Denver District Court Judge Kandace C. Gerdes speaks to attorneys over WebEx during court proceedings on May 20, 2021.
Justice Maria E. Berkenkotter asks a question during the Colorado Supreme Court’s oral arguments on Feb. 9, 2021. The Supreme Court has live streamed and archived its proceedings for more than a half decade, but oral arguments during the COVID-19 pandemic took place over WebEx.
FILE – This Jan. 14, 2013, file photo shows a gavel sits on a desk inside the Court of Appeals at the Ralph L. Carr Colorado Judicial Center in Denver. (AP Photo/Brennan Linsley, File)
Denver District Court Judge Kandace C. Gerdes speaks to attorneys over WebEx during court proceedings on May 20, 2021.
One Friday morning in Denver District Court, the judge held up a piece of paper to her courtroom camera, letting the defendant know he would be serving less time than the document showed.
“I don’t know how to share a screen; couldn’t share one to save my life,” acknowledged Judge Kandace C. Gerdes. The defendant, sitting in detention and attending court virtually, because of the COVID-19 pandemic, stared through his camera.
On this day, the man was pleading guilty to weapons and drugs charges. Gerdes asked if he wanted to say anything before she sentenced him.
“It keeps happening to me because I make foolish decisions on my own,” he admitted. “I apologize to my family, who I care about the most.”
He and the judge looked at each other through their cameras.
“I’m not going to preach, but I am going to say something you said to me that I don’t always hear people say: ‘I made the foolish decision,’ ” Gerdes said.
She wished the man luck and his box disappeared from the computer screen.
As masks and social distancing recede and people are allowed to gather in groups safely again, what does that mean for Colorado’s courts, which became more accessible than ever before in the COVID-19 era?
The answer to reducing coronavirus transmission has been video and audio streaming, as people watching on their computers received unprecedented access and insight to the third branch of government, which has historically revolved around the physical courtroom itself. The pandemic adjustments were not designed for the flashy trials, or even specifically for the education of the public, but rather for the more mundane business of the justice system.
As some courts rose to the occasion, others did the bare minimum.
At the same time Gerdes handed down one person’s sentence, across downtown Denver in the federal courthouse, a different defendant was pleading guilty to District Court Judge Raymond P. Moore remotely. Unlike in the state court, the public could only listen in by calling a telephone number. The judge showed the defendant the various sentencing categories in a chart that no one listening could see.
“Zone B, zone C, zone D, zone A,” Moore said, referencing the chart. “Regardless of where the guideline numbers fall, they’re going to recommend a sentence of probation with home confinement.”
The judge asked if the man understood. There was a momentary silence on the line.
“I think he just froze,” said one attorney. Another suggested the defendant had gotten an incoming call.
After Moore advised the man of his rights, he indicated his strong preference that the defendant show up in person for his sentencing.
“I understand, your honor,” the man repeated.
Justice Maria E. Berkenkotter asks a question during the Colorado Supreme Court’s oral arguments on Feb. 9, 2021. The Supreme Court has live streamed and archived its proceedings for more than a half decade, but oral arguments during the COVID-19 pandemic took place over WebEx.
Staying safe
During the COVID-19 pandemic, governors and legislators, who are used to working in the public’s eye, were forced to find new ways of being visible while also being safe. But COVID-19 provided an opportunity to push the judiciary, which is typically out of sight and out of mind absent a high-profile trial or U.S. Supreme Court decision, to be more accessible than they have ever been.
In interviews with Colorado Politics, judges, attorneys and other court personnel communicated two primary messages: We want the public to see what the judiciary is doing, and we can’t imagine many people would take advantage of the opportunity if they didn’t have to.
“To be honest, I don’t think it’s very interesting to watch,” said Ann B. Frick, a former Denver trial court judge who retired in 2016.
Although in-person trials have resumed and vaccinations are continuing apace, there is still uncertainty about the level of remote access the courts will provide post-pandemic. Interest in having cameras in courtrooms is almost as old as the motion picture camera itself. A bill introduced in 1937 in the U.S. House of Representatives would have mandated cameras in federal courts.
