The defense attorney — usually a court-appointed public defender — has to make a choice.
She can either sit in the courtroom, where she can speak privately with the judge or prosecutor. Or she can sit in a conference room in a county jail beneath fluorescent lights and behind a steel door, where she can speak privately with her client, the defendant.
Most people imagine defendants sitting beside their lawyers when they face a judge in court. But in courtrooms across Wisconsin, the defendant is in jail, away from the judge and attorneys — as well as friends and family who may have come to court to offer support — watching the proceedings on a screen.
Since a 2008 Wisconsin Supreme Court rule established guidelines for the use of videoconferencing technology, courts have jumped at the opportunity to hold hearings over video, rather than in person.
Around 90% of the state’s judges use the system, according to a 2017 survey of 198 Wisconsin Circuit Court judges. A majority of those judges, 53%, said they use it one to five times per month.
Most of those uses, according to the survey, were for criminal proceedings or involuntary civil commitments — a court order to place someone in a mental health facility. In criminal cases, videoconferencing is mostly used for arraignment and bond hearings, where the charges against a defendant are read and a judge decides if a person can be released from jail pending trial.
For courts and counties, the system is a no-brainer, it saves the time and money spent transporting a jail inmate to and from court.
“In general the advantages are, it’s expensive to transport people and it’s also high-risk,” says Jeff Schwartz, a correctional consultant who often testifies as an expert witness on jails and prisons. “The savings in staff time for the correctional facility are very substantial.”
The use has grown in the last decade, even though many courthouses in the state are in the same building as the jail, meaning counties aren’t burdened by the cost of transportation.
In Jefferson County, where the jail and courthouse are connected, the use of videoconferencing saves staff time, according to Sheriff’s Office Chief Deputy Jeffrey Parker. Any time a jail inmate is required in court, it takes two deputies off the jail floor, Parker said.
“Obviously from a time management standpoint, it allows coordination of us to more effectively use man hours and staffing hours down in the jail to not take prisoners out of the secure area of the facility,” Parker said.
But state law says the use of videoconferencing is up to the judge, not the county sheriff’s department. In Jefferson County, Parker said taking an inmate to court costs staff time, but isn’t a major inconvenience.
“Because of the closeness of our facility to the courtrooms, we use it very sparingly,” Parker said. “Because we have the ability to have them very quickly in the courtroom. The expectation is they will make a physical appearance. Because it isn’t an inconvenience to have that physical interaction.”
A defendant has certain legal rights, which opponents say are impeded when the person can’t be physically in the courtroom.
Not being in the courtroom makes it more difficult for the defense attorney to speak with those involved, for the judge to read the body language and demeanor of the defendant and even for the defendant to see who is in the gallery, according to to Adam Plotkin, legislative liaison for the Wisconsin State Public Defender’s Office.
All of these issues are on the minds of public defenders when videoconferencing is being used, according to Plotkin.
A difficult choice
“I know it’s an issue that comes up regularly for us, particularly with the proliferation of technology in the court process,” Plotkin said. “It does present a unique problem at times. It can be a useful tool but it’s not a replacement for physical presence in the court. It puts the attorney in a tough spot.”
Whatever choice the defense attorney makes, a sacrifice is being made, according to Plotkin.
“They have to choose: are they going to be physically in the courtroom so they can have a private conversation between the two lawyers? But then, they’re not able to have quick, easy conversation with their client on the side,” Plotkin said. “On top of that, you have the understanding of the client of what the proceeding is. It makes it hard for the client to understand what is happening in the courtroom.”
The state did consider the tradeoffs when implementing the technology. The division of state courts in charge of crafting rules and policies called these tradeoffs the “intangible costs” of videoconferencing in a guide on the system’s implementation.
“Videoconferencing may impact a criminal defendant’s perspective of the judiciary and the criminal justice system,” the guide states. “Consideration should be given to whether removing the defendant from the courtroom reduces the judge’s impact on the defendant, whether it is conducive to courtroom decorum, and how it affects the defendant’s perception of the court’s fairness.”
The committee that developed the rules in 2008 grappled with these issues, according to former Richland County Circuit Court Judge Edward Leineweber.
A burden on the defense
Leineweber played an important role for the committee, writing the new rules and explaining them in articles for the Wisconsin State Bar. He said the state brought in all the important players to develop a system that would work constitutionally while protecting everyone’s interests, especially the defense attorneys who were the most concerned.
“[Defense attorneys] would rather have their clients with them in the court,” Leineweber said. “They viewed it as the diminution of the gold standard, it’s hard to argue with that. Institutionally, they view the defense as carrying the burden of videoconferencing.”
But, Leineweber said, it was clear the state had to develop some rules for county circuit courts as the technology continued to improve. Ultimately, he thought the rules he drafted were fair to everyone involved in the court process.
“But they accept that it was pretty solid reasoning to do it,” Leineweber said. “It still was possible — if it were done carefully and with great deference — it was possible to do it without any constitutional problems.”
More than a decade after the rules were written, state judges said the technology has a number of disadvantages: 49% of judges surveyed cited “insufficient confidentiality” as one of the biggest downsides.
Insufficient confidentiality comes back to the choice defense attorneys are forced to make. In a court proceeding, the parties all have some privilege of confidentiality with each other — prosecutor to defense, judge to lawyer, attorney to client — that is lost when part of the hearing is done in a different room, according to Plotkin.
Aside from confidentiality, judges said bad video or audio and the loss of procedural justice were other disadvantages to the system.
Banned in Cook County
Courts around the country — such as Chicago’s Cook County, Ill. — have seen these disadvantages and banned videoconferencing.
The ban in Cook County came after a class action lawsuit from Northwestern University’s MacArthur Justice Center alleged videoconferencing “deprives arrestees the rights to due process and effective assistance counsel.” The county agreed to voluntarily stop the practice in 2008 — right when Wisconsin was establishing its guidelines on increasing its use.
Cook County, one of the largest counties in the country, had started using video for all of its bond hearings, a practice found to have substantially increased bond amounts, according to a 2010 study by the Northwestern School of Law.
Law professors from the MacArthur Justice Center analyzed more than 600,000 case files from before and after videoconferencing was implemented. The analysis showed videoconferencing caused bond amounts to increase, depending on the offense, by 54 to 90%.
While other jurisdictions were ending the practice, it has continued to grow in Wisconsin. The latest trend, according to Ann Olson, Wisconsin courts policy analyst, is an increased use of videoconferencing in civil commitments. The only factor stopping the continued increase in civil commitment hearings, Olson said, is a lack of capacity at the state mental health facility.
Now that it’s been opened, there’s no putting videoconferencing back in the box, Plotkin said. It’s just too convenient for the courts.
“I would say the horses kind of left the barn on it,” Plotkin said. “In the past 10 years there have been instances of expanding when and how it can be used.”