Summary
discussing the importance of conducting contested hearings at which testimony or evidence will be presented in person
Summary of this case from In re GreenOpinion
SC: 165010 COA: 357302
07-14-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Lamount GOREE, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the September 22, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (concurring).
I concur in the Court's decision to deny leave to appeal. I write separately to highlight the difficulties caused by the use of Zoom for an evidentiary hearing in this case, which are illustrative of the broader problems caused by our overreliance on videoconferencing technology during the COVID-19 pandemic. The case serves as a cautionary tale about the importance of conducting hearings in person, particularly those involving the testimony of witnesses or the introduction of evidence.
Judge MURRAY ’s concurrence details the numerous technical and other problems that occurred during the evidentiary hearing in this case, including participants forgetting to unmute their microphones and the video feed of a participant either turning off or freezing. These issues should not come as a surprise—as I have expressed before, many courts and participants in court proceedings lack the resources to comply with our virtual hearing mandates. Therefore, the quality of services provided by the court system has inevitably—and unnecessarily—declined.
See Order Retaining, Further Amending, and Rescinding In Part the Michigan Court Rule Changes Adopted July 26, 2021, 510 Mich ––––, –––– (August 10, 2022) ( Viviano , J., dissenting); slip order at 32, 36 (expressing my grave concerns about the negative impact this Court's virtual hearing mandate would have on the quality of court services due to the resource limitations of courts and litigants).
But particular aspects of this evidentiary hearing are especially concerning. First, on multiple occasions defense counsel was unable to effectively advise his client on appropriate conduct before the court—likely because he was not physically seated next to his client in the courtroom. Defendant made repeated outbursts during the proceedings, sometimes attempting to explain his version of events. Those types of outbursts can be particularly problematic for a defendant in a criminal case, as the defendant—who typically has no legal training—may inadvertently say something incriminating. When defense counsel is seated next to his client, he has a better chance of heading off an interruption to the proceedings if his client starts to speak. But when the participants are all appearing from different locations, all the defense attorney or court can do is attempt to interrupt the defendant and tell him to stop speaking. Indeed, that is precisely what occurred during the evidentiary hearing in this case.
Second, defendant was at work when he testified as part of the hearing and admitted to "multi-tasking." Both the court and his attorney had to tell him not to walk around during the proceedings. For an individual accused of a crime, court proceedings are a significant event that may affect that person's liberty. Being physically present in the courthouse and courtroom helps reinforce the seriousness of the proceedings. And it helps to keep the participants’ sole focus on the proceedings instead of allowing them to be distracted by their surroundings. Indeed, the trial court would never have had to remind defendant that "[t]here's no multi-tasking in court" or "[y]ou are in court as if you were in this building" if the evidentiary hearing had been held in person.
See id. at ––––; slip op. at 27.
See id. at ––––; slip op. at 27-28.
Third, defense counsel had repeated connectivity issues. His feed froze during his client's testimony, and he was disconnected completely during the trial court's ruling, which forced the trial court to repeat a portion of its ruling. In order for an attorney to render effective assistance of counsel, it is crucial that the attorney actually be present for the proceedings. Fortunately, the trial judge in this case quickly recognized when defense counsel's feed froze and when he became disconnected, so the proceedings were stopped to allow defense counsel to reconnect. But in a proceeding where these problems go unobserved, connectivity issues may lead to an attorney being unable to place an objection on the record or missing key testimony by a witness.
I also remain concerned about the impact of our virtual court mandate on people who, for reasons beyond their control, remain on the other side of the digital divide. See generally North Carolina Department of Information Technology, What Is the Digital Divide? , < https://www.ncbroadband.gov/digital-divide/what-digital-divide> (accessed July 10, 2023) [https://perma.cc/G3ZU-7DX7] (defining the digital divide as "the gap between those who have access to technology, the internet and digital literacy training and those who do not"). A Pew Research Center study noted "that 24% of adults with household incomes below $30,000 a year don't own a smartphone and 40% of those with lower incomes don't have home broadband services or a computer." Hanna, WhatIs, Digital Divide < https://www.techtarget.com/whatis/definition/digital-divide> (last updated August 2021) (accessed July 10, 2023) [https://perma.cc/XY5K-B4XS]. In addition, "overcoming the digital divide has not gotten easier, particularly in the aftermath of the COVID-19 pandemic." Id. As the author explains, "[t]he reality of a separate-access marketplace is problematic because of the rise of services such as video on demand, video conferencing and virtual classrooms, which require access to the high-speed internet connections that those on the less-served side of the digital divide cannot access and/or afford." Id.
The problems that occurred in this case are just a sampling of the negative effects that the use of videoconferencing technology can have in criminal cases. In addition to problems with the technology itself, the use of videoconferencing technology alters key aspects of the proceedings, often to the defendant's detriment. The interpersonal connection that would otherwise normally exist between the judge and courtroom participants is lost, at least to a degree, when sentencing is held via videoconferencing technology.
