When jury selection began for those charged with the murder of Ahmaud Arbury, only two reporters were allowed into the courtroom in the US state of Georgia, who could serve as the eyes and ears of the public.
The pandemic’s restrictions also prevented reporters and the public from entering the courtroom during the trial of music star R. Kelly for trafficking in persons for the purpose of sexual exploitation.
And in an Ohio courtroom, a federal judge sent the press to a crowded room to listen to an audio recording of the trial of a Chinese citizen accused of attempting to steal trade secrets from American companies.
A year and a half after the start of the coronavirus pandemic, courts in the United States are still struggling to find a balance between public health concerns and the constitutional rights of the accused and the public to trial in public. There is no standard solution. Some courts are still fully virtualized. The rest returned in person. And many only allow limited public access.
“It’s a fundamental constitutional right for the public to have open courts and be able to see what’s happening in real time in the courtroom,” said David Snyder, executive director of the First Amendment Coalition, which pushed California courts to improve public access during pandemics.
Limited space due to COVID-19 has forced US judges to rule out or restrict public and media presence in trials.
During Kelly’s trial, which culminated in his conviction last month, a New York federal judge barred members of the press and the public from entering the courtroom as juries sat six feet apart in a gallery commonly used by observers. Viewers could watch live video in the crowded courtroom, but the jury was not visible, and there were only limited images of the defendant, witnesses and physical evidence. At some point, the prosecutor’s office played a tape that the jury listened to with headphones, but without sound to the press and the public.
The judge rejected a request from media groups, including the Associated Press, to allow reporters to join the courtroom for most of the trial, leaving six reporters only after the verdict was announced.
A similar scenario played out last week in Ohio, where a federal judge cited the pandemic while keeping the public out of the courtroom in the case of Yanjun Xu, a Chinese official accused of attempting to steal trade secrets from US aviation and aerospace companies. There was no public access to the jury’s selection. The audio recordings of the trial were reproduced for the media in the conference room.
Crowded rooms are better than nothing, but they often leave onlookers unable to see the full context of what is happening, such as the jury’s reaction to the presentation of evidence, said New York City attorney Rachel Strom, who represented the media in the R. Kelly case.
“We don’t know what we missed out on because there was actually no one in the courtroom,” Strom said.
After the AP and other media filed motions, a Georgia judge granted only two courtroom seats right before the jury selection began for the trial of three white men accused of stalking and killing Arbury. A graphic video from a mobile phone shooting a 25-year-old black man last year sparked outrage across the country, and the process is being closely watched as a referendum on how the legal system treats black victims.
Since then, the judge has allowed a third reporter and photographer into the courtroom.
In another high-profile case, the press and the public were initially allowed to listen to court proceedings remotely as pop star Britney Spears tried to end her father’s custody of her finances. But the Los Angeles County Superior Court overturned the remote access after someone taped the hearing, and the court refused to reinstate it for a hearing in September when Spears was released from her father’s oversight. Instead, the court allowed more people to enter the courtroom.
USA Today recently petitioned the California Supreme Court to restore the deleted audio to the public and the media.
“No one should risk their health to exercise their constitutional right of access by personally attending and attending court,” USA Today said in a statement. He also suggested that the deleted audio programming should continue “even when the pandemic is over.”
California’s request highlights how the pandemic has changed expectations about what qualifies as open access.
“As the courts reopen, they should seriously consider maintaining some amount of remote access for the public,” said Lin Weeks, an attorney for the Committee of Reporters for Press Freedom.
Many courts now routinely use videoconferencing in civil claims, criminal bail proceedings, and family law disputes such as child custody and divorce proceedings. Some also use videoconferencing for jury selection or for the entire jury trial.
Court officials say the virtual trial has saved time and money for lawyers, jurors, plaintiffs and defendants who no longer need to travel to courthouse, take time off from work, or arrange childcare. Courts also saw fewer absenteeism among those called up to virtual juries and, as a result, more jury diversity.
“It was a lifeline as we tried to keep the justice system running during the pandemic, but it also led to transformation,” said Sean O’Donnell, a high court judge in King County, Washington, where Seattle lives.
King County judges have conducted nearly 700 online trials, including about 50 with jurors. During the trial, chaired by O’Donnell last week, the judge, attorneys, witnesses and jury appeared on a 20-segment Zoom screen that the public could view on YouTube. Two jurors sat in wardrobes. One participated from his car. O’Donnell chided the other for removing his cat from the camera’s field of view. A witness testified from Oregon, a couple hundred miles away.
Despite these oddities, the virtual trial proceeded much like a normal trial, with lawyers taking turns interrogating witnesses and evidentiary documents displayed on a screen for all to see. There were even intermittent breaks when the participants got up and stretched.
The trial practically freed up space in the courthouse. To accommodate social distancing, O’Donnell says face-to-face trials use up to three separate courtrooms – one for the trial itself, one for the public to view it remotely, and one for the jury to use during breaks and meetings. …
Across the Hawaiian island chain, the ability to observe ships effectively increased public access during the pandemic.
John Burnett, reporter Hawaii Tribune Heraldwas unable to cover State Supreme Court or US District Court hearings before the pandemic because it took a 50-minute plane ride from Hawaii, also known as the Big Island, where his newspaper is based, to Honolulu, Oahu. … He now regularly listens on the phone to federal court cases and watches State Supreme Court arguments on YouTube.
“I think they need to become permanent because let’s face it, we’re talking about public information here,” Burnett said. “If we can’t get out on real land, at least if we have virtual land, that’s the best replacement we could hope for.”