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Is the virtual courtroom the future of the justice system?

Video proceedings have increased court access but raised questions of rights amid case backlog

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Rich Mauro, Salt Lake Legal Defender Association’s executive director, poses for a portrait at his office in Salt Lake City.

Rich Mauro, Salt Lake Legal Defender Association’s executive director, poses for a portrait at his office in Salt Lake City on Thursday, April 28, 2022. The justice system in Utah is straining under the weight of an immense backlog of criminal cases, especially serious felony cases, leaving many defendants to languish in custody as additional filings continue to accumulate.

Kristin Murphy, Deseret News

The justice system in Utah is straining under the weight of an immense backlog of criminal cases, especially serious felony cases, leaving many defendants to languish in custody as additional filings continue to accumulate.

The buildup began in 2020 after the Utah Supreme Court ordered the shutdown of in-person proceedings in response to the coronavirus, which left attorneys and judges to hash out settlements through a remote, Webex court process.

While COVID-19 has curtailed all parts of the justice system, the setbacks are on dramatic display at the office of the Legal Defenders Association, which helps represent indigent defendants.

Since 2019, open felony cases have increased at the Legal Defenders Association by 20% while open misdemeanors have increased by 16%. The result is a hulking 3,400 additional cases stacked on the desks of public defenders who contended with heavy workloads even before the pandemic, according to a report from Salt Lake County Human Services.

“Our lawyers are trying to work on new cases while also carving out time to resolve previous cases. And all our serious (felony) cases have stacked really deep,” said Rich Mauro, executive director of the Salt Lake Legal Defenders Association. “And the real problem is that this backlog involves people that remain in jail waiting for their trials.”

Salt Lake County, which is required by state and federal law to provide representation to indigent defendants and who contracts with the Legal Defenders Association for services, has responded with a proposal backed by funding from the American Rescue Plan Act to provide the Legal Defenders Association with three new criminal defense attorneys, a legal assistant, investigator, social worker and a data analyst.

Yet even as Mauro is hopeful the additional resources will help the Legal Defenders Association whittle down the backlog, a vital component of justice remains at large: face-to-face trials, whose limited availability has raised concerns about fairness.

“The concern we’ve been worried about is whether a video uplink doesn’t make people more indifferent to sentences. Because if they can’t see somebody face to face maybe it makes them a little less human,” Mauro said.

Mauro says the lack of face-to-face proceedings also undermines the fluidity of give-and-take between stakeholders, which is key to efficient resolutions. Webex trials can occur with a client, judge, prosecutor and public defender all residing in different locations. In these situations even minor disagreements can be the difference between settling and pushing a case.

“You don’t have that kind of organic ability to sit down face to face with somebody and really talk about a possible resolution. When you’re face to face, often you can do it in one hearing. Instead it might take three hearings because if there’s something that the client doesn’t understand, or even a minor condition you disagree about, the judge just kicks it over to the next date,” Mauro said. “There’s a real need to get back into court for that reason.”

The ‘plus and minus’ of a virtual courtroom

Another concern is equity. 

Mauro says indigent clients may be at a disadvantage in remote hearing processes. Some are homeless, which increases the likelihood they will be detained pretrial. Some may lack access to sophisticated web-based technology. And many cannot post bail, and are therefore subject to lengthy jail stays awaiting trial — made harder by the recurrent suspension of in-person visitations

“A lot of times they’re doing court on the phone. But they don’t always have the bandwidth to have a good hearing, so sometimes judges become impatient with our indigent clients,” said Mauro. “And then we’ve spent countless amounts of time trying to track our clients down, whereas before we’d just see them at the courthouse. It’s really time consuming and has increased the workload for our lawyers.”

Salt Lake County District Attorney Sim Gill, whose office is responsible for the prosecution of criminal cases, agrees with Mauro that the current Webex system is imperfect. However, Gill points out that new courtroom technologies can also improve equity. 

“People who have cars have greater flexibility and ability to get to a courthouse compared to (indigent clients) who do not have cars. In that case transportation is a limitation, and this technology bridges that gap,” said Gill. “And remember, remote access saved us during COVID. It allowed us to continue to engage in the process and kept the court doors open even though it was slowed down. It’s a plus and minus, not a purely binary choice.”

Rural vs. urban

The use of remote technology has also highlighted key differences between urban and rural courts.

Judge Don Torgerson, who serves in the 7th District Court serving communities in the southeast of the state, says the Webex process is especially beneficial for rural constituencies, along with the area’s many outside visitors.

“Someone who gets in trouble in Grand County but might be from California or from Salt Lake doesn’t have to travel to attend court the way they used to. And as a result end up spending less resources to make their court appearances,” Torgerson said.

