Even so, virtual proceedings aren’t going anywhere anytime soon — and new flash points are emerging over how to maintain public safety while keeping the justice system limping along.
Defense lawyers are challenging Miami-Dade judges who are expanding the use of Zoom, including one who ordered a probation-violation hearing that could send a man to prison for life. And prosecutors are challenging a judge who suggested a homeless woman undergo a Zoom deposition — from the outdoor vacant lot where she stays.
These new legal fights underscore how, seven months into the pandemic, the coronavirus continues to radically upend the criminal-justice system in Miami-Dade, the largest court circuit in Florida.
The Florida Association of Criminal Defense Lawyers, which is helping appeal a judge’s decision to hold a probation violation hearing via Zoom, said attorneys won’t be able to properly communicate with their clients during such high-stakes hearings.
“What we are dealing with is the old ‘Jurassic Park’ argument. The courts seem so consumed with whether they can hold these hearings, they haven’t really stopped to think if they should,” said Jude Faccidomo, of Miami, the group’s president-elect. “These are difficult times, but if history has taught us anything, the most important time to guard constitutional rights is when it is challenging to do so.”
As with other public spaces, Miami-Dade’s Richard E. Gerstein Justice Building largely shut down in mid-March as the highly contagious virus swept across the globe. The Florida Supreme Court on March 13 suspended jury trials and speedy trials, while the system contracted with Zoom, the now-ubiquitous video-conferencing service, to start holding virtual hearings.
For the entire summer, the system inched along, with only emergency hearings held in person, and Zoom being used for hearings. Among those hearings: ones regarding scheduling, to get defendants out of jails while awaiting trial, plea deals, and even hearings to determine if someone is immune from prosecution under Florida’s Stand Your Ground self-defense law.
Across Florida, jury trials have largely remained suspended, although Miami-Dade did conduct a pilot remote civil trial, one of five conducted around the state. A report on the success of the pilot programs from the courts is due in October.
Late last month, a court in Flagler County held the first “in-person” criminal jury trial in Florida since the pandemic began. A jury convicted a man of stealing a car and leading cops on a high-speed chase.
Judges and lawyers wore masks during the proceedings, while a court clerk and a deputy donned plastic face shields. No more than 25 people were allowed in the courtroom — although the trial was live streamed on YouTube, which allowed for the public and media’s access to proceedings.
Officials chose Flagler County for the first case because, at the time, it boasted a low count of COVID-19 cases, with just 1,275 cases and 15 deaths. Flagler’s criminal courthouse is also new and spacious.
MIAMI'S CRAMPED COURTS
Miami-Dade, of course, is a different beast. The courthouse is ancient and cramped — and clerks and other employees have continued to test positive for the virus. In the county overall, more than 165,00 people have been diagnosed with the virus, and nearly 3,000 have died from complications of the disease it causes.For months, a task force of court and county officials, prosecutors, defense lawyers and health experts have been meeting every two weeks to game plan how jury trials might unfold safely in Miami-Dade.
For now, the Miami-Dade court system remains in what is called “Phase I,” the most restrictive setting that effectively closes courthouses to the public and makes “in-person” hearings “rare.”
In June, Miami-Dade briefly went to Phase II, which sets 30 days for the resumption of some jury trials, but had to backtrack after coronavirus numbers surged in Florida and across the country. Court officials could move to Phase II in the coming weeks, if coronavirus cases remain low in the weeks following Labor Day.
But don’t expect a glut of criminal cases to suddenly go to trial all at once.
“We’re going to try one case, then try another case,” said Miami-Dade Circuit Judge Nushin Sayfie, who oversees the criminal division. “We’re going to do it very slowly and very methodically.”
The task force is hoping to pick a case that is simple, with few witnesses and a defendant who is not in jail — to cut down on the number of jail officers it will take to provide security. Officials are mulling if, and how, to live stream trials to protect the right of the public, the media and victims to attend them.
The clerk’s office is hoping to implement a new system that will pre-select certain jury candidates, to cut down on scores of people sitting around for hours in a courthouse waiting room, like before the pandemic.
Since the courthouse remains relatively empty, bailiffs will use one of three elevators to escort small groups of possible jurors to courtrooms. “If you’re on the jury, the good news is there will be plenty of parking,” Sayfie said.
