December 2, 2020 555 PM
TRI-COUNTY — Judge Roy Ferguson is sitting in his courtroom in the Jeff Davis County Courthouse — or so it would seem. Then the judge adjusts the background on his Zoom call, summoning first a promotional image for the hit Netflix series “Tiger King,” then stock video of a tropical beach.
As waves lap behind him, Ferguson — who judges for five counties in West Texas, including the tri-county — explains that he’s actually in his courthouse office in Alpine. But there’s a message in the changing scenery behind him: If judges and lawyers want the public to take virtual court seriously, they need to take it seriously themselves.
“I’ve always got some sort of background on to make it clear that this is a courtroom,” Ferguson says. He’s also kept many of the same rules from his pre-pandemic and in-person courtroom days. No hats. No smoking. No chewing gum.
By contrast, “There have been courtrooms where you couldn’t tell who the judge was,” Ferguson says. “Sometimes the judge is the worst-dressed person on the Zoom.” Ferguson thinks it’s part of his role as a judge to set the tone of court hearings, whether they’re happening in the “majesty” of a courtroom or via computers. He credits that philosophy with keeping his virtual courts mostly free of tomfoolery, though there have been exceptions, including one person who tried to attend court while driving and another who logged into a hearing from bed.
Nine months into a coronavirus pandemic, it’ll come as no surprise to Big Bend residents that coronavirus is upending and changing the patterns of daily life. In the courts system, those changes have been stark.
Since the pandemic began this year, Texas courts have held more than 760,000 virtual hearings, summoning millions of people to millions of hours of mandatory on-screen court business. These shifts have altered procedures that until this year were basically always done in-person, from cross-examining witnesses to gathering large groups of people for bond hearings or jury selection.
In Texas, few have had to grapple with disruptions of coronavirus in courts quite like Judge Ferguson. Back in March, he became the first on-call quarantine judge in the state, tasked with enforcing control orders from health officers and public officials.
Ferguson worried the role — which would have seen him constantly travelling to different quarantine hearings across the state — would be impossible to do effectively in-person. He brought those concerns up with the Texas Office of Court Administration, which Ferguson says quickly put out guidance on remote hearings. Texas was an “early adopter” of those and other pandemic-era safety practices and later guided the way for other states.
Ferguson has conducted his own court business virtually since March. Now, he’s getting ready for another milestone: the first virtual jury trial in West Texas.
Ferguson is always reticent to discuss cases before him, and he didn’t want to give details on the trial, which starts later this month. But he did say it was a civil case, not a criminal trial. One of the people involved in the case is elderly, and the lawyers were interested in doing a virtual trial.
That worked for Ferguson, who himself isn’t much interested in in-person court hearings these days. Technically — and despite coronavirus restrictions on gatherings — Ferguson says he “absolutely” still has the power to compel people to physically come to court.
But with cases spiking in the region, he says there’s a real possibility that a defendant, lawyer or prospective juror with COVID-19 could inadvertently infect others. “I’m not going to force someone to come to court and potentially kill someone,” he said. “I’m not going to do it, and I don’t have to do it.”
Holding a virtual jury trial comes with its own quirks. Instead of in-person interviews, prospective jurors will fill out an online form asking them basic questions, like whether they know anyone involved in the trial. The second pool of jurors will use a similar questionnaire for “voir dire,” the questioning process by which lawyers on either side of a case eliminate potential jurors.
When a final juror pool is selected, the court will then issue identical iPads for them to log in to the Zoom trial. The iPads won’t have social media apps but will have cameras, which Ferguson says jurors will have to keep on. That will allow Ferguson to keep an eye on jurors throughout the trial, and make sure no rules are being broken.
Way back in April, Ferguson was asked if he’d be willing to do a virtual trial. He declined, worried that he wouldn’t be able to conduct a high-stakes court proceeding over a computer screen.
“I don’t want it to be a circus,” he said, explaining his thinking at the time. “I’m not going to let something be a mockery. I wanted to make sure what could happen, what the risks were, what to expect.”
But Ferguson warmed to the idea of virtual trials for a few reasons. For one, there have now been thousands of virtual court hearings and at least two official verdict trials in Texas, including one for a speeding ticket near Houston. After watching processes like these, virtual jury trials started to feel like less of an unknown.
For another, as the coronavirus pandemic enters its tenth month, Ferguson has grown increasingly concerned about the prospect of backlogs and delayed trials nationwide (though he says he’s stayed on top of his own cases). “It should weigh on everyone in the system when justice is delayed,” he said. “There’s the famous quote, ‘Justice delayed is justice denied.’”
Ferguson brings up the example of a defendant who was charged in a crime, but wasn’t able to make bail. Technically, he points out, that person is still innocent. Some law enforcement agencies have adopted compassionate release policies to keep people from waiting in jails for trial during a pandemic. But Ferguson worries about the other cases, where people are still sitting in jail with no conviction or otherwise having their life upended by a still-pending charge.
Last but not least, Ferguson says many of the worries about virtual courts just haven’t come to pass. At first, many worried — fairly — that people might cheat in virtual court. Defendants could intimidate witnesses, or jurors could read news stories about a crime on their phone.
But “people cheat in person” too, Ferguson said. While jurors in the pre-pandemic days may have been watched closely in-court, they could still feasibly go home and Google the case on which they were serving. And as Ferguson watched and presided over more virtual hearings, he grew increasingly confident they could provide the same standards and security as in-person court.
“Anyone who thinks that’s a new problem,” he said, “hasn’t been working hard enough to protect the sanctity of their jury trials before the pandemic.”
If anything, Ferguson says, virtual trials can offer a better experience to the public, including defendants. People who so far attended virtual hearings have had overwhelmingly positive experiences, according to a survey conducted by the National Center for State Courts in June. More than 90 percent said they had “no issues” talking to clients during hearings, while less than 5 percent thought that holding court hearings virtually rather than in-person had “altered conduct of any participant.”
In the pre-pandemic times, someone with a court date in Alpine may have had to drive from Terlingua or Marathon. Or, they might even live out of state and need to figure out trips all the way from California or Florida.
With those issues now gone, Ferguson said more people are showing up to court — including not just defendants but interested parties in other types of cases, like child-custody hearings. It’s easier for people to get lawyers, he says, because they don’t have to pay a Dallas lawyer to travel out to the Big Bend. And the whole court process goes faster, in part because judges aren’t as incentivized to do “cattle-call” dockets, where they summon a group of defendants in the morning to make sure no one misses their court hearings.
“You don’t have to log in at 9 a.m. to have a hearing at 4,” Ferguson explained. “You can log in at 3:50.”
For Ferguson, who’s served on the local bench since 2012, these look like improvements, not pandemic-era glitches. He hopes that some of these new protocols are here to stay, though he acknowledges that — outside of emergencies — it would take lawmakers to change them.
“We’ve learned enough to know that we can deliver high-quality justice in this format,” Ferguson said. “People are satisfied. People like the fact that they’re served better by the justice system. It’s a much more user-friendly format.”
“It’s great when someone’s concern with a problem is the inverse of what happens,” he added. And when it comes to virtual trials, “all those fears aren’t proving true. In fact, the opposite is proving true.”