How COVID changed the courts forever

JACKSON — COVID-19 forever changed the court system.

Pandemic-prompted health guidelines forced all levels of U.S. courts to move online, a historic evolution for a system dependent on paper filings and in-person hearings.

The novel coronavirus raised the question: Is there another truly essential group activity other than a jury trial?

With that in mind, courts wrestled with how to protect the rights of the accused while instituting changes in the traditionally antiquated judicial sphere in response to state health regulations to deal with COVID-19.

Jury selections and trials pivoted, giving jurors iPads and conducting the selection process, for example, inside the Jackson Hole Center for the Arts auditorium to allow for physical distancing.

The courthouse ventilation systems were updated. A new flat-screen TV was installed in the courtroom, while remote hearings moved online via Microsoft Teams. Defendants were released pretrial.

From a judge

For Teton County District Court Judge Melissa Owens, COVID-19 allowed for flexibility that can save time and money.

“When there are several parties and attorneys involved and they may not be located in the same jurisdiction, there’s a lot of hearings we can do now via Teams to cut down cost and expense for litigants,” Owens said.

Although Owens has transitioned court back to in-person hearings “as much as possible,” especially in the criminal context, she said there’s more plasticity for parties now.

“I’m always open and receptive to motions from parties if for some reason they need to appear remotely due to scheduling conflicts, expenses or things like that,” Owens said. “For example, for lawyers with offices out in Wilson, if they’re on deadline to get something filed and instead of driving over in the summer traffic, what a great option (to appear remotely).”

Remote hearings also have benefited nonresidents, Owens said.

“An interesting thing I would note is that when I was the municipal judge, being able to conduct court remotely was helpful to someone passing through who got a traffic ticket,” she said. “The out of towners wanted to be able to have a trial and fight it, so it was helpful to them to know they didn’t have to come back to Teton County to contest a traffic ticket.”

From a public defender

Teton County public defender Elisabeth Trefonas and former U.S. President John Adams have one thing in common: Both believe the right to a fair trial is “the heart and lungs of our democracy.”

Trefonas ran into a few obstacles during court proceedings, such as trying to assess a jury or judge’s response while watching a witness in Zoom.

“Facial expressions are key to determining demeanor,” Trefonas said. “Am I pushing the witness too hard? Should I have pushed harder?”

She also said raising objections over opposing counsel’s actions via Microsoft Teams was trickier.

“It’s a lot easier to object in person because you’re not trying to cut someone off verbally,” Trefonas said. “In court you would stand up or raise your hand. Raising your hand on Teams isn’t working for us.”

Although Trefonas didn’t get any complaints from her clients during the pandemic, she said it took a minute to bring her clients up to speed so they understood the remote technology.

“There’s a misunderstanding that indigent folks have connectivity,” Trefonas said. “But I think our clients have really preferred having the remote option because for some folks it’s not easy to get themselves to court. We take mobility for granted.”

One thing her office is continuing with is its drop-box system outside the building where the attorneys can exchange documents with their clients outside of business hours.

From a sheriff’s sergeant

Delays that COVID precautions caused in adjudication affected law enforcement, especially when it came to repeat offenders.

“The effect in my opinion was that we had a lot of cases that had no resolution as far as an adjudication of some sort,” said Clayton Platt, investigations sergeant for the Teton County Sheriff’s Office. “Yet there were still times when we would deal with that person again on similar conduct.”

That was a tricky place to be in, Platt said, when that defendant’s first crime hadn’t been adjudicated yet, like a DUI.

“There were a couple times that we had people with multiple DUIs that were not adjudicated when they were arrested for their second one,” Platt said. “In non-COVID times, similar cases often would already have been adjudicated fully and that would allow subsequent arrest for the same type of offense to carry a possible enhancement. But that cannot happen until there are convictions.”

Platt said the norm pre-COVID was around six months between the initial arrest and any ruling or trial. Depending on the crime, the new norm during the pandemic was “often well over a year.”

From a court reporter

Lance Oviatt  — and court reporters everywhere — were particularly affected by the move to remote hearings.