But since then, the message from the nation’s highest court has been a hard “no.”
Video streaming court cases “would be very helpful in getting more people familiar with how the Court operates. But that’s not our job, to educate people,” said Chief Justice John G. Roberts Jr. in 2018.
The good news is: at Colorado’s higher courts, the state’s Judicial Department has provided a higher level of access for years than its federal counterparts.
“We felt that we had this technology, we wanted people to have access to our process, so we went ahead and did that,” said Chief Judge Steve Bernard of the Colorado Court of Appeals, which reviews cases directly from trial courts. The court has live streamed its oral arguments for more than half a decade, with its YouTube archive dating to 2015.
“That process has worked very well,” Bernard added.
Along with the Colorado Supreme Court, which also live streams and posts its proceedings, the biggest change for the appellate courts benefited litigants more than the public. Allowing lawyers to appear remotely is a popular change, with attorneys able to avoid traveling to Denver and billing their clients for the cost. Lawyers can also appear in multiple jurisdictions more easily.
“At the time, the use of video streaming was not widespread and there was some initial apprehension that having video would alter the dynamic of oral argument — that people would behave differently knowing there were cameras recording the proceeding,” said Justice Monica M. Márquez, currently the longest-serving member of the Supreme Court who was on the bench when the justices moved into the new Ralph L. Carr Colorado Judicial Center nearly a decade ago.
“There were also concerns based on experiences in other states that excerpts of the video might be misused or taken out of context for distorting what actually happened during the argument,” she continued, citing a common concern among the judiciary.
The video archive for oral arguments in Colorado dates to 2015, although the Supreme Court made two exceptions prior to that. In 2013 and 2014, the justices video streamed two cases related to public school funding, both of which had generated a high amount of public interest.
FILE – This Jan. 14, 2013, file photo shows a gavel sits on a desk inside the Court of Appeals at the Ralph L. Carr Colorado Judicial Center in Denver. (AP Photo/Brennan Linsley, File)
Tuning in
Although the number of moving pieces in an appellate oral argument is smaller than a full-blown trial, it is still possible in 2021 to evade the reach of cameras at that level. Alabama’s Supreme Court, for example, charges $15 for a DVD of oral arguments, and does not upload theirs online. Even the federal appeals court based in Denver is without video, although the pandemic did prompt it to institute audio streaming over YouTube.
The move put the U.S. Court of Appeals for the 10th Circuit in line with most of its counterparts, but still a step behind the most populous federal district — the San Francisco-based Ninth Circuit, which has video streamed its oral arguments for many years. The court for the nine-state region, which includes Alaska and Hawaii, has over 6,300 videos posted online, with three million views.
“During the pandemic, one of the great things was that while everybody else was scrambling to figure out public access, we didn’t do anything differently,” said Molly Dwyer, the clerk of court for the Ninth Circuit. “You’re talking about the entire West Coast of the United States. People live hundreds of miles from a courtroom. If we didn’t live stream video, people just wouldn’t have access.”
The question of public access becomes thornier for the trial courts, which form the foundation of the judicial branch and are the most familiar component of the court system. Here, the state and federal courts diverge most clearly.
On March 30, 2020, four days after Colorado’s statewide stay-at-home order took effect, the state Supreme Court modified its rule allowing audiovisual appearances in judicial proceedings during the public health emergency. Hearings over the virtual WebEx platform “shall be conducted in a courtroom open to the public or in a manner that allows members of the public to hear or watch and, where appropriate, participate in the proceeding,” the Court clarified.
As an educational tool, the video stream receives thumbs up from practitioners.
“It is important that the community understand what is happening in the criminal justice system, and that they feel like the work we do reflects and upholds the values of the community as a whole,” said Adrian Van Nice, chief trial deputy in the 20th Judicial District Attorney’s Office in Boulder. “Open and public access to the criminal justice system (hopefully) serves to build trust in the criminal justice system as well and serves as a ‘check’ on the improper exercise of discretion by judges, juries and prosecutors alike.”