See Heinsch et al., Death Sentencing by Zoom: An Actor-Network Theory Analysis , 46 Alternative L. J. 13, 15 (2021). See also People v Heller , 316 Mich App 314, 319, 891 N.W.2d 541 (2016) ("[I]n the felony sentencing context, [videoconferencing technology] is simply inconsistent with the intensely personal nature of the process. After all, ‘[s]entencing is the point where the heart of the law—and its human face—is most clearly revealed.’ Weinstein, The Role of Judges in a Government Of, By, and For the People: Notes for the Fifty-Eighth Cardozo Lecture , 30 Cardozo L. Rev. 1, 179 (2008). Sentencing by video dehumanizes the defendant who participates from a jail location, unable to privately communicate with his or her counsel and likely unable to visualize all the participants in the courtroom. Moreover, a courtroom ‘is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers[.]’ Estes v Texas , 381 U.S. 532, 561, 85 S Ct 1628, 14 L Ed 2d 543 (1965) (Warren, C.J., concurring). The courtroom setting provides ‘a dignity essential’ to the process of criminal adjudication. Id. Isolating a defendant from that setting during what may be the most decisive moment of his or her life clashes with the judge's duty to acknowledge the humanity of even a convicted felon.").
The use of videoconferencing technology can be particularly problematic when defendants are not physically present in the same location as their attorneys. In addition to attorneys being unable to prevent or stop an outburst by their clients, being physically separated makes it harder for defendants to confidentially communicate concerns with their attorneys in real time or raise additional questions that the defendants think should be asked. Attorneys have confirmed that the widespread adoption of remote proceedings due to the COVID-19 pandemic negatively affects client communication. Additionally, when attorneys do not appear from the same physical location as their clients, it has a detrimental effect on the attorney-client relationship. An attorney's decision to appear from a location different from that of a client could even give the impression that the attorney is uninterested in the client's case, which may affect the outcome of the proceedings.
See Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant , 78 Tul. L. Rev. 1089, 1141 (2004) ("[T]he remote defendant whose attorney is in court cannot rely on the normal attention getting device of speaking quietly to counsel or touching counsel for attention; this separation makes it more difficult for the defendant to confer with counsel.").
See Benninger et al., Virtual Justice? A National Study Analyzing the Transition to Remote Criminal Court (Stanford Criminal Justice Center, 2021), p. 9. The report, which was focused on remote proceedings in criminal cases, provides the following information based on a survey of 240 defense attorneys across the country:
Two-thirds of respondents (66.3%) agreed or strongly agreed that the shift to virtual proceedings hurt client communication. Among the attorneys who agreed or strongly agreed that attorney-client communication has been hurt, 81.1% reported that the shift to virtual proceedings inhibited their ability to engage in confidential conversations with their clients; 93.7% reported that the shift created difficulties building relationships with their clients; 83.7% reported that the shift adversely impacted attorneys’ ability to share discovery with their clients; 67.9% reported that the shift made it more difficult to maintain contact with their clients; and 14.5% reported another difficulty. [Id. at 9.]
Criminal Justice and Videoconferencing Technology , 78 Tul. L. Rev. at 1129 ("Often, when videoconferencing is used, the attorney is in court and only the defendant appears by video. This arrangement inevitably detracts from the attorney-client relationship. Being separated from counsel profoundly changes the defendant's experience. The human interactions that foster a relationship of trust are muted by the technology. The separation of attorney and client is likely to contribute to the already pervasive problem of marginal or inadequate defense representation.") (citations omitted).
Cf. Saxe & Kuvin, Notes on the Attorney-Client Relationship: A Psycholegal Overview , 2 J. Psychiatry & L. 209, 210-212, 216 (1974). Saxe and Kuvin explain that it is important for attorneys to be aware of their "feelings" toward their clients and how those feelings manifest in the attorneys’ actions in the courtroom. Id. The authors provide the example of an attorney who hastily leaves the courtroom, leaving his client alone, as an action that may give an impression that he is uninterested in his client's case. Id. at 212. Surely an attorney who—at least to the observer—gives the sense that he cannot be bothered to personally appear in court alongside his clients in the first place conveys an even greater sense of disinterest. With respect to the effect on the observer, such as a sentencing judge, the subjective intent is irrelevant; what matters is the appearance of disinterest. The attorney's attention may also be diverted—and level of service diminished—by an attorney's attempt to handle multiple hearings in multiple jurisdictions over the same time period. Although efficiencies may be gained by the use of virtual hearings, they should not come at the expense of diluting the quality of the legal services an attorney provides to his or her client.
In conclusion, while videoconferencing technology should be used in the discretion of our trial courts when it aids in the administration of justice, the present case is just another of many examples demonstrating that contested evidentiary hearings should never be conducted using videoconferencing technology absent a compelling reason to do so and consent of the court and the parties. At the time the evidentiary hearing was conducted in this case, Administrative Order 2020-6 required judges "to make a good faith effort to conduct proceedings remotely whenever possible." Since then, MCR 6.006 has been amended to generally preclude videoconferencing technology from being used in proceedings in which "testimony of witnesses or presentation of evidence may occur...." Now that the court rules once again provide trial courts with discretion to require evidentiary hearings to be conducted in person, I share Judge MURRAY ’s expectation that judges and lawyers across the state will understand the importance and benefits of conducting such hearings in person and insist on doing so going forward. And to the extent that our current court rules allow it, I encourage judges, lawyers, and parties to hold hearings in person for all court proceedings unless the court and the parties agree that a virtual hearing can be held without negatively affecting the administration of justice.
Administrative Order 2020-6, 505 Mich. cxxxi, cxxxii-cxxxiii (2020).
Bernstein, J., joins the statement of Viviano, J.