Mimi Brill, Windham County’s supervising public defender, remembered one remote court hearing that neared catastrophe.
The arraignments were proceeding as normal, moving briskly from one incarcerated person to the next, she recalled. As is typical, the hearings were held from prison, and some people were expected to be released, while others would remain behind bars.
The judge called a man’s name, Brill said, and he appeared virtually from a cinderblock room. But as the brief hearing was wrapping up, the man interjected.
“At the end he spoke up and said, ‘Wait, that’s not me,’” Brill recalled.
The person on the screen was expected to remain incarcerated. The one whose name the judge called would later be released. The mix-up almost sent the wrong man back onto the street, and kept a mistaken man in jail.
“That was really concerning,” Brill said. “That could’ve been a disaster had he not been this honest fellow.”
The incident is an extreme example of the pitfalls of Vermont’s remote court hearing system.
Expanded during the Covid-19 pandemic, remote access allows defendants and others to participate in certain court hearings from home or prison, depending on their circumstances.
Stakeholders on all sides of the judicial process — attorneys, judges, sheriff’s deputies and corrections staff — agree that remote access is useful for some hearings, particularly those that deal more with procedure than substance. In-person hearings are still the norm for trials and hearings involving evidence.
But five years in, virtual hearings now make up about half of all hearings, according to the Vermont Judiciary, which oversees the administration of the state court system. And the prevalence of remote proceedings is wearing on those involved. Its critics say the system, designed to ease access to the courts, is in fact doing the opposite.
“It’s a huge shift in our court system,” Isaac Dayno, the Department of Corrections’ executive director of policy and strategic initiatives, said in an interview. “It’s a more Orwellian form of justice.”
‘Neither effective or efficient’
Before the Covid-19 pandemic, Vermont’s court system had experimented with some remote hearings. But as the state went into lockdown, remote access became a necessity.
And long after emergency pandemic measures came to an end, the practice has persisted.
An overarching set of civil rules governs remote hearings in Vermont, and judges can set “standing orders” that fine-tune operational procedures in specific courtrooms, creating nuances that vary from county to county. A notice of hearing, which schedules a court date, typically specifies whether the hearing will be held in person or remotely.
There is broad support among both prosecutors and defense attorneys for using video for hearings involving procedure and scheduling. The remote option can save travel time and facilitate access for people without transportation or who can’t risk missing work. It can also be helpful for crime victims, prosecutors say, who might not want to see a perpetrator in person.
Joshua Bedard is incarcerated at Southern State Correctional Facility in Springfield. He said he likes remote court hearings because they prevent the corrections department from shuffling him between facilities for court dates.
“DOC would have shipped me all over the state from SSCF to Newport and back to SSCF,” he said.
But public defenders have argued that remote court interferes with their ability to form relationships with clients and drags out the early stages of court cases. And corrections officials say the remote format often makes it challenging for defendants to actually understand what’s happening in a hearing.
Matt Valerio, Vermont’s defender general, said he periodically surveys lead public defenders across the state about their top priorities. At a recent meeting, the group spoke unanimously.
“The number one thing of every single office is, ‘Do away with regional video arraignments,’” he said. “It’s neither effective or efficient, and the quality is awful.”
Arraignments are the first court appearance for someone charged with a crime. At such a hearing, a defendant may be released on bail or held in prison. Sometimes, they may choose to plead guilty, bringing the case to a swift end. Historically, arraignments are a defendant’s first opportunity to review the case against them, in coordination with their attorney.
Now, criminal defendants often beam into the courthouse from prison using a software called Webex, seeing the judge on a screen, hearing their charges for the first time through tinny speakers.
During these initial hearings, defendants face the court virtually, often without ever having talked to their attorney. Their lawyers don’t know their client’s housing options, mental health issues, connections to a community or other factors that impact the first steps in a case. In contrast, in-person arraignments allow opportunities for attorney-client communication before and during a hearing.
“It’s almost a meaningless proceeding,” Valerio said of remote arraignments. “There is no establishment of an attorney-client relationship.”
Dan Stevens, a Windham County public defender, described the mess of trying to reach a client before and during remote hearings from Southern State Correctional Facility.
“There’s one phone at Southern State for this,” he said. “There’s eight or nine attorneys fighting over this phone.”
The haphazard process means decisions that once took one hearing now require multiple court appearances, and incarcerated people are relying on prison staff to explain what’s going on.
“It’s difficult to hear. It’s difficult to understand,” said Nick Deml, the commissioner of the Department of Corrections, describing remote court hearings held in the state’s six prisons. “We’ve heard very troubling stories from our staff who are reporting this stuff.”