Torgerson’s district encompasses 22% of the state’s land mass but only 5% of its population, which means in addition to higher travel costs, the comparatively smaller population size of rural districts leaves defendants with fewer choices when selecting counsel. Remote court expands the options for representation.

“We don’t have a lot of attorneys in some of the counties in my district, Emery County and San Juan County in particular. So overall (defendants) are able to hire counsel of their choosing and that benefits them significantly,” Torgerson said.

Gill says the introduction of remote technologies are producing efficiency in some functions, particularly as it relates to case screening and pretrial functions, along with internal operations. Though he says purely digital trial systems will never suffice no matter how efficient they become.

“There is a right for confrontation, to be in the same physical space where you’re able to look your accuser in the eye; and for a jury to be able to read the nonverbal body cues that are critical to the idea of veracity, because whether you believe somebody or not is a very subtle art indeed,” Gill said. 

However, Torgerson says assessing veracity may actually be easier with remote court.

“I’m able to see someone’s reactions and their facial expressions and how they respond to things typically better in a remote courtroom than I am in person. Because in person the witness chair doesn’t face me, it faces the jury box or the gallery,” he said.

“With Webex I’m able to put them on the screen make them as big as I need, and the camera is closer to them than I would be in the courtroom,” he said, adding that remote access has been shown to make hesitant witnesses and victims more comfortable giving testimony.

Torgerson, whose district sees a significantly smaller volume of cases than those serving Wasatch Front areas, has been able to address his backlog through predominantly virtual proceedings. He says remote court will be a permanent component of the justice system moving forward, even as he admits Webex raises questions of about the constitutional right to due process.

“We’ve never faced the question of due process because virtual courts just didn’t exist. So these cases are going to start to bubble up, as a judge I’ll have to grapple with whether breathing the same air as each other, and being in the same room as each other is due process,” he said.

Lawyer shortage

As COVID-19 concerns have cooled, the Utah Supreme Court in April issued an administrative order that provides for judicial discretion in setting in-person proceedings within a framework of safety guidelines. 

Although as the system moves toward a new normal, prosecutors and public defenders find themselves up against another battle: the rocketing demand for lawyers, which is driving the cost of litigation skyward.

A combination of poor work/life balance, high-stress environments and competition from other sectors is causing many in the law profession to take a leave, shown in a recent study from the International Bar Association. Nor is the current lawyer shortage in the U.S. likely to improve soon considering the yearslong trend in declining first-yearlaw students

And now the Webex proceedings appear to be magnifying industry stress in the state’s high volume courts, which have to schedule a higher number of jury calendar dates in an attempt to chip away at the backlog, even as they resolve a smaller percentage of them, according to Rich Mauro. This means that even as attorneys understand a case may be kicked to a later date, they must be prepared to proceed regardless. 

“In the old days (the court) would maybe set three or four matters, then you settled two or three, one went (before jury) and one was continued,” said Gill. “Now they’re setting eight or 10. That creates a systemic pressure point for us as prosecutors and for legal defenders. We’re all trying to do as best as we can, but it comes with a collateral cost to us in terms of the stress.”

On top of that, the labor market for lawyers in Utah has tightened further as a result of growth in other industries — like tech, e-commerce, construction and real estate — which are heavily dependent on legal resources and commonly offer more attractive salaries than those at public sector entities like the offices of the district attorney and the legal defenders.

Additionally, recent Utah laws have opened up a legal services “sandbox” where venture capital has begun to flow and help push salaries higher still.

“I’m about 20 attorneys short right now. And last year there was an almost 8,000 attorney shortage nationally,” said Gill. “What I have is an interesting conundrum: I’ve got a backlog of cases and a (labor) market that is running away in this profession.”

Intangibles

Both Gill and Mauro concede that salaries tendered by other firms can dwarf what they’re able to provide with their respective budgets at the district attorney’s and legal defenders’ offices. Still, the men share a belief that if their positions are not market equivalent they are nonetheless market competitive, due to a handsome list of intangibles — including unique opportunities for professional development, a variety of legal issue exposure and a sense of purpose in the work.

“We can’t pay what the big law firms pay, but we hope that it’s a different work environment and a different experience. Our lawyers get to handle challenging cases, go to trial and have independence, but also the support of a big office with strong divisions. So for a lot of folk it’s a gratifying experience,” said Mauro.

Gill estimates that Utah’s backlog will take a number of years to reign in, and it will happen alongside a broader systemic overhaul toward a hybrid court system. Public servants have no illusions about the uphill fight, but they are optimistic that Utah’s judicial system will come out stronger in the end.

For Gill, the moment is best understood as a metaphor.

“It’s the passing of a kidney stone. It’s not without pain and effort and discomfort. But we will get through it,” Gill said.