Coronavirus forced courtrooms to go virtual. Disconnections and the digital divide make it harder to argue your case.
For many immigration cases, testimony from a witness — a co-worker, a friend or relative — able to come to court and vouch for you is critical for the defense of why you should be allowed to stay in the country. But with courts going online because of the coronavirus pandemic, defendants aren’t afforded that help in some cases.
Virtual courtrooms have taken away many of the resources that lawyers and defendants rely on, attorneys say, including basic necessities like being able to talk with each other in private and having an interpreter present for non-English speakers.
Anna Byers, a senior attorney for the American Friends Service Committee, is among the many lawyers dealing with the difficulties of virtual courts. She works with the committee’s Immigrant Rights Program and represents people held in immigration detention centers in New Jersey, where witnesses can only testify virtually if approved by a judge.
“Pre-pandemic, witnesses are allowed to come to the courtroom as long as they have some form of ID. Post-pandemic, the courtroom is closed to everybody except court staff,” Byers said. “As you can imagine, if you’re trying to show ‘my wife is going to experience extreme and unusual hardship,’ it’s really important that your wife be able to testify.”
She said courts haven’t allowed for witnesses because they can’t verify their identities virtually. It’s one of the many digital divides causing disadvantages for defendants, lawyers said.
Courts around the world are moving to virtual trials, with the Supreme Court hearing arguments remotely for the first time in May and a court in Singapore issuing a death sentence through videoconferencing. Virtual trials are the logical result of the global pandemic that has forced everyone to keep a distance from each other and slow the spread of the novel coronavirus. But the shift represents a situation where the loss of face-to-face contact has potentially devastating consequences. Critics note the virtual setup puts defendants at a disadvantage.
A whitepaper released by the Surveillance Technology Oversight Project on Thursday highlighted these issues, pointing out concerns like poor internet connections, lack of privacy between attorneys and clients and bias that comes with trials over video.
While many aspects of people’s lives have gone online, from funerals to weddings, virtual court cases have been riddled with issues as people’s lives hang in the balance, the report said.
“If we rush to reopen in-person proceedings, Americans will die, but if we fail to invest in the technology to provide true access to justice, millions could lose their freedom, livelihood, property, parental rights, and more,” Albert Fox Cahn, the project’s director and co-author of the report, said.
Virtual trials are becoming mandatory for social distancing purposes, but it’s also caused emotional distancing in court cases, lawyers said.
This isn’t a new phenomenon because of the COVID-19 pandemic. Studies have long shown the effects of video conferencing in court cases, often resulting in drawbacks for people appearing by video.
A 2005 study of immigration courts in Illinois using videoconferencing highlighted that judges were more likely to be “emotionally distant from and apathetic” to immigrants making their arguments on video screens. Another study in 2017 out of Cook County, Illinois, found that defendants appearing virtually had a 51% increase in average bail bond amounts compared with people who appeared in person.
All aspects of a trial are affected when they’re done virtually. You lose the ability to pick up subtle facial expressions on judges. Conversely, you lose a lot of emotional investment in people when they’re speaking through a screen.
“It’s a lot different to hear someone talk about their rehabilitation or the circumstances of an arrest when they’re on video versus in person,” Byers said. “The immigration system in general is incredibly dehumanizing throughout the whole process.”
Many of these cases depend on the judge’s discretion and determining people’s credibility and it gets much harder through a pixelated video, she said. Attorneys aren’t able to see people’s reactions clearly or pick up on nuances like body language.
In New York City, virtual hearings have also presented a new visual that’s normally not seen in courtrooms — defendants speaking from behind bars. Jerome Greco, a public defender in the Digital Forensics Unit of the Legal Aid Society, has been doing preliminary hearings virtually, for procedures like arraignments where bail is set.
Before the pandemic, nobody would see the defendant in a jail cell besides attorneys and court staff, Greco said. With virtual hearings though, Greco said his clients aren’t brought to the courthouses anymore, the cameras are brought to the cells instead.
