A recent directive from the Lancaster County Attorney sending prosecutors back to in-person court hearings in criminal cases set off a bit of unintended friction with defense attorneys.
But by Friday, both sides sounded willing to work together to address concerns, particularly over declining decorum, brought on by defendants appearing for more court hearings via Zoom video conferencing if they aren’t housed at the county jail or in a state prison.
The hiccup started June 6, with a letter from County Attorney Pat Condon to Lancaster County’s county and district court judges: “Re: Lancaster County’s Attorney’s Office Returning to the Courts.â€
Condon said while the courts’ expanded use of Zoom hearings served a legitimate purpose during the COVID-19 pandemic for defendants who were out of custody, and continues to serve a legitimate purpose for defendants in custody, “I am of the opinion that it is time to return to best practices.â€
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He said starting with hearings next month he has directed the prosecutors in his office to appear in person for all court hearings (unless otherwise ordered by the court); to object to the use of remote technology; and to request bench warrants if defendants don’t appear in person as ordered.
It would not apply to defendants who are in custody at the county jail or in state prison awaiting trial.
They would continue to make appearances by way of remote technology, in part due to the inherent safety risk that comes with transporting inmates back and forth for hearings.
“It is ideal to have our prosecutors, out-of-custody defendants, and defense attorneys present in person before the court to ensure the administration of justice in an efficient and dignified manner,†Condon said.
He cited examples of defendants appearing remotely to avoid being taken into custody on outstanding warrants in other pending cases, appearing for court via Zoom while driving, and — in one case — appearing for court from bed.
When asked by the judge to sit up, the woman did so, exposing herself to everyone on the Zoom call, according to one attorney with knowledge of the situation.
Condon’s letter prompted a response three days later on behalf of the Nebraska Criminal Defense Attorneys Association, a statewide group of over 370 criminal defense attorneys, which said the use of remote technology to conduct hearings was critical to the courts during the pandemic.
“Because of remote technology, the administration of justice in Nebraska —and Lancaster County— continued. The use of remote technology has continued post-pandemic, for reasons of judicial efficiency and access to justice,†said Lancaster County Public Defender Kristi Egger and Tim Noerrlinger, a private defense attorney.
They said anecdotes regarding courtroom decorum should not be conflated with actual court efficiency.
“I’ve seen people come to court in pajama bottoms and slippers. I don’t know that you get decorum just by going to court,†Noerrlinger said Friday.
He said, on the other hand, remote appearances allow their clients to appear in court when they don’t have transportation or childcare or can’t take off work, or when they live out of state or can’t travel due to bad weather and they may otherwise fail to appear in court.
Requiring everyone to personally appear in the courthouse will be a burden on security, court staff and others who work at the courthouse, he and Egger said in the letter.
And, if more arrest warrants go out for people not physically appearing for court, it is likely to add costs for law enforcement and further strain the already overcrowded jail, they argued.
“If Mr. Condon wishes to change the practice of remote technology in this jurisdiction, a collaborative approach that engages all interested parties — including the courts — is more appropriate,†Egger and Noerrlinger said.
On Friday, Noerrlinger said they perceived Condon’s letter to be a pretty fundamental shift in how the courts have been operating for the last few years.
“We think it is convenient both to the bar and to our clientele to appear by Zoom, and we would hate to see that go away in its entirety,†he said.
Condon said Friday he sent out the letter just to let people know about his intention to get people back into court, back to how things were pre-COVID.
He said he was a little surprised by the response because he didn’t have to tell them anything. It’s allowed by the courts, and they could’ve just started doing it.
“It is what it is, but hopefully if it spawns talking about how can we make things better, how can we maybe come up with rules that we can all agree with, that would be great,†Condon said.
He’s talked to Egger and Noerrlinger both since and said he thinks they’re all in agreement.
Condon said he’s open to working with the courts and defense attorneys to try to come up with local rules laying out when remote hearings may be appropriate in a way that makes a clear record for the courts and potential appeals.
“That’s one of the key things, protecting the record,†he said.
Still, Condon doesn’t see Zoom as having helped the efficiency of the courts and said failures to appear haven’t gone down since the courts moved to more remote hearings. So he doesn’t think they think there is reason to think they would go up if they return to in-person hearings.
But if failures-to-appear and warrants increase, they’ll look at it, Condon said.
Even if prosecutors object to hearings going forward by Zoom, it will be up to the judges to decide.
This week, district court judges declined to discuss the matter, when the Journal Star asked what their next step would be.
Under a local rule, judges in Lancaster County may order that a court proceeding not involving testimony of witnesses by oral examination be conducted by remote technology. And, if the parties agree, any court proceeding may be conducted by remote technology, with permission of the court.
Lancaster County Sheriff Terry Wagner, whose office handles courthouse security, confirmed the number of visitors pre-pandemic averaged 300,000 a year and during the pandemic dropped to nearly half that. By 2022, it had increased to 207,000, still well below pre-COVID numbers, likely due to remote hearings.
Wagner said he wasn’t concerned by the potential shift back to more in-person hearings.
“We might have a few more people through the front door, but we’re equipped to handle that. We’ve handled many, many more people annually than we are right now,†he said. “So it shouldn’t be an issue.â€