Concerns about public access to courts and preserving the transparency of proceedings are emerging as New York's courts begin to increase the number of virtual appearances via videoconferencing and phone during the coronavirus pandemic.
Starting Monday, the court system will take steps to open remote access for nonemergency pending matters that include felony criminal cases, according to a memo from New York Chief Administrative Judge Lawrence Marks.
But state courts spokesman Lucian Chalfen confirmed that the plan for more virtual court conferences doesn’t include any provision for the public or press to obtain remote access, and that also is not currently under consideration.
Advocates for open courts and the media say the increase in virtual proceedings could therefore have a chilling effect on the transparency of the system, something that legal organizations also are watching.
“Reporter access to court proceedings is essential in a democracy,” said Claire Regan, president of the Deadline Club, the New York City chapter of the Society of Professional Journalists.
It’s understandable that the New York court system must move into virtual operation during the current emergency health crisis, Regan added.
“But journalists should have the same access now as they did before the crisis. The public’s business, especially the judicial process, must be conducted in the open,” she said. “We call upon the New York State Unified Court System to make reporter access a priority, even under these circumstances.”
Virtual proceedings began last month in New York for essential and emergency conferences as an effort to decrease courthouse foot traffic during the pandemic.
In contrast with New York, officials in the federal courts system have said the public and media organizations can have remote access to certain criminal proceedings conducted by video conference or teleconference during the COVID-19 national emergency.
Federal judges also can authorize public and media access to electronic civil case proceedings.
In New York, members of the public and media can go to state courthouses “as long as the social distancing protocols are observed” to watch video proceedings on a monitor as they happen, according to Chalfen.
“The purpose of our going virtual is for the health and safety of all involved in the proceedings … All other protocols remain the same,” the state courts spokesman added.
Clerks working in courthouses where operations have been consolidated monitor video conferences from screens in courtrooms.
The schedule for criminal cases, which is accessible by the public on nycourts.gov, will continue to be updated, according to Chalfen.
Gregory Grizopoulos, incoming president of the Criminal Courts Bar Association of Nassau County, said post-arrest virtual arraignments already have cut down on the amount of confidentiality between attorneys and clients.
“Nothing replaces having the defendant in the courtroom during a conference, with access to the public to be able to see what’s going on there,” he said.
Grizopoulos said judges and attorneys have off-record conversations during most cases — discussions that now could happen remotely — and a balance is needed between transparency and the ability to resolve a matter.
“I’m worried that this could be a slippery slope, but if it helps a client move a case forward that’s a good thing. But that’s the exception to the rule,” he added of the increased virtual proceedings.
Nassau County Bar Association President Rick Collins said the courts system has “never had to deal with a pandemic like this” and fortunately “technology exists to support virtual court appearances” to move cases forward.
“But the public perception of integrity in the courts is also of great importance, and that requires transparency and media access to court proceedings. Keeping the courthouses open so that members of the public and the press can watch court proceedings by video maintaining a safe social distance is an effort to balance the relevant concerns,” Collins said.
He added that his organization supports “exploring on an ongoing basis whether better methods exist or can be developed to improve this balance.”
Brendan Brosh, a spokesman for Nassau District Attorney Madeline Singas, said his office “will continue to collaborate with the courts to ensure safe, efficient and open operations during this challenging time.”
Lin Weeks, a staff attorney with Reporters Committee for Freedom of the Press, said for the public and the media to have meaningful access to the courts, they need to know when proceedings are happening and be able to access them — and court records — safely.
“Right now, it seems like a safe way to do that is to make those things available to people in their own homes,” added Weeks, whose Washington, D.C.-based organization provides legal resources to protect First Amendment freedoms and journalists’ newsgathering rights.
“Open judicial proceedings are part of a free and open society … The presumption of public access to the courts in New York comes from the U.S. Constitution and the New York Constitution and the common law tradition. We’re obviously in uncharted territory here but in some ways that makes it even more important for the public to know what’s happening in the courts,” he added.