Courts finding ways to adapt to COVID-19 pandemic

Listen to this article

First the good news: Verdicts are being reached in the Minnesota counties where trials have restarted under strict COVID-19 social distancing rules. But there haven’t been any “showstopper” verdicts just yet.

More good news: Both attorneys and jurors, impressed with the precautionary steps and frequent cleanings insisted on by the Judicial Branch, report they feel safe going to court. And jurors have thus far shown little reluctance to appear for duty.

That’s all according to a presentation heard by the state’s Judicial Council on July 16.

“We had previous concerns that jurors would not be showing at the rates we would need — that we’d have to call more jurors,” said Grant Hoheisel, the Judicial Branch’s research and evaluation manager. To the contrary, he said, jurors are appearing for pilot-trial duty at rates comparable to pre-pandemic times.

Now, for the bad news. The statewide felony criminal case backlog has grown by 26% since the pandemic was declared in March, Hoheisel said, citing Judicial Branch data retrieved on July 7. That’s about 6,000 additional criminal cases clogging the court system than normally would have been the case pre-COVID, he said.

The other criminal case types are seeing backups, as well. Backlogs have grown by 32% for gross misdemeanors—an extra 4,000 cases above the norm. They grew 52% for misdemeanors during that time, Hoheisel said, about 16,000 extra cases.

Meanwhile, the civil case backlog has risen 16% during the pandemic, he said, and pending cases are up 20% in probate court. While those represent surges, Hoheisel acknowledged, they are not as dramatic as those seen in the criminal arena.

But pending cases aren’t the courts’ only pandemic challenge. The Judicial Council also heard reports about Minnesota defendants failing or refusing to appear for remote hearings. And attorneys have been making contradictory demands — some pressure the courts to hear their clients’ cases in person, often for constitutional reasons; others demand remote hearings to protect their clients’ safety.

“It’s just a really hard issue,” Pine County District Judge Krista K. Martin told Judicial Council members. Martin is chair of the state Judicial Council’s Other Side Work Group, the committee that is helping the branch figure out how to live with COVID-19.

“Lawyers are telling us different things about how they want to make these appearances,” Martin said. “So it’s a little bit of a struggle.”

Altogether, so much caseload has piled up that simply returning to pre-pandemic, pending-case volumes would take 35,000 hours of additional court time — roughly 100 hours of extra work per judge, Hoheisel said. That includes about 28,000 hours for criminal cases alone, an average of 80 extra hours of work per judge.

Or at least, that is how long it would take were things operating normally. But they aren’t, Hennepin County Court Senior Administrator Sarah Lindahl-Pfieffer pointed out. With mandated cleaning between each witness’ appearances and everything else that the strict COVID-19 guidelines require, trials are moving more slowly than usual.

Martin said that, anecdotally, she is hearing the same thing from judges, but hard recent data is not yet available. “But it’s something that I think we’re all aware of and have to take into consideration as we start working on strategies,” she said.

More problems

Minnesota’s courts closed to new cases almost completely after the pandemic hit Minnesota in March, but they began holding pilot jury trials under strict preventive guidelines in early June. By June 15, six counties had received permission to take part in pilot jury trials. Since July 6, other counties have been permitted to join that list, as they’ve demonstrated that they’ve met courthouse safety benchmarks.

Some problems that courts face getting back to business elude easy solutions. For example, Martin said, one simple answer to mounting caseloads is simply to add hearing calendars for case types where there are heavy backlogs. Judge time can then, theoretically, be taken off case types — like civil commitments and family law cases—where pending-case spikes are not being experienced.

The problem with that, Martin said, is that both prosecutors and attorneys say they can’t staff the additional calendars.

“Our justice partners are saying we just can’t be in those courtrooms and have lawyers there for extra calendars,” Martin said. “So that’s really been very difficult. It’s stymied our progress.”

Another problem that has surfaced since trials restarted, Martin said, is that the urgency parties have typically felt to complete plea agreements has evaporated.

“Unfortunately, now we just don’t have that kind of pressure of a jury trial looming,” Martin said. “Everyone knows that even if we set it for trial, it’s going to be really hard to get the case heard. And so I think that becomes a difficulty in getting these cases resolved.”

Still, there are some upsides to the pandemic, Martin told the council. Judges are not traveling as much, either for conferences or, in geographically large districts, between counties for hearings. That actually frees up more time for hearings, she said.

The same is true for attorneys, who find it much easier to move between remote hearings than to drive from courtroom to courtroom, she said. Plus, hearing times tend to be more certain for remote hearings than the in-person variety, she said.

“I think our justice partners in civil, family and child protection are really liking that they have a time certain,” Martin said. “Those folks aren’t just sitting around the courtroom, which has long been a complaint that we’ve heard from our court customers.”

Lessons learned

As counties work to come to terms with the pandemic, some possibly sharable lessons are being learned, Martin said.

For example, the growth of pending cases is not a universal problem, Martin said; a few counties actually have seen reduced backlogs. Those counties, she said, tend to have added calendars and more remote hearing-officer appointments.

Some districts have turned to judge specialization to help deal with their backlogs, Martin said. In one county — she didn’t say which one — instead of having a single judge handle a felony assignment from the omnibus hearing all the way to sentencing, judges get assigned particularized tasks.

A judge, for instance, might handle Rule 8 civil pleadings on one day and omnibuses the next. Another might be assigned to do all the signings, she said. “It makes it easier just calendar-wise there,” she said.

Other districts have developed creative ways to tackle communication barriers. For instance, Martin said, one county has collected its old laptops, refurbished them and placed them in “Zoom rooms.”

That allows people who lack Internet access or smartphones to make court appearances inside the courthouse, safely and with social distancing, she said.

Coming up

In upcoming Judicial Council hearings, the Other Side Work Group is expected to report back to members on:

• A feasibility review on a potential expanded use of hearing officers to address minor criminal backlog.
• A possible follow-up meeting with state criminal justice partners to develop ways to better collaborate and communicate.
• An anticipated increase in unlawful detainer filings, stemming from a recent tweak to the governor’s anti-eviction executive order. “We’re hoping it’s not as dire as perhaps everyone thinks it’s going to be,” Martin said.
• Continued analysis of possible transitional strategies, including online dispute resolution and the use of adjunct officers.