What’s the riskiest place in NYC for Covid infection? Bars? Frat parties? Mass gatherings to celebrate “Reopening New York”? Nope. It’s the criminal courts.
Working for a public defender outfit, we’ve been hearing daily reports from our so-called Covid Task Force about judges, attorneys, court staff, and guards falling sick from exposure to Covid in the courtroom. Reports from our colleagues are horrifying. Masks are worn as chin diapers. Jurors are packed into elevators 15 at a time. Cleaning is minimal and perfunctory. Social distancing is impossible. Plexiglass barriers are ineffective. And most clients aren’t vaxxed.
A lieutenant in charge of “mask enforcement” in the courthouse came to work for several days with Covid symptoms. He was neither vaccinated nor wore a mask. He ended up in the ICU on a ventilator. The President of the Court Officers Union announced, “Let this be a lesson to all of us to wear our masks properly, stay home if you have symptoms, and get vaxxed.”
Just kidding. Rather, he told the Daily News that it was “some scumbag dirtbag public defender” who posted on Twitter that the lieutenant never wore a mask. He approvingly explained that the lieutenant had refused to be vaccinated because of being misled by the government about the air quality at Ground Zero after 9/11, causing him to develop respiratory problems. Didn’t get vaxxed to get back at the government for what they did to him in 2001? That certainly showed the government a thing or two.
And BTW, Mr. Don’t-Trust-the-Government, even Trump went to Alabama a few days ago to tell his followers to get vaxxed. “You got your freedoms. But I happen to take the vaccine,” he told a rally, risking some boos.
You’d think even one report of Covid infection coming from the courthouse would be enough to precipitate a return to virtual proceedings. But it’s business as usual at the trial office. Attorneys are still being sent to spend hours interviewing clients in unventilated arraignment booths like this:
“This is lunacy,” said an attorney. “How many shark attacks have to happen before people are allowed to stop going into the water?”
“My understanding is that when there’s a mere shark sighting everyone is ordered out of the water,” someone answered. “But we don’t live in the rational world of beaches.”
No, indeed, we’re cogs in a dysfunctional machine. The Chief Judge, presumably aware of the surge of the Covid delta variant, recently trumpeted, “We have made significant progress to resume in-person operations and establish the new normal in court operations.” The “new normal” apparently being that anyone who goes to court, vaxxed or not, risks Covid infection.
Even less helpful is our boss, who declares that virtual arraignments – which the attorneys have been doing since March, 2020 – are “walking away from our clients.”
Walking away from our clients? If we’ve learned anything from the pandemic, it’s that we don’t have to endanger our clients and ourselves to represent them. As someone pointed out, it’s empathy, understanding and conscientious advocacy, including research and motions, that count, not physical proximity. “In all the one-and-a-half years that we were virtual, not one client said, ‘I don’t think you understand me because you’re not standing next to me,’ or ‘Can we meet in person because otherwise I don’t feel that you’re my lawyer.'”
The bulk of court “operations” aren’t trials, where the accused has the constitutional right to confront witnesses or where the jury needs to observe demeanor. Most proceedings are calendar calls, the purpose of which is to schedule another calendar call. “We’re sitting in court for hours for cases that can be done virtually,” observed an attorney.
“But I can’t hand my crying client a tissue through a computer monitor,” someone objected. True, but is it better to risk handing her a Covid infection?
The Office of Court Administration is an easy (and deserving) target. But righteous yipping at bureaucrats is nothing but indignation theater so long as the myth remains that in-person appearances are sacrosanct. “I’ll continue to be a thorn in the side of the OCA,” brags the boss. But who listens to advice from a thorn? Is anyone talking to judges about returning to virtual proceedings for now, especially since they’ve learned that their plexiglass barriers are useless? New York Needs a New Statute Authorizing Virtual Criminal Proceedings
Yes, they deep clean the area after learning of an infection. Which, as someone quipped, amounts to “fighting a known and potentially fatal airborne disease with a bucket and a mop.”
Why are most clients not vaxxed? It’s free, available and doesn’t require health insurance or immigration status.
Well, there’s the woke version of the “Don’t Trust the Government” explanation. According to the bumper-sticker-for-brains crowd, it’s an ideological choice that mustn’t be questioned. But the Black Coalition Against Covid calls on “trusted voices in the community,” from pastors to hairdressers, to urge vaccination. Attorneys should be among them. Explaining the risk and possible consequences of not getting vaxxed is no different in principle from explaining the risks of rejecting a favorable plea offer and going to trial. It’s the client’s choice, but it has to be informed.
“Humans, pursue your present course or face obliteration.” (Klaatu, The Day the Earth Stood Still) (1951).