This past week, I watched a preliminary hearing (PH) on WebEx. It was painful. The defendant was confined, charged with being a felon in possession of a firearm. He was also being held on a federal gun charge from the same incident. The Assistant Circuit Attorney, defense lawyer (Taaffe), and police officer witness were in the judge’s WebEx “room”; the defendant was on a different video feed from the Justice Center. Putting aside the pointlessness of the hearing itself (did I mention the defendant has a federal case?), and its waste of the courts’ limited resources (let’s do PHs on cases where it matters), what I saw was an example of form over substance.
The defendant did get a PH. It was a logistical success. Yet, the conditions imposed by the video technology made it impossible for the defendant to get a fair hearing. Did I mention that someone (I’m assuming it was one of the other attorneys in the judge’s WebEx room awaiting their case to be called) flushed a toilet during the witness’ questioning? And I don’t think that was inadvertent but meant as commentary. (And, no, I wasn’t the one who flushed.)
A few of the serious problems I witnessed with the video PH are that defense counsel cannot privately consult with the defendant either before or during the hearing; the defendant cannot confront his accuser in person; witnesses cannot be shown or handed exhibits; a witness’ demeanor, body-language, and credibility much more difficult to assess; communication is difficult (for example, anytime someone makes a noise, the video switches to them – so a cough interrupts the proceedings); identification of the accused becomes a show-up; and what are supposed to be proceedings that are open to the public (transparency is essential to ensuring justice) are instead done, essentially, behind closed doors. Imagine how dehumanizing this whole experience is for a confined, accused person sitting alone in a cell, looking at a screen, and watching the show unfold. It’s Kafkaesque.
As I watched this preliminary hearing I couldn’t help thinking about how people around the world are protesting because they feel that disadvantaged persons are being mistreated by “the system” — that they are marginalized, disregarded, and denied human dignity. And I wondered if I was alone in thinking that the conditions under which this hearing was held were the very sort of thing being protested.
This PH was, as I said, painful to watch. It was painful because the substance behind the proceedings — a genuine concern for preserving the rights of the accused — was lacking. The court participants went through the motions, and had the hearing. They moved the case along. The mechanism of the PH functioned; the substance of the PH, its real purpose of providing an accused with a fair hearing to determine probable cause, however, did not seem to be a concern.
Taaffe realized how bad it was and cut off his questioning of the police officer after just two questions. Later he vowed to me that he was never doing another substantive hearing by video.