More so than others, there are two trials that have influenced people’s thinking on cameras in lower courts: those of O.J. Simpson and Minneapolis police officer Derek Chauvin. In the former instance, the decision of then-Los Angeles County Superior Court Judge Lance Ito to allow one camera to broadcast the high-profile homicide trial embittered many judges to the notion of cameras in the courtroom.
“Cameras are rarely allowed in New York courtrooms even though the law permits it. Thanks, O.J. Simpson,” the editorial board of the Syracuse Post-Standard wrote in 2019.
Although unwanted publicity and attention-seeking behavior from the parties is a cause for concern, the more common issues pertain to the rights of defendants and the privacy of victims.
While courtrooms themselves are open for public observation, cameras might alter “if the victim is willing to get up and tell a judge how a crime has really affected him or her, if they know it’s being broadcast,” said Travis Sides, the district attorney for the 13th Judicial District in northeast Colorado. “You don’t want all your friends and buddies, people who are in your classes or sports teams, to know all the particulars.”
Guidance needed
Ara Ohanian, head of the Douglas County Regional Office for the Colorado State Public Defender, agreed that some details for defendants would be embarrassing to broadcast, even if the video is not later archived. In his opinion, judges should make the decision on which proceedings to live stream, with the defendant having a say.
“I think there should be a group that gets together at the legislative level to establish the best practices on virtual courts and what should be in them,” Ohanian said.
Others believe the concerns are overblown. The Sixth Amendment provides the right to a public trial for the benefit of the criminally accused, but the U.S. Supreme Court has sanctioned the ability of judges to close courtrooms to the public under certain circumstances. The ability to do so with a live stream may be more of a legal than a technical matter.
“Where there are legitimate concerns with witness safety, or other special circumstances, cameras can be turned off or witnesses’ faces can be blurred,” wrote Alex Kozinski, former chief judge of the Ninth Circuit, and his law clerk Robert Johnson in 2010. They added that “decades of experience in state courts, and ample empirical evidence, simply does not support a blanket prohibition on cameras in the courtroom.”
In contrast to Simpson’s 1995 trial, the trial in Minneapolis this year of Chauvin, the former police officer who murdered George Floyd in May 2020, featured a live streamed courtroom that appeared to proceed calmly. As such, observers, among whom was the former chair of the U.S. Senate Committee on the Judiciary, Chuck Grassley, R-Iowa, took away the message that the judicial process was fair.
“If they’re already allowed to do it, I don’t think probably the [Judicial] Department would want to take it away,” said Frick, the former Denver judge, about the current degree of live streaming allowed in Colorado. But on the other hand, “I don’t think I needed to know there was a camera on me to maintain my judicial temperament, my patience, my respect.”
In the federal trial courts, however, there is a firmer policy: live streaming is out of the question.
“It is Judicial Conference of the United States policy (the governing body of the U.S. Courts) that cameras/broadcasting of court proceedings is prohibited,” said Jeffrey P. Colwell, the clerk of the U.S. District Court for Colorado.
Pilots, more pilots
The policy does allow individual judges to make exceptions for naturalization, ceremonial or other proceedings in which a recording would not be disruptive or would interfere with justice. Paula Greisen, a civil rights attorney in Denver, said federal courts tend to be more formal, with a preference for in-person attendance.
“Really, there’s no excuse not to open up access to anyone and everyone who wants to know what’s going on in this public forum,” she said.
Greisen added: “You have to trust the public to have confidence in what they’re watching. People have to make their own independent assessment.”
Since 1991, the federal courts have tried multiple public access pilot programs. That year, two circuit courts and six district courts across the country began recording their civil proceedings. A report concluded that the camera “has minimal or no detrimental effects on jurors or witnesses,” and that judges grew to like the program. Nevertheless, the pilot was terminated in 1994.
A similar “cameras in the courtroom” initiative in 2011 encompassed 14 courts, of which Colorado’s was not one. Although the program ended in 2015, three trial courts within the Ninth Circuit — one based in Seattle, one based in San Francisco, and the court for Guam — continued to record civil cases upon the judges’ approval and posted the videos online. (The Federal Rules of Criminal Procedure bar the broadcasting of criminal cases.)
