Pandemic forces Maine’s 20th-century courts to adopt modern technology

By Judy Harrison, Bangor Daily News Staff

Maine’s court system was ready to take one technological leap last year when COVID-19 hit and ground the wheels of justice to a halt.

In the year since, a judicial system that relied almost exclusively on in-person proceedings and paper records has been forced into the 21st century, technologically speaking. Remote court appearances over Zoom have been surging. And a pilot system for electronic records — the one technological change the courts anticipated before the pandemic — has started in Penobscot County.

While Maine has seen its backlog of unresolved criminal and civil cases surge during the pandemic as courts have curtailed operations, remote proceedings that couldn’t have happened a year ago have let courts get some of their work done. And judges and lawyers expect remote court appearances, conferences and hearings to become routine even after the pandemic is over.

The court system spent $1.4 million — largely federal funds from Congress’ first coronavirus relief package last spring — on the technological upgrades to hold remote proceedings, as well as facility upgrades such as plexiglass and ventilation improvements.

Still, the courts don’t expect to hold remote jury trials — which would be key to resolving more cases and reducing staggering case backlogs — anytime soon. Uneven internet access across Maine presents a barrier for some jurors and witnesses to participate in court remotely, and others think that something is lost when a lawyer and defendant have to build trust remotely rather than in person.

Zoom court

Before the pandemic hit, courts used video proceedings sparingly, mainly for arrestees’ first court appearances from county jails, said Andrew Mead, acting chief justice of the Maine Supreme Judicial Court.

As courts gradually resumed operations following their pandemic shutdown last spring, they first used Google Meet before switching to Zoom in late summer because it included features such as breakout rooms that allowed lawyers to confer privately with their clients. 

By the fall of 2020, every courtroom in the state was equipped with a Zoom cart with a large video screen, movable camera and microphone connected to a clerk’s computer. In September, courts conducted more than 500 proceedings and meetings over Zoom, up from just three in May. That number has continued to rise, surpassing 1,600 each in January and February.

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Federal courts in Portland and Bangor are using similar technology and have held no in-person hearings in almost a year. 

“You can move the camera,” said Peter Schleck, facilities manager at the Penobscot Judicial Center in Bangor. “You can move the cart. You can have the judge on a laptop. You can have the judge [on the bench] being observed with just the cart.”

Some of Maine’s older courthouses required more extensive technological upgrades so they could use the Zoom carts. And that was crucial to making sure the criminal justice system kept functioning, Schleck said.

“The court cannot completely close to domestic violence protection requests or to children in danger who need protection or to recent arrestees,” he said. “Whether on video or in person, it still requires a human being on the other end of that screen making an appropriate determination to make sure due process is satisfied.”

Learning curve

Not only did judges, clerks, lawyers and litigants need to learn how to use the new platform, Mead and his fellow justices also had to write rules for using the new technology. Another challenge was limited internet access and slow speeds in parts of Maine.

But the benefits have been less crowded court facilities during the COVID-19 pandemic, and less time and money required for people to travel to and from courthouses, Mead said.

“We’ve also heard reports that folks feel safer attending remotely those matters that involve volatile or emotional circumstances,” he said.

Remote proceedings promote access to the criminal justice system, but the setup has its limits in older courthouses, said Marianne Lynch, district attorney for Penobscot and Piscataquis counties.

“They are not equipped to handle the task of reliably holding remote proceedings,” she said.

For some lawyers, the transition to mostly remote proceedings is just part of a natural progression.

“We used to write on chalkboards, then we had to learn to use video presenters and now we have to learn to present on Zoom,” Melissa Hewey, a civil litigator in Portland, said, comparing the progression to the evolution of law school. “It takes practice to be comfortable with new forms of communication but it isn’t really that hard.”

But others worry about the prospect of permanently losing most face-to-face interactions, and what that means for the justice system.

“My job as defense counsel is people-oriented trust building, to a large extent,” said Bangor lawyer David Bate. “When I cannot meet with an incarcerated client or when I am not standing next to the client during a video hearing, something is lost.

“I think the system can work sufficiently under COVID restrictions but there are bound to be gaps and, over time, substantial deficiencies are bound to occur despite the best efforts of all involved,” he said.

Imperfect solution

While no jury trials have been held in state courts since November when coronavirus cases began spiking, several jury-waived criminal trials have been held remotely. But they are proving to take longer than in-person proceedings in a courthouse, said York County District Attorney Kathryn Slattery. 

What would have been a one- or two-day trial before a judge will begin its third day of testimony on Thursday, she said. 

“It has gone very slowly,” she said. “Every time the defendant, who is at the jail, wants to speak with his attorney, they have to go into a breakout room while everyone else waits on the Zoom call. In court, the defendant would be able to whisper to the attorney.”

Plus, Slattery said, Zoom can also distort audio evidence. The court has no control over where witnesses testify from and the devices they use.

“One testified while a passenger in a car, another was outside on a bench and a third had a baby with her,” she said.

While some states have held remote jury trials with jurors participating remotely, Maine has no plans to do so. No civil jury trials have been held in a year, and a handful of criminal jury trials took place last fall before rising infection numbers curtailed court activities again. 

Those trials, held in Bangor and Augusta, required three rooms to ensure social distancing — one where the evidence was presented to jurors, one for jury deliberations and another where the public could remotely observe the proceedings. 

“Jury trials during the pandemic have been extremely resource intensive and not sustainable statewide in the long term,” Mead said.

Remote jury trials present other obstacles. In Maricopa County, Arizona, where remote jury trials have happened, for example, the digital divide limits the potential jury pool, according to a survey of 32,000 potential jurors. That survey found that many potential jurors lacked devices with web cameras, reliable internet access and private spaces where they wouldn’t be interrupted.

For those and other reasons, Hewey does not expect Maine to hold virtual jury trials even in civil cases in the near future.

“But 15 years ago, I didn’t envision that I could watch the news on my phone, so who knows?” she said.