Tech Advances in Michigan Courts May Leave Some Behind

(TNS) — Plexiglas partitions, arraignments of defendants from their homes and judges moderating virtual hearings have become the norm for courts across Michigan since COVID-19 was discovered in the state just over a year ago.

Courthouses — once full of defendants, their families, jurors and attorneys — are now empty halls of justice, with most hearings moved online to prevent the spread of the virus that has killed more than 16,000 Michiganians.

The use of technology to conduct proceedings remotely has allowed courts to continue functioning, and some hearings will remain remote even after the pandemic is over, including misdemeanor trials, civil matters, family court proceedings and motion hearings. In some courts, such as Wayne County Circuit, preliminary hearings have continued in person, with just the defendant, attorney, judge and support staff present.

But even with those innovations, courts across Michigan have been forced to postpone most trials in felony cases because the need to seat juries in person would put too many people in a courtroom and go against court restrictions during the pandemic. The result: backlogs of thousands of cases, some dating back a year or more, in Michigan courts.

In Wayne County alone, more than 3,000 cases await the circuit court's 58 judges. In Macomb County Circuit Court, just five jury trials were conducted last year, compared with 155 in 2019, said Chief Judge  James Biernat Jr .: "There is no comparison to what happened to us."

A murder case that was scheduled to go to trial last month before Macomb Circuit Judge  Kathryn Viviano  was postponed for the 10th time.  Jonathan Jones , 27, is accused of causing the May 2017 death of his girlfriend's 4-year-old daughter,  Ivy Yurkus , by punching her in the stomach.

Such delays are especially troubling to defendants and their lawyers.

"Courts can't be on hiatus in the midst of a pandemic," said  Allison Folmar , a Southfield-based defense attorney. "It is a (constitutional) mandate that the system works effectively."

Detroit defense attorney  Patrick Nyenhuis  also noted remote proceedings can be "very useful" but not for someone who faces trial on serious charges.

"They can't be in front of a jury or trier of fact until the world opens back up again, which we don't know when that will be," he said. "So Zoom is good for a lot of things but bad for somebody who's maintaining their innocence. They're stuck in jail or even out on bond on a tether just waiting, waiting, waiting for their case to be in front of a jury."

Michigan's recent resurgence in virus cases (the state's infection rate of 452.5 cases per 100,000 people is the nation's highest) means courts will have to wait still longer to restart most jury trials and begin catching up, judges say.

"We have not been able to resume jury trials because of the rise in COVID-19 cases," said Chief Judge  Timothy Kenny  of Wayne County Circuit Court. "We've had to hit the pause button. ... We have to wait and see what kind of consequences this spring break has had."

In Oakland County, Chief Judge  Shalina Kumar  said the Oakland County Circuit Court's 20 judges won't start hearing trials again until May at the earliest: "It depends entirely upon the state of COVID-19 in Oakland County."

She estimated the court's backlog at 80 to 90 cases "for which jury trials are expected, though some of these could settle before trial begins."

"Most of these trials will be associated with criminal cases," Kumar said. "A few are associated with civil and delinquency cases."

Under rules set by the State Courts Administrative Office, a county's courts can't resume jury trials unless the seven-day average of new COVID cases is at or below 70 per 1 million population and the positivity rate is 10% or less, Kumar said.

As of Sunday, Oakland County's seven-day average of new cases was 761; the county's population is about 1.2 million.

Kumar said court officials will consult with state and local officials about when to began having jury trials again.

"We want to be sure that the Health Department and SCAO are supportive of resuming jury trials to ensure, to the greatest extent possible, that the health and safety of jurors and all trial participants is protected," she said.

Even when jury trials start up again, they won't look the same, at least for a while. Participants can expect to wear masks, face other restrictions and see plexiglass barriers around judges' benches, attorney tables and jury boxes.

In Macomb County, for instance, when circuit court trials resume, the number of people permitted in the jury room — which holds prospective jurors — will be reduced from 300 to less than 60, Biernat said.

And when a trial is in session, "no one will sit in the jury room," he said.

Michigan Supreme Court  Chief Justice Bridget McCormack  says many of the changes forced by the pandemic will be the norm going forward in the state's courts, especially the use of platforms such as Zoom and YouTube to ease scheduling, but in-person hearings will still be an option for defendants and other participants who have a barrier to technology.

In an instance of "serendipity," judges and courthouses across Michigan were licensed to use Zoom and YouTube for hearings in 2019, she said.

"We felt grateful that we had already gotten the Zoom licenses a year earlier," McCormack said. "We were unlike a lot of other state courts who had to scramble to find Zoom licenses. We were able to focus instead on training, tech support and tech tools. ... We really lucked out on that."

To date, local courts have logged about 2.4 million hours of proceedings and court appearances on Zoom, said  John Nevin , the spokesman for the Michigan Supreme Court and state courts.

Whatever the shape of court proceedings to come, "my concern is what will justice look like" in the future, said Follmar, the Southfield defense attorney.

"Justice delayed can sometimes be justice denied," she said.

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