Just two weeks after Arizona Gov. Doug Ducey declared a state of emergency, the state has registered 326 confirmed cases of COVID-19, and five fatalities. In the process of grappling with a crisis that affects Arizonans at every level, there have been monumental changes in the state’s courtrooms—especially in Maricopa County, the fourth largest in the nation.
While the changes are critical to protect the health of the thousands of people who enter our courthouses daily, they may also set a new template for the operations of our state justice system. They equate to a sea change in courtroom procedures instituted, literally, overnight.
The changes began with an Arizona Supreme Court order to state courts to implement social distancing policies in response to the COVID-19 pandemic, and they culminated with sweeping new guidelines issued last week by the Superior Court of Maricopa County that modified appearance policies for criminal hearings.
They will have far-reaching effects. Maricopa County, consisting of the greater-Phoenix metro area, is home to over four million people. County courts process over 120,000 cases a year, which represent over 60 percent of the case filings in Arizona.
Maricopa County’s new policies drastically reduce the need for in-person appearances in Superior Court. All but the most crucial criminal hearings will be termed “non-appearance hearings,” which in effect means that all but a selected few criminal hearings will now be conducted virtually or by motion.
This step is completely unprecedented in the history of Arizona’s justice system. It marks a dramatic move by the Maricopa County Superior Court to limit the amount of in-person contact for criminal cases.
The modified appearance policies were conceived as a temporary measure to reduce the risk of contracting COVID-19 for staff, the judge, lawyers, defendants, witnesses, and family members.
The order affects the entire range of meetings that take place in Arizona courthouses every day. That includes Initial Pretrial Conferences), Comprehensive Pretrial Conferences, Complex Case Management Conferences, and Status Conferences.
Instead of appearing in person, the attorneys involved in what are now called “non-appearance hearings” have been ordered to file written statements to the Court. A party may ask the Court to convert the non-appearance hearing to an appearance hearing, but the lawyer seeking the order must provide the Court with a valid reason for doing so, and it is within the judge’s discretion to decide whether to grant the motion or not.
Considering the nature of the coronavirus emergency, there is a clear preference for non-appearance hearings.
The only hearing that requires an appearance of any kind is the final pretrial management conference, usually the last status conference in a criminal case in Arizona prior to a jury trial. However, the courts have been conducting even these hearings by telephone.
Short-Term Solution or Long-Term Alternative?
So far the measures seem to be working well. They address the need for social distancing without interfering with the efficient administration of justice.
The Maricopa County Superior Court reports that its in-person attendance dropped by 40 percent last week. A number of deputy county attorneys have told me that things are going smoothly from the State’s standpoint.
Compare this to the perennial overhauls to the rules of criminal and civil procedures. Such overhauls are hardly ever as far-reaching as the ones instituted last week; yet they are always preceded by months of discussion and continuing legal education seminars to prepare practitioners for the relatively minor shifts in procedure.
The fact that Maricopa County had adapted so quickly to the changes imposed in response to the new coronavirus should be commended. It’s a testament to the resilience of the legal profession, despite the common perception that lawyers are slow to respond to change.
The ability to quickly adapt may also be a testament to the efficacy of some relatively recent changes in the way the Maricopa County Attorney’s Office handles its cases.
Five years ago, the Maricopa County Attorney’s Office—to much institutional griping and moaning by the rank-and-file prosecutors, myself, at the time, included—made its caseload entirely paperless. Rather than trucking reams of paper files to court every day, prosecutors put their files in the cloud and were able to access all relevant case information digitally.
The ability to work remotely is one reason for the fairly effortless transition to the crisis-inspired changes. Most prosecutors are now easily able to telecommute.
As a defense attorney, I haven’t seen any adverse effects on my ability to represent clients. I often thought that the numerous status conferences that took place in the courtroom before trial could just as easily be accomplished remotely anyway.
The mornings I spent attending court hearings normally consisted of multiple hours of logistics and waiting—between going down to the courthouse, checking in, and waiting in line for my case to be called. All of this, so that I could spend a couple of minutes having a substantive conversation with the judge or prosecutor about my case.
The forced telecommuting that we are now experiencing, therefore, seems to represent an actual increase in efficiency. Whereas an in-person attendance on average might take three hours of my time, a telephonic appearance that performs the same function may now only take me 30 minutes or less.
I’m hoping that the powers-that-be in charge of Maricopa County’s Court System will consider extending some aspects of these emergency orders into long-term procedural changes.
And I’m guessing a lot of my colleagues in other states might feel the same about the potential added efficiency such changes might bring to their work.
Of course, in other areas, the temporary orders are not sustainable—on both practical and constitutional grounds. The grand jury has been suspended and the seating of new petit juries has been postponed until at least the end of April. It will be interesting to see how this will play out in practice as the early summer begins.
In order to ease the anticipated pressure on the court system caused by what is certain to be a backlog, the County Attorney’s Office has announced that it will be easing its charging policies to focus on charging more serious cases.
When I was working at the county during other periods of high caseloads, there was an incentive for prosecutors to grant policy deviations in order to “move cases.” I suspect that we will see something similar in the months ahead, which could prove to be a windfall for some criminal defendants.
Ultimately, when the COVID-19 crisis has been resolved and things in the court system go back to business-as-usual, it may be interesting to see whether the courts and practitioners will see any long-term potential to some of the emergency procedures being implemented now.
After getting a taste for more expansive telecommuting, the legal system might be loath to abandon some of the efficiency of the new methods, once the crisis that precipitated them has passed.
Stewart Salwin is a criminal defense attorney with the Salwin Law Group PLLC in Scottsdale, Az. He served as a prosecutor with the Maricopa County Attorney’s Offfice. Check out his blog here. He welcomes comments from readers.