The New Normal and the Days of DISCO?

I think that it's fair to say that those of us who practice criminal law down at the Harris County Criminal Justice Center on a regular basis are starting to sense a movement towards a return to normalcy these days.  There's an underlying feeling that's similar to riding on an airplane as it begins its initial descent towards the destination or seeing the rain starting to lighten up at the end of a long thunderstorm.  

As more and more people get their vaccines and the number of Covid cases continues to drop, we all have a sense that it is time to get back to business as usual, or at least some semblance of it.  Those of us who have been sitting at our desks and couches, fighting the good fight from the comfort of our homes or offices, will seen be trying to squeeze back into our pre-pandemic courtroom attire and actually traveling down to the CJC again on a routine basis.  For many of us, our in-person appearances are already rising in frequency, and appearing in the rickety old building no longer feels like the dangerous stealth mission into Chernobyl like it felt a year ago.

In many ways, that's a definite positive.  If I never have to go over plea paperwork with a client over the phone again, that will suit me just fine.  Arguing a motion or questioning a witness without having to deal with the staccato in and out of Zoom audio feels like a very exciting benefit that I didn't realize how much I would miss.  Having people ask me how I'm liking working for Cheryl is much funnier in person than over Zoom, and dammit, the best thing by far about going back is seeing our courthouse family again.

But there are several things that we adapted to during the pandemic that are absolutely worth holding onto, even if they are no longer part of a mandatory safety protocol.  We have learned some lessons over the past year or so about what is necessary and what may be not-so-necessary to keep the Criminal Justice World spinning on its axis.  All of it has to be balanced against a stupefyingly tremendous backlog of cases that have accumulated over the pandemic that is going to take years to sort through.  Unlike the aforementioned plane ride or thunderstorm, we are nearing the end of the equivalent of a yearlong hurricane that has left an incomprehensible amount of damage in its wake.

There will have to be a new normal for how we handle cases, and I'm hopeful that the new normal embraces some of the more positive aspects of how we adapted under Covid -- specifically when it comes to Zoom appearances and mandatory in-person appearances for Defendants.

Judges Natalia Cornelio of the 351st District Court and Abigail Anastasio of the 184th District Court have been doing research into the pros and cons and the role of Zoom as things get back to "normal."  They were kind enough to listen to my ideas, and I thought I would share them here on the blog as well.  Let me know what you think.

Prior to the pandemic, it was standard practice in the vast majority of courts that all Defendants charged with crimes personally appeared for every court date they had scheduled.   These settings were, on average, once a month and more often than not involved nothing more than the Defendant signing a reset promising to appear at the next setting.  The settings, especially on the newer cases, were generally pointless because discovery evidence (which prosecutors are required to provide to the defense attorney) wasn't ready yet.  

Without the evidence being available, no meaningful conversation could be had between a prosecutor and a defense attorney and, subsequently, between a defense attorney and his or her client.  The client's presence in the courtroom (and the already overcrowded Criminal Justice Center) was completely unnecessary -- and often counterproductive.  Defendants (who were sometimes required to maintain employment as a condition of remaining on bond) had to take off work, fight the crowds coming into Downtown and into the building, and sit there for a couple of hours waiting for their attorney to arrive.  All of this so that they could sign a reset promising to do the same thing again in a month.

Under the pandemic, all of the courts waived in-person appearances unless there was something that fundamentally required the Defendant's presence.  If a Defendant needed to acknowledge and sign bond conditions, for instance, he or she may have been required to appear.  If the Defendant was alleged to have a violation of a bond condition or needed to be present for a hearing on his or her case, it was understandably necessary for that Defendant to show up in court.

But all of those monthly status checks no longer required the Defendant to show up.  The result was a significantly less crowded building and there is no reason that needs to change.

Proposal # 1 -- No unnecessary in-person appearances by Defendants required until the completion of Discovery Exchange

Since nothing meaningful can be accomplished without discovery being completely turned over, it is both silly and oppressive to make Defendants who are out on bond to appear just to sign a reset.  It literally accomplishes nothing.  With the exception of a first appearance after bonding out to sign bond conditions, they shouldn't have to come back just because the State of Texas is running behind on Discovery.

