The Georgia Court System During a Pandemic and Judicial Emergency

Nathan Deal Judicial Center

Yesterday I had an opportunity to listen in on a meeting of the Georgia Judicial Council. Chief Justice Harold Melton led the meeting, and vacuous judges throughout the state of Georgia were in attendance.  As a person who has been critical of Georgia's judiciary, I have to report that I was impressed with the discussion.  These judges, who set policy throughout the state, seem to have a handle on the issues that will affect our court system over the next two-years.

The main issue is the balance between the safety of those who use/work in the court system versus the need of the pubic to adjudicate legal disputes.  Those needs include domestic cases, bond hearings, arraignments, motion hearings, and civil and criminal jury trials.  All of these hearings are essential functions of a working system of justice, and all of those hearings create a unique set of problems that will need to be solved in order to move forward.

How Does the Legal Community Continue to Serve the Pubic with Social Distancing?

The judges at the meeting were quite aware that social distancing may have to continue until such time that there is (hopefully) a vaccine.  What does this mean for the court system in Georgia?  It means that we are going to have to do as many hearings as possible via video.  It also means that lawyers will need to act in a more professional manner insofar as our relationship to one another. 

Professionalism?

The answer is: "Yes," fellow Georgia attorneys, we need to find a new level of both professionalism and respect.  We need to begin by setting reasonable expectations with our clients.  Level with your clients, so they do not waste time with unnecessary hearings.

A perfect example is with hearings in divorce proceedings.  Commonly, divorce attorneys use hearings to allow clients to air their dirty laundry and "get it all out."  Then, after several days in court consisting of each side explaining why their soon-to-be former spouse is a terrible person, etc., the case settles with joint custody and an equitable split of the marital assets.   Professionalism means that those attorneys need to avoid wasteful hearings in court and settle their cases in a manner consistent with how the judge would have ruled anyway.

The same can be said about criminal proceedings, which as a Georgia Criminal Defense Attorney, I have expertise.  Prosecutors and defense lawyers need to get on the telephone and work out their cases before appearing in court.  Now, to the general public, it would be assumed we are already doing this with our cases.  However, an honest discussion about cases sometimes does not happen until the night before trial.  Many prosecutors will not make their best offer unless they believe defense attorneys are serious about going to trial.  Many Georgia Criminal Defense Lawyers do not reach out to prosecutors before scheduled hearings in their cases out of laziness or because they have a high caseload.

Both of these practices are unprofessional and need to stop.  The resources of the court system are going to be extremely limited until we can have large groups of people at our courthouses again.  Case resolution before court dates must take place to allow for the limited court resources. We must use court hearings to focus on things that must go forward in the courtroom.  All members of the bar can help.  Reach out to opposing attorneys and work out your cases!

The Unique Problems of Arraignments, Calendar Calls, Pleas, and Jury Trials:

Large gatherings of people at our courthouses are the biggest concerns. Jury trials, calendar calls, and arraignments are the hearings that create the largest crowds. That being said, there are smarter ways to handle arraignments, calendar calls, and plea hearings to limit the number of people coming to court.

Arraignments:

In Georgia, defendants, usually through a person's Georgia Criminal Lawyer, can waive their scheduled arraignments and enter their initial pleas.  The problem is that some people do not hire counsel or need to apply for court-appointed attorneys while at their arraignments.  This causes large numbers of people to appear at their arraignments without an attorney.

The way this problem can be addressed is to provide a waiver of arraignment form to all people scheduled for arraignments.  We can also specifically encourage people to seek representation before arraignment.  Another option is to stagger arraignment calendars, calling in 10 people at a time throughout the day or even the week.

Finally, we can provide indigent defendants information on how to apply for a public defender before their arraignment.  Then, public defenders can waive arraignment on behalf of their clients.

Calendar Calls/Plea Hearings:

By the time a defendant should appear at a calendar call or a plea hearing, he or she should have a Georgia Criminal Defense Lawyer. In consideration of our current circumstances, calendar calls and plea hearings can be temporarily eliminated.  A calendar call is where you inform the court of the status of the case. The hearing involves stating the defendant's intention to either take the case to trial or to settle with a plea bargain.  These announcements can be made via email.  Policies on continuances can be made in advance, allowing each side two resets without question.  If a further extension is needed, then a video hearing can be set up.  There is no need to do these hearings in person.

If the prosecutor and defense attorney reach a plea agreement, then a hearing can be scheduled. Those hearings can be staggered throughout the day.  I recommend having an entire week allowing attorneys to come in at any time to enter a plea.  Dependent on the plea agreement, a particular week can be assigned to enter the plea.  Then, defense counsel would contact the judge's office, and the judge's case manager could let the attorney know some of the times available.  Instead of everyone coming in at 9 a.m. and waiting around, specific times can be given with cases scheduled and staggered throughout the day.  Your plea would be at a particular time, and you would be expected to arrive on time with the paperwork filled out. There would be a requirement to notify the court of how much time is needed. And on top of that, a notification requirement if any particular issues need to be addressed. We can do this!

Jury Trials:

This is the kicker, because people have a right to have their cases decided by a jury, and many people are in custody awaiting their day in court.  The right to a jury trial is fundamental and guaranteed by the United States and Georgia Constitution.  The right dates back to the Magna Carta.

The general public will be rightly concerned with coming to court during a pandemic.  To begin with, people have been away from work already, and attending court could cause problems with their jobs.  Also, the idea of having 100 people gather in a jury assembly room is no different than the risk of attending a baseball game.  I have been to the DeKalb County Jury Assembly room as a potential juror, and let me tell you, social distancing was not an option.

We may need to assemble jurors in small groups in multiple courtrooms.  Then, we may have to bring them in court in small groups and question them while they sit in the seats, usually allowed for spectators.

During the trial, the courtroom can be re-arranged. The jurors can sit in the audience area, and the attorneys face the audience.  The judge could set up a temporary bench on the side of the courtroom, where court staff and witnesses can also line that wall.  This way, everyone can be kept more than six feet apart.  None of this is ideal, but it may be the way we can move forward with necessary trials.

One last thing, it has been long settled that Georgia Courtrooms are open to the public.  This sunshine is the check against judicial tyranny and cannot be limited during these extraordinary times.  All judges should begin to broadcast proceedings on the internet for the public to see.  Each courtroom can have a channel online that can be accessed by the public.

These are challenging times, but we can all help each other to move forward the best we can.  I look forward to getting back to work!