GRAND RAPIDS, Mich. (WOOD) — The fight since the start of the COVID-19 pandemic has been “to return to normal.” Now, after two years, Michigan’s Supreme Court is working to define normal and decide whether some of the changes made during the pandemic are worth keeping in place.

A court order filed in July 2021 encouraged state courts to use virtual methods for court processes to the “greatest extent possible.” But with COVID-19 cases now at a manageable level and hospitalization rates down, should the order be revisited?

State Rep. David LaGrand, D-Grand Rapids, says not necessarily.

“If you have remote hearings, more people can get access. It’s easier for people to get access. You can save time and money. A real barrier to our legal system has always been cost,” LaGrand told News 8.

Before serving in the Michigan House of Representatives, LaGrand worked as a lawyer and served eight years as an assistant prosecutor in Kent County. Now, he’s the minority vice chair on the House Judiciary Committee.

“There are lots of ways where people with the most money wins in our justice system. And that’s been a problem since we started having a justice system and it’s something I’m always concerned about,” LaGrand said. “I think that’s probably the Supreme Court’s primary concern here is good access to justice. And I think they’re right.”

Kalamazoo County’s Prosecuting Attorney Jeff Getting agrees.

“Being able to bring a lawyer from Lansing or Grand Rapids or Detroit to Kalamazoo for a 15-minute meeting with a judge without them having to travel … that benefits everyone in the system: the defendants, the attorneys, the court. I think that’s a good thing,” Getting said.

According to a report by Bridge Michigan, a group of legal aid attorneys from the metro Detroit area were able to help an additional 40% more clients in 2021 compared to 2018, largely because of time saved by holding virtual hearings. They can also help people avoid seemingly small obstacles, like finding child care or taking a day off work.  

CRIMINAL COURT PROTOCOL

The questions aren’t only about access and accommodations. There are constitutional concerns around holding certain hearings virtually.

The Sixth Amendment demands that each person facing criminal charges has, among other things, the right to a speedy and public trial, a right to an impartial jury and a right to confront the witnesses testifying against them. Holding a hearing virtually instead of in-person could open a trial up to a potential lawsuit.

LaGrand says Michigan courts aren’t holding virtual hearings during criminal jury trials and therefore avoid any realistic Sixth Amendment challenges, but other states have.

Massachusetts’ Supreme Judicial Court heard a case in 2021 about whether an evidence hearing was allowed to be held virtually. The court ruled that in this specific instance, the video conferencing technology created an acceptable courtroom setting but criticized the judge for denying the defendant’s appeal to delay the hearing until it could be held in person.

WEIGHING THE RISKS

Detractors also argue that while virtual hearings can save time and make the courts more accommodating, the decorum of the courtroom can get lost. Getting agrees.

“We have to be cautious in making change when we have the luxury of being cautious.”

Jeffrey Getting, prosecuting attorney for Kalamazoo County

“It’s impossible to recreate the atmosphere that goes along with a proceeding that happens in a courtroom with a judge in a robe, sitting on the bench and lawyers in suits, sitting at a council table,” Getting said. “You have people that are appearing in court while they’re drunk, appearing in court while they’re making their lunch. … The informality that exists in (a Zoom conversation), I think is a negative for court proceedings in general, especially in the criminal justice system where you’re relying on that.”

Tom Boyd, a former Ingham County judge and the current state court administrator, believes virtual hearings are effective and that any lost decorum can still be handled effectively in a cybersetting.

“When I was a kid, I loved the show ‘Night Court.’ I just thought that those writers were the smartest, funniest people in the world,” Boyd told News 8. “And when I became a district court judge, and as I was a lawyer and assistant attorney general prior to that, I realized that all you have to do is sit in courts to see that kind of stuff. The idea that courts in a brick-and-mortar environment don’t have crazy, ridiculous things that happen that are not consistent with the decorum of a courtroom, that’s just some pipe dream.”

