Hearings in the age of corona (UPDATED -- SCOTUS TO PROCEED VIA TELECONFERENCE)

UPDATE -- The Supreme Court announced Monday morning that it will proceed with its May calendar by teleconference. Order here.

So how many of you have done hearings via teleconference or video conference?  How is it going?  What are some tips/advice for doing the hearing?  Judges, what advice do you have for lawyers?

Here's an interesting information page from Texas with lots of resources for both lawyers and judges on how to do these sorts of hearings.  A snippet:

Tips for Successful Hearings

• Dress in a soft solid color (like a black robe for judges). If a tie is worn, use a solid tie rather than one with a pattern.

• When speaking, remember to look directly at the webcam, not at the screen.

• Position the camera at your eye level or slightly above eye level.

• Be mindful of what is behind you, choose a solid neutral wall if possible - or use our Judicial Virtual Background.

• Check the lighting. Light from a window behind you might blind the camera, making you look dark. Light above you in the center of a room might also cast shadows. Ideally, position a lamp, or sit facing a window, where light is directly on your face. Also be aware that your monitor casts light that can make you look blue.

• Remind the participants to speak one at a time and to pause prior to speaking in case there is any audio/video lag.

• Encourage the participants to mute themselves or mute them yourself when not speaking in order to avoid any potential background noise.

• Only email the link to the hearing to those participating in the hearing, encourage the public to view the hearings on the court's YouTube channel. Consider using a password for the hearings.

• Test your connection and setup with Zoom by testing your connection with a test meeting.

So far, my experience has been that federal judges are mostly doing teleconference hearings and not video hearings.  So you can still wear your pajamas and not brush your hair.

State courts are doing more video hearings from what I am hearing.  Here is a Herald article by David Ovalle on the first Zoom hearing, and a picture:

How about a little soap and social distancing?

Of course, that’s near impossible at the jail.  But Judge Williams has ordered the Miami-Dade jail system to do its best and fast.  From the Miami Herald:

Instead, she gave Miami-Dade Corrections and Rehabilitation until Thursday to explain, in writing, what measures are being taken to ensure the health of all inmates who suffer serious ailments including heart and lung disease, hypertension and compromised immune systems.

Also, she ordered that jailers “provide adequate spacing of six feet or more” between inmates to the “maximum extent possible” at the jail housing more than 1,800 inmates. The judge also ordered that each inmate get an “individual supply of soap, preferably liquid as recommended by the CDC,” as well as paper towels, cleaning supplies and toilet paper.

Authorities across the country have been pushing people to keep away from crowds and frequently wash their hands to avoid spreading the highly contagious virus, which causes a disease that has killed thousands in the United States and largely shut down the nation’s economy.

Williams also ordered that Miami-Dade jail officers frequently wash their hands, wear masks and gloves when interacting with others — and change gloves before each time they must interact with an inmate.

WASH YOUR HANDS! I love it.

SDFLA judges are starting to grant release based on COVID-19 (yes!) UPDATED WITH 4/6 BARR MEMO

UPDATE -- AG Barr tells prosecutors he's really serious about releasing folks on bond.  Here's the 4/6 memo: “You should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic. Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein.”  AG Bill Barr instructed prosecutors that they should "consider not seeking detention to the same degree we would under normal circumstances." 

I know of at least 3 cases, the most recent from today in United States v. Karl Oreste, Case no.14-20349-Scola. The order is here. Kudos to AUSA Lois Foster Steers for agreeing to this compassionate release motion and to AFPD Julie Holt for successfully pursuing the motion. Judge Scola writes a really good order, explaining how serious this issue is in our prison system.

Judge Williams also granted one, over the prosecutor’s objection in the Bart Hernandez case.  The Miami Herald covered that decision here.  It’s strange that the government objected here where there was only a few months left on the sentence and the defendant’s mom really needed the help.  Big ups to Judge Williams for granting this over objection.  Defense attorneys: Jeff Marcus, Dan Rashbaum, and Alison Green.

