Criminal Court Judge Barry Steelman says he’s experienced many memorable moments since the beginning of the pandemic. Some were challenging, others were enlightening and still others were inspiring.
And at least one was weird, he adds.
This particular moment took place as Steelman worked from home due to exposure to the coronavirus. During that time, Hamilton County’s information technology department placed a laptop where he presides over court and pointed the screen at the room, allowing him to speak virtually from the bench.
Someone told Steelman the setup looked like a Max Headroom Coca-Cola commercial from the ‘80s.
Steelman says the moment he learned about the governor’s declaration of a state of emergency is also sealed in his memory.
Tennessee Supreme Court Chief Justice Jeffrey Bivins conveyed the news while Steelman and his colleagues were gathered at the 2020 spring judicial conference. As Bivins spoke, he ordered the judiciary to not communicate in any way that the courts were closed, and provided specific directives clarifying that the business of the criminal courts must continue.
Due to the Centers for Disease Control and Prevention guidelines, however, the state’s criminal courts were unable to conduct business as usual. Accustomed to gathering en masse, lawyers, litigants, judges, witnesses and the other components of Tennessee’s justice system proceeded to fulfill their responsibilities in drastically different ways.
A little more than a year after listening to Bivins’ announcement, Steelman devotes a portion of a Sunday afternoon to a phone call about the changes that followed, the impact they had on the courts and what the future of the state’s criminal courts might look like as a result.
What was the immediate impact of the governor’s declaration of emergency on the criminal courts?
“The criminal courts had been running on a treadmill for years, and when the treadmill suddenly stopped, we immediately stepped off it and onto a walking track. That forced us to think through how we could fulfill our responsibilities while still moving forward.”
Which questions arose out of the early conversations about the criminal courts’ ability to fulfill its responsibilities during a time of social distancing?
“Could we keep the dockets moving as people sheltered in place? Would the people who were out on bond cooperate and appear virtually? Would they have the resources to do that? Would the county have the resources to accommodate it? What about the lawyers and witnesses and other parties?
“I remember seeing the news about people being stranded on a cruise ship and thinking of the jail being like a cruise ship. We’re always at or near capacity, so we needed to think about how we were going to address that situation. How could we make sure the incarcerated didn’t become sick? How could we avoid contact with them but also afford them their right to a hearing?
“We knew so little about the virus and its effects on us, so many people were afraid, and the unknown only enhanced those fears.”
Did the use of video technology raise any unique questions?
“One of the questions many of us initially had concerned how the appellate courts would view an individual who was not in front of the judge pleading guilty to a serious crime. Criminal court is a court of record, so what would happen if the record was unclear – if the person on the other end claimed they didn’t hear something the judge was responsible for making sure they understood, or if a person had a change of heart and claimed they didn’t hear everything they were supposed to have heard?”
Did attorneys raise any objects to the use of video technology?
“Some lawyers said they were uncomfortable with trying to determine whether they should keep or remove a particular prospective juror when they can’t see his or her entire face to determine how he or she was reacting to a particular screening question and whether that juror seems to like or dislike them or their client.”
Which issues were the most challenging for the criminal courts to tackle?
“Our biggest challenge initially involved our responsibilities as criminal court judges to empanel a grand jury. The grand jury room isn’t large enough to allow people to socially distance, so we suspended the grand jury in March.
“We then had to figure out how to assemble the number of people necessary to form a jury, and wondered how many people would cooperate and respond to a summons during such a scary time.”
How did this impact local inmates?
“There were inmates whose cases had been moved from General Sessions Court to the criminal court, and one of the stops along the way requires them to go through a grand jury. Without the grand jury, those people had nowhere to go.
“So we received a lot of motions from prisoners reminding us they were still there and asking for bond reductions. Many of those pleas referenced risks to COVID exposure. Given the fears I referenced earlier, we certainly understood why prisoners didn’t want to languish in jail while the grand jury wasn’t in session.”
You played a role in the grand jury issue being resolved locally.
“That was another one of these days I’ll remember for a long time. It was a very inspiring day last June when I was able to preside over the resumption of the grand juries. We had located a space large enough for the grand jury to gather in the M.L. King building and implemented the use of virtual technology in the grand jury room for witnesses.
“We still had concerns about the kind of response we would get to our summonses, and we gave each summoned potential juror the ability to opt out of service if they had concerns about COVID. Even with that, we were very pleased with the response to the summons, which was well above our highest expectations.
“We hear so many criticisms on both sides of the political spectrum about the condition of our country and citizenry. But to me, that illustrated how many people are still willing to often enthusiastically fulfill their civic duties and responsibilities even in a time of great crisis. It was very inspiring.”
Did this resolve the issue of people languishing in jail?
“It helped. We also worked with District Attorney Neal Pinkston, who identified individuals whose cases could be released on bond without compromising the assurance that they would appear in court or without jeopardizing public safety. This significantly reduced the jail population.”
How close are the criminal courts from returning to a pre-COVID state?