“I’m a big believer in the best thing you can do is give the public the right to see the raw materials, because I think we come across pretty well when people know what we do,” Senior Judge James L. Robart said.
Robart, a federal trial court judge in the Western District of Washington, has allowed cameras to record his oversight of the Seattle Police Department’s consent decree with the U.S. Department of Justice. He also permitted cameras to roll on Feb. 3, 2017, when he halted enforcement of the Trump administration’s Muslim ban.
“The public at large is eager to have a better understanding of the courts. The more they know about it, the more they follow the mantra of, ‘I want to make up my own mind,’ ” Robart explained.
If the U.S. Supreme Court started broadcasting its proceedings, he added, it would be a major breakthrough that would likely prompt people to look at lower courts that do not follow suit and ask, “Why is my court different?”
The federal courts authorized yet another pilot program last year, but this time for audio streaming. Over the next two years, 13 courts will stream to YouTube “select proceedings in civil cases of public interest.” Colorado, again, will not participate. Colwell said simply that the judges on the court did not volunteer the district for it.
“It’s not a technology issue, it’s a policy issue,” he said.
Future policy
Bill McCool, the clerk and court executive of the Western District of Washington, where the “cameras in the courtroom” pilot program is continuing, said his court, like Colorado’s, has used a call-in line during the pandemic for public access. However, he believes the call-in line will disappear when courthouses reopen.
“I don’t know what our district is going to do. I urge transparency in all matters, and I think it’s great for the public to see what we do,” said McCool, who is retiring in June.
According to Colwell, the federal district court may or may not ax its public call-in line post-pandemic. The clerk for the 10th Circuit similarly could not commit to the court’s continued audio streaming of oral arguments.
At the time of publication, the Administrative Office for the U.S. Courts could not provide an answer about the future of audio and video access post-pandemic. Citing the sensitive nature of the topic within the judiciary, a representative of the office was unable to reveal the federal courts’ thinking after more than two weeks of inquiry.
By contrast, Márquez, the state Supreme Court justice, said the state’s High Court will not back away from live streaming, even though the audiovisual equipment is becoming obsolete and will need replacement eventually.
At the trial court level, “WebEx proceedings have created greater access to justice,” she said. “On the other hand, not everyone has a computer or reliable Internet access. As a branch, we have certainly learned valuable lessons moving forward and some virtual hearings will continue even after the pandemic.”
Multiple people told Colorado Politics they expect video streaming to become more common, if not the norm, in the coming decades. From there, it might be a step to archiving the videos, such that appellate courts may not have to rely solely on paper transcripts of a trial, and judges deciding on appeals could see the contested issue as the trial judge saw it.
But Ohanian, the public defender, did not believe making it easier for observers to access court proceedings online meant inherently more accountability. The public who log on to watch may not have the legal sophistication to know what to look for, he said. They might not have seen or understood, for instance, the misconduct and potential red flags that led to the state Supreme Court’s censure and resignation of two trial court judges within the past month.
However, Ohanian added, “when I’m doing the high-profile cases and there are members of the media in there, [prosecutors and judges] act differently, for sure.”
In the case of Alexander Carlos Nunez, which the justices heard directly — bypassing the Court of Appeals — Arapahoe County District Court Judge Michael Spear noted on April 30 of last year that the Supreme Court had recently changed the rules and allowed judges to declare a mistrial if jury pools could not be safely assembled during the pandemic.
A three-judge panel found a Mesa County judge correctly declined to instruct a jury that a defendant’s cannabis grow was legal only if it took place in an enclosed and locked space, noting that this legislatively-added stipulation “cannot trump the constitution.”
Colorado’s two independent redistricting commissions have two words for state lawmakers: Hands off.
The Colorado Judicial Department won’t have to provide documents about allegations contained in a memo outlining instances of judicial sexual harassment as part of the discovery for a racial and age discrimination hiring case, a federal magistrate judge ruled on Wednesday.
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