And here’s a lengthy and really well-reasoned order granting bond pending sentencing in United States v. Johnny Grobman by Judge Goodman.  The government not only fought against this order, but is appealing to Judge Altman.  (Full disclosure, I have been brought on as appellate counsel in the Grobman case and consulted on this motion before Magistrate Judge Goodman as well as the government appeal to Judge Altman. (Phil Reizenstein and Jackie Arango are the leads.)  So I won’t comment other than to say it would be worth your time to review Judge Goodman’s order).  

Any others?  Please send them along!

Latest SDFLA order

Here is the order referenced in the previous post.  The most important part:

All jury trials in the Southern District of Florida scheduled to begin on or after March 30, 2020, are continued until July 6, 2020. The Court may issue other Orders concerning future continuances as necessary and appropriate.

Same thing with grand juries. Prosecutors, how will you be bringing cases in the meantime? Through criminal complaints? And then preliminary hearings?

Here's a bit of good news... David Lat is home and better. He was on the Today Show:

@DavidLat did a great job on the @TODAYshow this morning. https://t.co/lSAFSOiPCt

— David Oscar Markus (@domarkus) April 6, 2020

And for another bit of zen, check this out:

john krasinski and emily blunt surprising a hamilton fan by having the entire original broadway cast join their zoom and sing for her is absolutely the best thing i have ever seen. pic.twitter.com/TLmCsbIk6n

— d (@melissafumeros) April 6, 2020

All jury trials and grand jury proceedings continued until July 6 (UPDATED WITH BARR MEMO)

The court issued another corona-order today, postponing all jury trials and grand jury proceedings until July 6.  The order is not up on the website yet, but I will link to it as soon as it is.

UPDATE Friday (4/3) evening — AG Bill Barr issued this memo, urging the release of at-risk prisoners to home confinement.  Serious question to the prosecutors who read the blog — why are so many prosecutors stridently opposing the requests?

Judge Milton Hirsch on "emergencies"

This order has it all: a Judge Edward Davis story, Shakespeare, and a dose of reality during the virus.

Not a real legal emergency ... by David Oscar Markus on Scribd

BOP to Phase 5 — full lockdown

Here’s the update from BOP:

Today, the Director of the Bureau of Prisons (BOP) ordered the implementation of Phase 5 of its COVID-19 Action Plan, effective tomorrow, April 1, 2020. In response to a growing number of quarantine and isolation cases in our facilities, the BOP will take the following actions immediately to further mitigate the exposure and spread of COVID-19. 

• For a 14-day period, inmates in every institution will be secured in their assigned cells/quarters to decrease the spread of the virus. This modification to our action plan is based on health concerns, not disruptive inmate behavior.

• During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.

• In addition, the Bureau is coordinating with the United States Marshals Service (USMS) to significantly decrease incoming movement during this time.

• After 14 days, this decision will be reevaluated and a decision made as to whether or not to return to modified operations.

• Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Inmate Computer System (TRULINCS) access.

Starting in January 2020, the BOP implemented its Pandemic Influenza contingency plan, modified as an Action Plan for COVID-19. The BOP continues to revise and update its action plan in response to the fluid nature of the COVID-19 pandemic, and in response to the latest guidance from experts at the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC) and the Office of Personnel Management (OPM).

News & Notes

1.  Our District continues to shut down operations.  No more grand juries until April 27.  And, in general, no more in person hearings in criminal cases for 90 days. Video conferencing instead.  For pleas and sentencings, defendants can opt for continuances or video hearings.

2.   In California, Elizabeth Henriquez will proceed to her sentencing in the Varsity Blues case by video conference.

3. The 11th Circuit is in session this week, but it will be conducting oral argument by teleconference (not video). You can listen live here. I will be arguing on Friday. Should be interesting.

4. BOP suffered its first prisoner death over the weekend. Patrick Jones was 49 at FCI Oakdale in Louisiana. He had applied for a sentence reduction under the First Step Act but was denied. I wonder how prosecutors who are opposing these motions will feel when these people get sick and die in prison.

5. Okay, okay, enough with the bad news. Some good news! Former SDFLA AUSA Michael Sherwin, who has been working as Associate Deputy Attorney General on national security matters, has been named Principal Assistant U.S. Attorney in DC. It's a big deal. Congrats to one of the good guys!