Can the New England News Media Attend “Virtual” Court Hearings? A Crowdsourced Guide to Access in the COVID-19 Pandemic (Updated 4/14/2020)

PUBLIC RESOURCES · April 14, 2020

Can the New England News Media Attend “Virtual” Court Hearings?

A Crowdsourced Guide to Access in the Covid-19 Pandemic

 

In response to the Covid-19 pandemic, courts in New England are increasingly holding hearings by telephone and videoconference. For example, on Tuesday, March 31, the Massachusetts Supreme Judicial Court held its first ever argument by conference call—lasting a marathon 4 ½ hours—on an emergency petition to release prisoners in Massachusetts correctional facilities. Members of the news media received a recording of the hearing after the fact.

In this post, offered as part of Prince Lobel’s New England Media Access Hotline, we will assemble news and resources about media access to “virtual” court proceedings in the six New England states. We invite members of the New England news media to help! Please provide updates in the comments about your experiences (good or bad) with access to “virtual” court hearings in the six New England states. We will curate them and update this post periodically, as circumstances and court policies evolve.

Federal District Courts

Tucked away in the CARES Act, the massive economic relief package Congress passed into law on March 27, 2020, are provisions allowing certain federal criminal proceedings to be conducted via videoconference. Federal district courts in Massachusetts, New Hampshire, Maine, Vermont, Connecticut and Rhode Island promptly issued orders that allow for such videoconference hearings, but it wasn’t immediately clear whether the media would be allowed access.

On April 3, the Judicial Conference of the United States (the standards-making body of the federal courts) declared that videoconferences in criminal cases should be made available to all “usual participants,” including the media:

The recently enacted “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act) allows chief judges to authorize the use of video or telephone conferencing in certain criminal proceedings during the course of the COVID-19 emergency and with the consent of defendants.

This authorization is interpreted to permit courts to include the usual participants and observers of such proceedings by remote access. This includes not only defendants, lawyers, probation and pretrial services officers, and court personnel, but also others who normally participate in or observe such criminal proceedings, including victims, family members, the public, and the press.

Federal courts in the New England states have begun conducting proceedings via teleconference and videoconference. In Massachusetts, Judge William G. Young held a videoconference via Zoom on March 30; in Connecticut, Judge Alvin W. Thompson held a Zoom-based status conference in a civil case on April 3. It appears that in both cases, alert reporters who wished to attend the videoconference could do so by requesting the Zoom link from the courtroom clerk. The District of Vermont announced at the top of its homepage that “[u]pon request, a member of the public or a media representative will be given the call-in information for hearings being held remotely,” along with the number for the clerk’s office. We’re told hearings in Vermont are being held by telephone rather than videoconference, at least for now.

State Courts

Massachusetts: The state’s intermediate Appeals Court has developed a Zoom-based oral argument pilot program for select cases, with the proceedings live-streamed and archived on YouTube. Justice Amy Blake has used a photo of the Appeals Court courtroom as her “virtual background”—a nice touch.

The state’s trial courts are currently hearing emergency matters only. Each department of the trial court has a standing order concerning how emergency matters will be held.

The Superior Court standing order provides that emergency matters that cannot be held remotely will continue to be held in person. In-person access by the news media is limited to three persons who hold media credentials under the trial court’s credentialing program. The order says that other emergency proceedings may be held by videoconference, but does not specifically provide for media access to those hearings.

On April 6, 2020, the Superior Court issued a separate standing order concerning petitions for release by pretrial detainees and probationers in Massachusetts correctional facilities based on the risk of Covid-19. Certain of these detainees are presumptively entitled to release on motion, but where the Commonwealth still opposes release, “[t]he Court shall hold a hearing by videoconference or telephone conference within two business days of receiving the defendant’s motion.” No word yet whether the videoconference or telephone conferences will be—or have been—open to the media.

More coming soon—please check back for further updates.

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