OPINION by STEW JENKINS
How is the battle between the coronavirus and California’s courts going? So far, the virus is winning; but there is hope for a counterattack by the Goddess of Justice in June or July.
If we are to survive as Americans, we must not only vanquish the coronavirus, but must do so while holding elections, have courts do justice, maintaining farms and groceries to feed us, and empowering hospitals able to treat the sick. And each of us must take personal responsibility to avoid spreading the virus while supporting those institutions that make us Americans.
Like all with any sense of responsibility dear reader, everything in your life has changed. You wear gloves to buy groceries and gas; and wash hands and surfaces in your car, at home, or at work more times each day than you ever imagined.
Many of you are working from home, or your workplace has changed to prevent unnecessary personal contact, or you’ve been laid off until the epidemic sweeping the country dies out.
Frankly, even experienced nurses and doctors don’t exactly know what to do and are afraid. So, it should come as no surprise that judges and lawyers had no idea what local courts could safely do to continue dispensing justice after a public defender, who had appeared in the close confines of a busy San Luis Obispo courtroom, tested positive for the virus on March 13.
A notice from the court emailed late March 13 to some of the lawyers demonstrated the court’s understandable uncertainty about what to do. It simply said that “most or all” of the hearings set in the Family Law departments on Monday, March 16, would be continued. Not knowing if my client’s case would fall into the most or the all category, I naturally appeared that Monday, evidence in gloved hand, with antiseptic wipes, and a face mask ready to present my client’s case.
There are Constitutional mandates that courts, like law enforcement and election clerks, must fulfill.
The Sixth Amendment’s right to a speedy trial by a jury, and to “confront witnesses” for defendants in criminal cases, and the Seventh Amendment’s right to a jury trial in civil cases are examples. Just as are legal priorities, like protecting and supporting children that courts must enforce. Long delays in providing justice amount themselves to injustice.
And judges, of every stripe, want to continue holding court, taking evidence and doing justice; but you will understand how the virulent spread of the COVID-19 through touching the court’s chairs, tables, witness stand, benches and jury boxes – let alone folks coughing on each other – threw the whole court system into a state of panic.
First, the local courts issued a notice continuing all civil and family law cases through April 6. And lawyers were “encouraged” to appear by phone – at $75 charged to their clients. By March 23, the California Judicial Council declared that because of the emergency, courts would all but close for 60 days, authorizing county courts to explore electronic “remote” means of holding hearings and trials.
Subsequently, local judges sent out notices that hearings starting March 16 through mid-April were all continued to dates starting April 20, and that any hearings requiring significant testimony would end up going over into June 2020.
Remote technologies may substitute for some social purposes but are not capable of replacing centuries of refining the process of taking testimony.
Over 60 percent of human communication is through physical expression and body language. Gestures, wrinkling of the brow, darting of the eyes, and pursing of the lips say as much or more about a witness’s truthfulness or mendacity as the words themselves will convey to a judge or jury.
Could the courts mimic actions by cities and other branches of the government to ease the closure? Yes. Cities have stopped charging for parking and for use of the bus system. The Courts could take over and waive the cost of appearing by “court-call” telephone services.
Harnessing the spirit of patience and cleanliness that has swept the county could permit a few hearings, with testimony, on priority civil matters, allowing one case at a time to be heard in any courtroom; and allowing time between hearings for cleaning of surfaces.
And, I suppose the courts could hold seminars – with folks six feet apart – to learn the uses of systems like Zoom, or other free services for at least being able to see the face of those giving testimony or arguing in shorter hearings.
In the meantime, with the Virginia Governor and even “denial Donald” now issuing executive orders or advisories for folks to shelter at home and practice physical distancing through mid-June, expect the process of justice for most people to be effectively paralyzed till July; and to be slowed to a crawl as the judges work through backlogs of cases through the end of 2020.
Yes, the Goddess of Justice will win by surviving this national emergency, if all of us pledge our time, talents and patience to supporting her.
Stew Jenkins is a San Luis Obispo public interest lawyer who handles estate planning, real estate law and municipal law. In 2012, he successfully obtained an injunction against the City of San Luis Obispo to stop it criminalizing poor people as a means of driving them out of town. Jenkins supports rights to equal justice, to organize unions, to project labor agreements, to health care and to equal dignity.