Prosecutors (and some judges) like Defendants to have to appear in person, unfortunately.  The reason for it has little to do with Justice, however.  They know that a Defendant who ain't there can't resolve his or her case.  That Defendant won't be there to hear the totally awesome plea bargain offer that the prosecutor is planning to throw out there.  Who needs to review evidence if the offer is so fantastic, right?  The more appearances that a Defendant is required to make, the more his or her resolve to fight his case will fade.  Hopefully, they will take the time served offer just to get their employer to quit complaining about them missing work.

It shouldn't be that way.  Right now, the discovery process is painfully slow.  As I've mentioned before, the Houston Police Department doesn't even consider expediting turning over footage from Body Worn Cameras until six months after the arrest.  The backlog seems to be growing exponentially, and that slows things down more and more.  There is no articulable reason that the Defendant should be the person who has to pay the price for the delay.

The presumption should be that unless there is a specific need for the Defendant to be in court, the Defense Attorney's appearance should suffice.

Proposal # 2 --  The Age of Disco(very Compliance) Settings

For those of you who don't practice criminal law in Harris County, you may not know that the types of court settings we have carry names.  In felony cases, the setting is referred to an Arraignment (ARRG) setting prior to the case being indicted by the Grand Jury.  Once the case is indicted, (depending on the court), it moves to a Non-Trial (NTRL) setting.  Depending on how concerned a particular court is, a case may have multiple NTRL settings before moving to the Pre-Trial Conference (PTCR) setting.  This setting is generally when a Court is notifying the State and the Defense that it is time to start talking about either working the case out or setting it for trial.  There may be several of these settings too, depending on the court.

After PTCR comes a Jury Trial (JTRL) or Court Trial (CTRL) setting.  Sometimes there may be a Pre-Trial Motions (PTMO) setting if there are some legal issues that need to be resolved before trial day.

My proposal is that after the ARRG setting, the court settings become Discovery Compliance rather than NTRL.  And, as I mentioned to Judge Cornelio, we'd be missing a huge opportunity if we didn't give them the code letters of DISCO.  

While the title of a setting may not seem like that big of a deal in the big scheme of things, this new name could actually prove to be helpful.  Judges are known to get antsy about cases getting older, but if a quick glance at the docket sheet shows that it's the 5th DISCO setting, the picture becomes quite clear on what the hold up is and who is responsible for it.  There's no reciprocal discovery in the State of Texas, so multiple DISCO settings point a clear finger at who is to blame.  

In my thought process, once Discovery has been completed, the Judge makes a finding that both sides agree that there has been compliance (at least to the best of their knowledge) and the Judge has a clear signal that there is nothing to keep Defense Counsel from rationally discussing the case with his or her client.  At that point, the setting moves to Pre-Trial Conference, which serves, in essence, as a Plea or Trial setting.  If a Pre-Trial Motion needs to happen, that's no problem.  After that, it's trial time.

It streamlines the process, in my opinion.  It also insulates both the Judiciary and the Defense Bar the next time a certain publicity-seeking, blame-shifting elected District Attorney tries to put them on blast as being responsible for the backlog.  Maybe if there are documented entries showing how many DISCO settings are happening on everyone's case, there won't be so much talk of greedy defense attorneys and lazy judges.  Just sayin' . . . 

Proposal # 3 -- Defense Attorneys are allowed (but not required) to use Zoom appearances on all settings prior to Pre-Trial Conference

I ain't gonna lie.  I've enjoy the hell out of Zoom settings when there weren't substantive issues to be addressed in court.  You can get a ton of work done sitting at your desk while waiting to be called upon in a Zoom meeting.  My productivity has increased dramatically during the pandemic and that largely attributed to not having to drive Downtown, fight the elevators and the crowds, and waste my time standing around waiting to approach the judge like I'm waiting on my order to be ready at Dairy Queen.

That translates into better and more effective representation, and that benefits us all.

If an attorney would prefer to appear in person, that's no problem as long as you aren't in the 338th. I would anticipate that after a few months of normalcy, attorneys will find themselves in court more and more often because more cases will have completed Discovery Compliance.  They don't need to appear in person in one court and then speed back to the office to log on and Zoom from their computers.  That would be silly.

So, that's my modest proposal.  Let me know what you think!  Who is ready for the Age of Disco?