Still, Sayfie cautioned that remote hearings will remain in place, even when trials ramp back up.
THE DEFENSE OBJECTS
That hasn’t gone over well with many defense lawyers, who believe Zoom hearings for increasingly complicated matters are just unfair.Most pressing, defense lawyers say, is that the courts are now forcing defendants to face probation violation hearings via Zoom.
In one case, a Miami man named Curtis Johnson was on probation for a series of felonies stemming from 2013 and 2014. Last year, he was arrested on an allegation he sold drugs near a school. He faces up to 30 years in prison if he’s found to have violated probation.
His lawyer, Richard Cooper, is asking a judge to postpone the hearing, saying he can’t effectively defend Johnson unless he’s at his side at a real table in court. The judge has yet to rule.
“A probation violation is just like a trial and can carry the same kinds of consequences,” Cooper said. “Any defense attorney knows the importance of those mid-trial whispers or notes. I’ve had cases saved because my client is right next to me and can whisper something in my ear or write something down on a pad in front of me.”
But another judge has already ruled. The case: Jermaine Clarington, 45, who was on probation for a 1989 robbery and murder in Miami-Dade. He’d been on probation since 2018, thanks to reforms in juvenile sentencing mandated by the U.S. Supreme Court.
But in February, Clarington was arrested and accused of helping smuggle phones into a state prison. Earlier this month, lawyers Aubrey Webb and Dan Tibbitt asked the judge to postpone any hearing.
“The client is potentially facing life in prison over a video screen,” Tibbitt said during the Zoom hearing.
The Miami-Dade State Attorney’s Office is not objecting to a delay. “We do have concerns about being able to protect against claims of inadequate counsel,” Assistant State Attorney Sonali Desai told the judge.
Circuit Judge Miguel de la O said Zoom — which allows for private “break-out” sessions for participants — will work.
“In a perfect world, there would be no [COVID-19] and Clarington would be transported to court for his probation hearing,” de la O wrote in his order. “But this is not a perfect world, and it is more than good enough for Clarington to appear on Zoom from the jail, where he can see and hear the witnesses, and communicate with his Counsel.”
Clarington’s lawyers will appeal.
COVID COMPLICATIONS
The State Attorney’s Office, however, is appealing another COVID-19 related complication involving virtual appearances.At issue: the case of Devrick Boykins, who was charged in 2018 of attempted murder with a deadly weapon.
In Florida, defense lawyers are allowed to conduct depositions of witnesses. In this case, the key eyewitness is a woman who is now homeless, has no phone and lives in her car in a vacant lot in North Miami-Dade.
Because she does not have a fixed address, Boykins’ defense attorneys have been unable to serve her a subpoena, although a prosecutor told the court he found her at the lot and called the defense lawyer to show her where she was staying.
Normally, prosecutors could bring a witness to the State Attorney’s Office for a deposition — in the beginning of the pandemic, the office set up a kiosk in the lobby for witness depositions.
“We had them at one point, but when the COVID numbers started going up we had to do away with that, and we haven’t reinstated it for safety reasons,” Chief Assistant State Attorney Scott Dunn told the judge. “If they don’t have a computer or a phone that they can connect, we don’t have the ability to bring them in right now.”
“I’m willing to take the deposition anywhere. That’s kind of the beauty of having the ability to do this via Zoom, which can be telephone or computer,” defense lawyer Daniel Grande said.
Miami-Dade Circuit Judge Jose Fernandez, during the Sept. 8 hearing, pressed for the street deposition and even mocked one of the prosecutors.
“Under these circumstances, everybody can be six feet apart. Everybody can wear a mask,” Fernandez said. “You’re — you’re Mr. Case Law. Give me the case cite that says you can’t do a deposition on a street corner.”
The judge ordered prosecutors to “produce” the witness within 30 days. Prosecutors are appealing. The safety of the witness could be an issue because doing a video deposition on the street could expose her to possible retaliation if she’s seen as cooperating with authorities.
“The State Attorney has always held that the personal safety of crime victims and witnesses must be a prime concern of our criminal justice system,” the office said in a statement. “They depend on us and we can never fail them.”
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