The real fun begins when a lawyer has a conflict of several such matters in various counties to dispose of. The lawyer performs a mini-circuit, sometimes driving hundreds of miles in a day. And if the lawyer cannot make it to all scheduled appearances, then the client waits all day. The missed day of work, the childcare expense, the stress of being in court, amounts to no forward progress in the case. And for the client who is paying the lawyer by the hour, the meter is running for at least part of the lawyer’s drive to the courthouse.
A Matter of Incentives
It does not escape my notice that there is a perverse method to the madness. Much of the inconvenience is by design. Judges often pack in all the mandatory calendars in an effort to force matters to resolve by attrition. Miss enough work, pay enough for childcare, go through enough stress, and parties will be willing to do anything, including plead guilty to a crime, to avoid another court appearance. Such a system brings disproportionate weight upon the working poor, particularly the hourly wage earner.
However, if the goal behind all the coercion is to move the docket in an expeditious manner, then an efficient case management system that allows the attorneys and parties to appear without the need for travel and the expense of the full courthouse security apparatus, would achieve that goal better. And courts can still enter scheduling orders, mandating things such as deadlines for motions and for acceptance of a negotiated plea — using the power of the court to move cases forward toward resolution.
A system that uses video technology can produce other benefits as well, such as a more public court system. There has been a trend in moving courts to the inside of jails and prisons. Many criminal and habeas proceedings take place jailhouse courtrooms. Such places are either intimidating for the public to enter or have limited seating. And even the biggest courtroom can only hold so many people. And while trials are certainly broadcast live, in an era of video technology, the public could watch virtually any courtroom proceeding— not just the most salacious murder trials.
Some Modest Proposals
Arraignments, calendar calls, and non-evidentiary motions should, by default, be set up via video conferencing. Evidentiary proceedings in civil and criminal motions should be by video conferencing if all parties agree to handle matters that way. Jury trials remain in the category of proceedings that should be handled in person— particularly given current caselaw around the Confrontation Clause. Oral argument in appellate cases should be done by video conferencing upon order of the Court or upon agreement by the parties.
The recent Co-Vid Crisis has taken away the biggest impediment to a widespread change in how we do court— the objection that we’ve never done it that way before. When the crisis is finally in the rearview mirror, we should take away a more sensible and efficient manner of handling court. It is worth mentioning that such a system would greatly improve the quality of life for attorneys and make the delivery of legal services more affordable to the public. It would be nice to handle court from the office, from home, or from practically anywhere in the world, with less time driving and more time available to devote to the actual handling of cases.