Those stories can sound dystopian: defendants asking prison staff to explain the outcome after a hearing is already over; courts mistaking one person for another, in one instance forcing an incarcerated person to ask prison staff, “Why were they calling me by a different name?”
Preston Lawson, who is incarcerated at the Newport prison, found himself on the wrong side of one of those mixups.
Lawson was supposed to attend a hearing related to his grandfather’s estate. Instead, prison staff brought a different man named Preston.
“I didn’t find out about it until a month later,” Lawson recalled.
Lost in the system
Adding to the complication, arraignments are now often done regionally, based on where someone is held instead of where they were charged. The Springfield prison, located in Windsor County, might facilitate remote arraignments virtually in Windsor County or Windham County court, even if the charges were filed elsewhere. Sometimes that means a defendant will be assigned one attorney at their remote arraignment but then be handed off to a public defender somewhere else in the state for the rest of their case.
In some cases, Valerio said, defendants have languished in prison without being assigned an attorney due to the hand-off process.
The defender general said he was aware of about a dozen times defendants “got lost” in the system. The additional logistics of moving from one attorney to the next increase the potential for human error. In these rare circumstances, that hand-off from lawyer to lawyer never occurs, according to Valerio, meaning people remain in jail without an attorney — up to 10 months, in one instance he recalled.
Remote court, Valerio and colleagues said, also risks diminishing the gravity of judicial proceedings for people charged with crimes. The power of looking a judge in the eyes, or walking past one’s mother while in shackles, can’t be replicated through a screen.
The physical distance makes the judicial process “very impersonal,” said Louis Tobin, who is incarcerated at Northern State Correctional Facility in Newport.
“Makes you feel like you don’t matter at all,” he said.
Prosecutors have also taken issue with remote court, though their experiences differ from county to county.
Erica Marthage, Bennington County’s state’s attorney and leader of an executive committee of Vermont’s top prosecutors, said remote hearing can be useful for the state’s southwesternmost county. For example, a defendant held in the state’s only women’s prison in South Burlington might spend 18 hours in shackles being transported to Bennington and waiting in the courthouse.
Remote access is also useful for people who aren’t incarcerated, Marthage said. Some of these Vermonters don’t have transportation, or might have to miss a day of work to come in person, she noted.
Marthage said she thinks the defense attorney and defendant should decide whether specific hearings should be held in person.
“If a defendant says they need to be here, then we need to do that,” she said.
Marthage also pointed out that in some family court hearings, people held in prison aren’t provided any access at all, neither remote nor in-person.
“Here’s a new one. If you are incarcerated and the state has taken custody of your children, you will not be transported to court for hearings on that case unless it is actually at the point of terminating parental rights,” Marthage said. “Why are we letting DOC off the hook and saying, ‘Well, you’re incarcerated, so you don’t get to appear even remotely to hear what’s happening with your case.’”
The total lack of access, the prosecutor suggested, opened the state up to potential litigation.
Marthage acknowledged a lack of staff and resources for the Department of Corrections was causing the problems but said the state needed to figure out a better path forward.
‘All of that burden has shifted’
Since the pandemic, the corrections department has effectively operated its own courtrooms. Its leader, Deml, is among the remote system’s most forceful critics.
Prison staff have facilitated remote court hearings without receiving additional resources, according to corrections leadership. Those new duties are typically undertaken by caseworkers, who traditionally help incarcerated people prepare for release. Instead, they’re serving as quasi-court clerks, with their offices, or other valuable prison space, turned into satellite courtrooms.
“All of that burden has shifted to the correctional system,” Deml said. “We didn’t have extra staff sitting around looking for something to do.”
At the Newport prison, a room typically used for volunteer programming is now holding remote hearings, limiting when the space can be used for its designed purposes.
Caseworkers’ new roles have brought hiccups, according to Zoey Paradis, who is incarcerated at Chittenden Regional Correctional Facility in South Burlington.
Paradis, who’s filed a number of civil cases against the Department of Corrections, said she’s missed or been late to hearings due to technical difficulties.
“They recently upgraded these fancy monitors for court and none of (the prison staff) know how they are used,” she said, referring to the telecommunication technology used for virtual court hearings.
And with the new set of responsibilities, caseworkers and other prison staff have stopped performing some judicial-related functions they once took on, like printing and sharing court-related documents with incarcerated people.
While on paper those omissions might sound small, some fear they affect liberty interests of people charged with crimes.
If a person is arraigned from prison for example, they might not immediately receive the charging documents associated with their docket, limiting their ability to understand the state’s case against them.
“When you have a hearing and there’s an order that’s generated, you want to be able to provide that to the person right then and there,” said Teri Corsones, Vermont’s state court administrator.