Boyd says virtual hearings give judges different tools to handle people acting out during a hearing.

“In Zoom, it’s literally a mouse click to remove somebody from the room,” Boyd said. “I have had the unfortunate experience where an individual was suffering from a mental illness and had to be physically removed by law enforcement from the courtroom. You don’t have to do that on Zoom. You can let them calm down. I’ve talked to many judges who then either themselves or have staff check back in on them. They’re in what’s called the Zoom waiting room and they check back in with them and see if they are ready to come back into court.”

Decorum issues aside, Getting also noted that there is a purpose for the brick-and-mortar walls of a courtroom. In-person hearings can protect the proceedings from outside influences.

“When you have a witness that is testifying virtually, you don’t know who else is in there,” Getting mused. “You don’t know who’s on the other side of that camera telling them what to say, threatening them in order to cause them to say something that they wouldn’t otherwise say.”

He also voiced his concern over leaning too much on virtual hearings and what video footage could mean for witnesses.

“When you have a victim who is testifying about having been sexually assaulted, whose testimony is then recorded by somebody who is watching this on YouTube and then can be rebroadcast. I know you’re told that you can’t, but there’s no stopping it,” Getting said. “There’s no stopping someone putting that on Facebook or some other social media platform. There’s no stopping that from being shared by others.”

LaGrand says that some form of balance can be found. He believes it’s about finding the line between where virtual hearings can save time and expand access and when the limitations of a virtual hearing can impact a trial.

“Things like the court scheduling the next time we’re going to have a hearing. Do you need to drag lawyers into court for that? Almost certainly not. So that’s one place where technology can help us and it can save everybody money,” LaGrand said. “On the other hand, if you’re accusing me of stealing your wallet, I have a constitutional right to face my accuser. I have a constitutional right to have a jury look at you while you say that I stole your wallet, to assess whether they think you’re telling the truth or you’re being evasive, whether you’re making eye contact, all those subtle things.”

The Michigan Supreme Court hears opening arguments via zoom on May 6, 2020. (YouTube Michigan Supreme Court)

NOT A NEW INNOVATION

Though they took on a new level of use during the pandemic, virtual hearings are not new. Michigan courthouses have used them for years.

“When I became a judge in Ingham County in 2005, we were doing custody arraignments remotely from the jail,” Boyd said. “You know, that’s 17 years ago. And as a matter of fact, every courtroom in the state has had a big monitor and a camera for at least 10 years.”

Zoom’s stock seemingly grew overnight at the start of the pandemic, but Michigan’s courts were using Zoom before COVID-19.

“The State Supreme Court provided every trial court judge in Michigan a Zoom license in May of 2019, eight months before the pandemic,” Boyd told News 8. “So, the conversation about remote proceedings is not really about the pandemic. The pandemic put us in hyperdrive. But as it relates to remote proceedings, Michigan was way out in front of most states.”

Both LaGrand and Boyd believe the Michigan Supreme Court is close to putting out an order relaying what types of hearings can and cannot be held virtually. Boyd says it’s important to keep in mind that these orders can be amended quickly and easily.

“I think that probably the next rule is not too far off in the future, but I really want to emphasize the word next,” Boyd said. “Because as this technology becomes more ubiquitous and the digital divide shrinks and more and more people can readily access remote proceedings with a high-quality connection, we’ll need to revisit these rules over and over and over again. You’ve got to keep up with the times.”

While Getting has his reservations, he understands virtual hearings will continue to play a part in the legal process. He wants the Michigan Supreme Court to tread carefully.

“When you do something and it has a negative impact, you can’t undo that negative impact,” Getting said. “We have to be cautious in making change when we have the luxury of being cautious. Two years ago, when the COVID-19 pandemic hit, we didn’t have the luxury of making slow change. We had to do something and do it quick. And so we went to these virtual processes and then we recognized where those limits should be. Now we have the luxury of making change at a more reasonable pace.”