“Normally for in-person hearings, I’d certify the transcript as verbatim,” Oviatt said. “But for hearings on video, I don’t certify the transcript as verbatim because I don’t know if I’m hearing the same things.”

We all know the challenges Oviatt was speaking of: spotty internet connections, people not speaking into their microphone or talking over each other. Attendees dropping off a meeting, leaving the other attendees with no idea how long they were gone and, when they do pop back in, needing to backtrack.

Oviatt and other court reporters had to write “inaudible” or “unintelligible” in their court records. That may be cause for future appeals, Oviatt said.

“There haven’t been any appeals on that yet, but let’s say it’s a criminal case ... The Supreme Court may later look at that transcript and say, ‘We don’t know what he said.’”

Before the pandemic, Oviatt said, he would “never ever” have the words inaudible or unintelligible in a transcript.

For individuals with accents or speech impediments, Oviatt’s job was even harder.

“It helps if I can see their face,” Oviatt said, saying he sometimes reads lips. “But there was difficulty with lighting or cameras sometimes.”

On the brighter side, Oviatt was responsible for a statewide change improving access to technology.

“If somebody didn’t have a device or internet access, we had them come to the courthouse and they sat in the lobby downstairs and court deputies would give them an iPad to use our Wi-Fi,” Oviatt said. “We were the first court in Wyoming to do this; we bought our own tablet.”

Oviatt shared that approach with the Wyoming Supreme Court, which then sent two iPads to every court in Wyoming.

“Now we have iPads available, and we used some COVID funding to buy more,” he said. “The pandemic forced us to upgrade some of our technology that was old.”

For instance, the district courtroom now has a large touch-screen computer that looks like a TV screen.

“The TV benefits people who are appearing by video,” Oviatt said. “We use it to show evidence or if a remote witness needs to appear.”

Pre-COVID, the court didn’t have capability to show video. A remote witness would call in so the jury could hear the audio but couldn’t physically see the person.

In essence, Oviatt said, “we’re modernizing our court system.”

From a clerk

One of Anne Sutton’s primary tasks as clerk of the district court is to coordinate the jury selection process for criminal trials. 

This process required “two to three times” more work for the clerk’s office, “but it was important work,” Sutton said.

Throughout the pandemic, Sutton followed the Wyoming Supreme Court’s jury trial management plan.

“Generally jurors showed up in three different panels to allow for distancing,” Sutton said. “There was a lot of information exchange about COVID protocols, opportunities to communicate their medical needs and remote availability.”

Court documents also move through Sutton’s office, where they’re filed to keep the court record up to date and eventually archived. It’s a lot of paper, but it’s about to be less.

Sutton and Owens agreed that COVID greatly accelerated the process of transitioning the courts from its paper-reliant system to paperless e-filing.

“The rules for email filing used to be more restrictive,” Sutton said. “You couldn’t send more than 10 pages and only in emergency situations, but now email filing rules have more uniform practices across the state, which has enabled greater and more consistent access for attorneys and litigants to work remotely.”

The Teton County District Court will transition to a new case management system in early June, which is a required first step before e-filing can begin. The e-filing system is expected to be implemented one year later in 2023.

“It’s increased the momentum and energy and willingness to evolve,” Sutton said.

One result of the pandemic that the district court will be continuing is the practice of posting the weekly calendar online, increasing transparency for the public.

Sutton also feels more confident that systems are in place should other adverse circumstances arise in the future.

“Adjustments that we made would be effective in any number of circumstances,” Sutton said. “The pandemic provided the opportunity for us to work out how we can continue the work of the court remotely if necessary during any number of emergencies. We also were forced to cross-train a lot more quickly which means we have broader ability to assist with more complex items, questions and issues.”

It also reinvigorated court employees and reaffirmed their sense of purpose.

“It’s a dedicated group of public servants who know how important a high-functioning court system is to our community and to democracy,” Sutton said. “People rose to every occasion I can think of, and it’s been invigorating in terms of ‘This is important work.’ It highlighted how essential this work is. You end up even more committed to your cause and that cause is trust in your court system.”