With the corrections department no longer printing, faxing and emailing documents like plea agreements and consent forms, public defenders sometimes have to drive hours across the state just to receive a client’s signature.
Both Marthage and Valerio agreed it was an issue.
“That means (public defender) Fred Bragdon from Bennington, who has, you know, way too many cases, has to drive all the way to Rutland to talk to somebody about a plea agreement,” Marthage said. “That’s the stupidest thing I’ve ever heard.”
Not only do the changes place more burden on defense attorneys, but Valerio said it slows down cases.
“I think it’s actually overall contributed to the backlog, because cases can’t resolve as quickly because of all the hoops you’ve got to go through logistically to get the simplest thing done,” he said.
‘We had to set some boundaries’
Deml, the corrections commissioner, said remote court duties are “majorly impacting” the ability of caseworkers to do their jobs.
As a result, the department has started to push back against the judiciary, limiting the hours that prisons will hold hearings, reducing the types of family court hearings they will facilitate and declining to use prison electronics for telecommunications.
“We got to a place where we had to set some boundaries,” Deml said. “There needs to be a major burden shift back to the judiciary.”
While different stakeholders agree on a number of the problems caused by remote court hearings, the solutions are more contentious.
With the function of the judicial system reliant on not just court employees, but prison staff and sheriff’s deputies for transport, the parties are involved in something of a standoff over who should do what.
Judiciary officials, for their part, say remote hearings expand access to justice and generate efficiencies for costs like transportation, saving money in the process. The judiciary is always open to feedback, leaders said, and has a collaborative relationship with not only the Department of Corrections, but also the defense bar, prosecutors and sheriff’s departments.
“As we understand it, (corrections’) position is they don’t have adequate staffing to be able to fully run the Webex hearings, provide access to the parties for paperwork, (and) there’s issues at times with communications we understand between counsel and their clients,” said Chief Vermont Superior Court Judge Thomas Zonay. “This is not a situation of the stakeholders not trying to work together.”
According to Zonay, the powers granted to judges allow for flexibility to address some of those challenges as they arise. A judge can virtually “step off the bench” to allow for confidential communication between an attorney and client, and in the middle of a remote hearing, a judge can decide all parties need to instead come to court in person, he said.
As for remote court adding to the Department of Corrections’ workload, Corsones, the state court administrator, suggested additional resources could assuage the issue.
“We certainly understand and appreciate and sympathize with the correctional facilities saying, ‘Hey, we don’t have positions that are, you know, designed for this,’” she said. “It is a burden that’s being placed on the correctional facilities that I think should be recognized and responded to.”
But Deml doesn’t see the situation as a money problem. Instead, he suggested the state could create more transportation resources — in addition to sheriff’s deputies and corrections staff already involved in transportation — to get more people to court in-person. He also argued the new responsibilities on prison staff need to be shifted back to the judiciary.
Across Vermont, 24 state transport deputies bring people to criminal hearings and court-mandated medical treatment.
The system is more complex than it sounds, according to Annie Noonan, labor relations and operations director for the Vermont Department of State’s Attorneys and Sheriffs. Historically, corrections staff have on occasion transported incarcerated people between facilities to create shorter drives for sheriff’s deputies, and court staff inform deputies of when transports to courthouses are needed.
“Is the judge giving enough notice to the court operations manager? Is the court operations manager giving us enough notice? Are we giving corrections enough notice? It all goes like this,” Noonan said. “It’s really pretty intricate.”
For various reasons, including limited corrections staffing and less than perfect communication between court employees and transport deputies, that system isn’t working like it used to pre-pandemic, according to Noonan.
“These little pieces have to be kind of woven back together properly, or the system isn’t going to work,” she said. “We’ve had situations where the transport team is like, ‘We’re already on a transport, and you know, you just sent this court order out, and we’re not here to do it.’ And then, like, the judges’ heads are exploding, and we’re like, ‘Okay, well, this is not on us.’”
But the situation is collaborative, too. Zonay said the Department of Corrections and the judiciary were able to compromise on what types of hearings prison staff would facilitate remotely. Prisons have also been flexible about the time parameters set for when remote hearings will be held, according to the judge.
“Each of the stakeholders that are part of this equation have separate and unique challenges, oftentimes dealing with adequate staffing,” Zonay said.
Facilitating remote court, he indicated, is not the jurisdiction of the courts, just like the judiciary doesn’t transport people to and from courthouses.
“They have challenges, and we can work better together by keeping open the lines of communication and trying to facilitate the timely administration of justice in a way that works for everyone,” Zonay said. “The judiciary does not control DOC.”
Read the story on VTDigger here: ‘Wait, that’s not me’: Lawyers say remote court hearings can threaten integrity of Vermont’s justice system.