Virtual Arraignments Raise Real Concerns In NY Courtroom

Law360, New York (March 25, 2020, 10:27 PM EDT) -- New York criminal courts carried out the first virtual arraignments on Wednesday, an unprecedented step in response to the COVID-19 outbreak that was beset with delays and concerns over hard-to-see defendants and protective equipment for remaining courtroom staff.

Over a span of four hours at the Manhattan criminal courthouse at 100 Centre St., New York County Criminal Court Judge Michael Gaffey arraigned seven defendants in nine cases, hearing arguments via Skype from prosecutors and public defenders before ruling to release or set bail for the accused. The defendants' faces were obscured behind a white mesh cage as each waived the right to have a lawyer physically present.

Judge Gaffey, streaming live from a nondescript corner of his home, ordered the release of four and mandated bail packages for three others before 2 p.m. Wednesday.

"Do you consent to us doing your arraignment by this electronic means?" Judge Gaffey asked one defendant.

Court of Appeals Chief Judge Janet DiFiore, in front of the bench, observes one of the first virtual arraignments on Wednesday. (New York Courts)

A Spanish interpreter, sitting extremely close to the camera, repeated the question for the defendant before translating the muffled response from behind the video-linked cage: "Oh, yes."

"Do you consent to the fact that your attorney is not with you?" the judge asked, drawing another affirmative reply through the interpreter. "If at any time during the arraignment you can't see us or hear us, let us know."

"Yes, I hear you and I see you," the interpreter belted into the microphone on the man's behalf.

At that moment, Court of Appeals Chief Judge Janet DiFiore entered the courtroom to watch the proceedings.

"You will be released on consent of the people," Judge Gaffey decided, as the chief judge crossed the well to glimpse the video-linked parties engaging in the virtual courtroom onscreen.

A black video console presided over the hearings in the arraignment courtroom, displaying streaming video of the remote parties. The screen faced the empty bench and was not visible from the gallery, although a revolving crew of up to two dozen court officers, police officers, corrections officers, clerks and other court staff milled around the teleconference setup.

Court clerk Donna Orr served as Judge Gaffey's hands in the courtroom, jotting down his decisions as he made them on the pile of folded legal paperwork, so-called jackets, bearing the charges against each defendant. Orr was among the few donning gloves and, briefly, a mask.

Judge DiFiore thanked the staff for their hard work but appeared concerned about the lack of personal protective equipment among the officers and clerks in the room.

One of Judge DiFiore's stated rationale for the move to this "virtual court" in a Monday video address was to reduce the number of people present, citing an "unacceptably large number of lawyers and agency personnel" in court, which was "not consistent" with advice from public health authorities who have mandated avoiding all gatherings during the coronavirus outbreak.

"Don't be afraid to wear the masks, people," she said, looking around.

The chief clerk, Justin Barry, assured her that there are enough gloves and masks available for any who request them.

Judge DiFiore told Law360 that she was "extraordinarily proud" of her court staff.

"These are extraordinary times. We are using extraordinary measures," Judge DiFiore said, responding to observations that the pace of arraignments seemed slow, the video chat a bit glitchy and uneven use of protective gear in the room. "All of them are working so we can be open. So that we can do it in a safe, God willing, way."

One defense attorney argued that her client, who is charged with first-degree rape and first-degree criminal sexual act, was harmed by the new remote arraignment because it was impossible for the court to see him.

"If he were not behind a gate," argued Sarah Kaufman of the New York County Defender Services, the judge could see that the defendant had no injuries consistent with the struggle alleged by prosecutors as he might be able to during a traditional in-person arraignment.

Kaufman also said that setting any bail would effectively place her client in an "unsafe environment" — a New York City jail during the coronavirus pandemic. The judge set bail at $50,000 cash, over $75,000 on credit, and $100,000 on a partially secured bond.

Throughout the morning and afternoon proceedings, a couple sat in the gallery benches and waited for their 18-year-old son, who they said has the mental aptitude of a 12-year-old, to be arraigned after he had been arrested early Tuesday morning.

"They've got to get it together. He's been in here over 24 hours," the mother told Law360 around 2 p.m., asking not to be identified to protect her son. She had asked court officers that morning to speak with her son's lawyers in advance, fearing he could not get proper legal representation without his parents' help.

"My son doesn't know how to verbally express himself," the mother said. "My son and I really need to speak to the lawyer."

But court officers told her there would be no attorneys present in the courtroom, either for the government or on her son's behalf. From the gallery, the only sight the parents could see was the back of a television screen and a chorus of voices as other defendants were being arraigned.

"For my son to be on TV with the judge, this is going to be a lot for him," the mother added. She had been sitting at the courthouse with her husband since the previous afternoon when they waited until midnight and then returned first thing in the morning.

But, the weary mother said, they dared not leave the courtroom and miss their son's arraignment.

--Editing by Orlando Lorenzo.

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