“We’re back to doing most of the things we were doing before COVID. During the last few weeks, I’ve had several motions to suppress evidence, I’ve had a motion to revoke a bond, I’ve had hearings related to whether people have violated probation, and we’re taking guilty pleas and sentencing with regularity.”
Are there exceptions?
“The glaring exception is jury trials. How do you conduct a jury trial in the space that’s allotted in our three courtrooms and maintain social distancing? Where would a jury deliberate when it’s sent out of the courtroom?
“Disputes are always going to have at least one defendant and one prosecutor. Sometimes, you’re going to have multiple defendants, and even when you have one defendant, you’ll sometimes have multiple lawyers and investigators, the district attorney and his or her investigator, law enforcement people and more. Even our biggest courtrooms just are not friendly to social distancing.”
Has this created a backlog of cases awaiting trial?
“People in general seem to believe the criminal court has a huge backlog. But things have slowed down enough that we’ve been able to conclude most non-violent cases and the less serious crimes, so in some ways, our dockets are actually in better shape.
“That’s partly a result of General Sessions Court being unable to do as much business with non-incarcerated defendants as usual, and I’m concerned that we’re going to start having more cases as sessions court gets back into a rhythm.
“But to the extent that we have a backlog, it’s only with the very serious crimes. I have a number of murder cases, several of which were pending in last March, and now it’s been another year that we’ve not been able to get them to trial.”
The notion of a backlog is nothing new to criminal court, correct?
“Cases in Criminal Court have nowhere to go except the Court of Appeals, so we do tend to develop a backlog. What is new has been our inability as judges to be able to encourage people to move forward with the business of the court. One of the best ways to do that is to schedule a trial date and pretrial conference dates and then make people accountable to those dates. It’s been difficult to do that without knowing whether or not a case is actually going to go to trial.”
Have trial attorneys expressed an eagerness to return to court?
“Yes, but lawyers have also told me it’s not safe to assume they were able to accomplish much while the courts were slowed down because it’s difficult to prepare a case for trial when you can’t have face-to-face meetings with witnesses and coordinate work with your investigators.
“So, at this point, I’m scheduling cases farther off in light of continued concerns about whether or not the issues surrounding COVID will work themselves out. I’ve scheduled one trial in August, one in September, two in October and two early next year. Although they’re still several months away, they’re on the calendar. That should allow a little more cushion for things to get better by the time we’re ready to see a jury.”
What do you believe will happen if a defense attorney claims the delays violated his or her client’s right to a speedy trial?
“That would be interesting because the Constitution doesn’t contemplate whether a pandemic is one of the circumstances that would allow a state to deny someone a speedy trial.
“Prosecutors probably would say that because the evidence resulted in an individual being charged with a serious crime like murder, and a sessions court judge found probable cause, and a grand jury found probable cause, should that person be released into the community? Could we trust that person to return to court? Is it possible that person could be a further danger to the community?
“So there are competing perspectives.”
Has the slow-down benefited the criminal courts in any way?
“I started working as an attorney in 1989, so I’ve been around the courthouse for 30 years, and things have never even come close to slowing down to this point. But this has allowed us to step back and examine what we’re doing, how we’re doing it and why we’re doing it.
“The criminal justice system is like a hamster on a wheel; it just moves and moves and moves. I remember as a prosecutor trying to keep up and being told we needed to make our best judgment in the most efficient manner possible and keep the docket moving.
“So the reduction in speed has almost been like a football coach watching game film in slow motion to figure out where the problems are. And that’s been healthy.”
What’s one of the benefits?
“Through the years, we’ve required people to come to the courthouse and wait for sometimes very long periods of time, only to be told to go home and return another day because things weren’t quite ready.
“In the same way, the district attorneys and the public defenders often had to be in court when the judge called the docket at nine o’clock. But lawyers who had responsibilities in other courts had to finish their business there before they could come to my courtroom.
“This led to a lot of inefficiency and waiting, and as frustrating as it was initially to do so much business by telephone and email and WebEx, the efficiency of what we’re doing has paid tremendous dividends. There’s a lot less wasted time.”
As the world adjusts to the pandemic, people often say there will be a new normal moving forward. What will be criminal courts’ new normal?
“I hesitate to call it a new normal because the norm needs to be what it was; some things related to the criminal justice system need to stay the same.
“For example, the right to a trial by jury also involves the right to confrontation, which has been interpreted as being in the room with your accuser so you can look them in the eye, and to have the jury close by so you can sense the emotion as well as the words and demeanor of the witness. That’s very difficult to accomplish in a virtual setting.”
Do you have any final thoughts about the last year to share?
“Any success we’ve had in keeping the courts open and doing business has been the result of a group effort. Neal Pinkston, the public defender, Steve Smith, and the defense bar have all been open to doing business in unfamiliar ways and very cooperative.
“We’ve also received a great deal of assistance from Hamilton County’s IT department, General Sessions Court coordinator Shawn Johnson and Sheriff (Jim) Hammond. All these people and more have gone over and above during this time of crisis to keep things running as smoothly and as productively as possible.