“They appear in a way that they normally never would,” Greco said. “It immediately gives the impression that this person has already been convicted.”
The digital divide for immigrants also presents a significant disadvantage in virtual hearings.
Roopal Patel, an immigration attorney for Legal Services NYC, has a client from Honduras who had an asylum hearing scheduled for September, which was recently pushed to December.
Preparing for the virtual hearing has been an ongoing challenge, Patel said. Her client doesn’t have a smartphone, doesn’t speak English and has “almost no digital literacy,” she said.
The client also lives in a homeless shelter with limited internet connection and could be relying on her child’s tablet, which was only provided by the city’s Department of Education when schools closed from the pandemic.
If the trial went on in September as originally planned, it’s likely that she would’ve faced deportation for missing her trial because she doesn’t have the resources or digital literacy to attend it, Patel said.
She’s tried sending her client links to do test runs for video calls for Skype for Business, but hasn’t had any success. And unlike schools making sure students have resources to attend classes online, the courts threatening to deport their parents haven’t provided the same help.
“They just left us to our own devices,” Patel said. “I don’t think any of my clients have the capacity on their own to do remote video conferences. Most of them lack the technology.”
And even when the technology is there, there’re still a handful of technical difficulties that both lawyers and defendants have had to deal with.
New York City has been using Skype for Business for its preliminary hearings. To display a video with audio on the service, you need to embed the clip into a PowerPoint presentation, then share the file, Greco said.
A court case in Moscow where an activist pleads for a appeal against his four-year prison sentence through a video conference.
Then there’s limitations on how big the video file can be and what type of video formats can be embedded in PowerPoints. That becomes another problem when many surveillance camera systems have their own formats.
Other issues include defendants being reliant on cameras from the prisons, which don’t have screens or microphones that are readily apparent. The Surveillance Technology Oversight Project whitepaper highlighted a study finding that 45% of immigration removal hearings suffered from connection issues in 2005.
“It’s been a mess, especially with Skype for Business. None of these systems were designed to be used for virtual court proceedings,” Greco said. “I’m not so sure any significant court proceedings should be done virtually.”
In other cases, the issues come from defendants not understanding how to use the technology. For defendants held in New Jersey’s immigrant detention centers, they’re reliant on the cameras and internet connections provided by the jail.
It’s lead to issues where defendants only have their foreheads showing up on camera without realizing it, Byers said.
“They can’t see themselves, so sometimes that’s a problem,” she said.
In a normal trial, defendants have plenty of opportunities to speak privately with their attorney. They can whisper sitting next to them, make facial expressions that no one else can see, or speak directly to them in a separate room.
Virtual hearings have eroded that attorney-client confidentiality, lawyers said.
With everyone in the same conference call or video meeting, everything can be heard by all parties involved, including the prosecution.
Lawyers frequently need to confer with their clients to answer any questions they might have and arranging a private chat or new video meeting every time it comes up is not sustainable, they said.
“Trying to communicate with your client in a way that no one else can hear is basically impossible,” Greco said. “I would normally discuss what’s going on with my client so they can understand everything.”
Some courtrooms have set up breakout rooms or direct instant messages between the attorneys and their clients, but it’s not a sufficient replacement for lawyers. For starters, there’re concerns about who has access to those chat logs or video recordings, or how they’re stored and secured.
“There’s a lack of transparency on how widely accessible it is and when people can be viewing very sensitive information,” Legal Services NYC’s Patel said.
When people need to testify from home rather than a closed-off courtroom, they often have to discuss traumatic experiences with the possibility that there are people around able to eavesdrop.
If it’s a virtual trial where the defendant is still in a detention center, it’s almost a guarantee that other people will be able to hear.
Byers said she’s had clients tell her that they can hear other people during their trials. The testimonies that can save their lives can also put them in immediate danger if they don’t have proper privacy.
“With clients seeking asylum, many that come up involve personal stories like someone’s sexual orientation, or if they’ve been threatened by a gang,” Byers said. “It could be potentially dangerous for other people to hear.”
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