After weeks of being put on hold due to the coronavirus, plea deals at the Orleans Parish Criminal District Court have resumed via video feed. Four inaugural pleas involving three defendants happened last Friday, May 8, in front of Chief Judge Karen Herman, and more are scheduled for this week.
Since the court shut its doors on March 16, limited criminal proceedings that were mandated to continue by the Louisiana Supreme Court — such as first appearances after arrest — have been done via video conference. But the Supreme Court order, while banning all non-emergency in-person proceedings, also explicitly gives the courts permission to resolve other issues via video conference:
“This Order expressly does not prohibit any court proceedings by telephone, video, teleconferencing, or any other means that do not involve in-person contact,” the state Supreme Court’s March 16 order reads. “This Order does not affect courts’ consideration of matters that can be resolved without in-person proceedings.”
Danny Engelberg, chief of trials for the Orleans Public Defenders, said that waiting until last week to move forward with plea deals via video conference was both a matter of logistics and priorities.
“Clearly the Supreme Court orders have allowed for it, it really just took a while to sort of work through some of the logistical issues, and to just encourage both the prosecutors and defense attorneys to start negotiating again,” Engelberg said. “I think what we’ve seen is once that happens, once the logistics are worked out, there are certainly cases that can and should resolve, and shouldn’t wait until the physical court reopens. And we can do that both safely and in a way that works for all parties.”
Engelberg also said that at the beginning of the crisis, the number one issue for the public defenders was working on getting their clients released from jail through bond reductions and other means. Since the virus first was detected in New Orleans back in March, the jail population has declined by hundreds to its lowest levels in recent memory.
According to a press release from the Orleans Parish Sheriff’s Office, there were 828 inmates in custody on Wednesday, down from more than 1,000 earlier in the year.
“The first few weeks of the crisis was identifying for the court — and there are still a lot more people in there — people that we were arguing for their release and asking for them to be getting out of the jail that we all knew was going to be a big hot bed for the coronavirus,” Engleberg said. “And it turned out it is.”
Since the beginning of the crisis, 134 New Orleans inmates have tested positive for the virus, of whom 61 were in custody on Wednesday. Seventy-two Sheriff’s Office employees have also tested positive, including three who have died. Fourteen employees of the jail’s medical contractor have also tested positive.
“The problem that we were seeing is that there were and are a bunch of cases where the actual charge itself can be reduced based on a negotiated resolution. And until that happens, in an action by the prosecutors, the release advocacy and the bond advocacy was only going to get so far.”
In an interview with The Lens, Criminal District Court Chief Judge Karen Herman said that discussions began nearly a month ago, and that initially the public defenders and District Attorney’s Office collaborated on a list of people they thought they could come to a deal on. After that, it was a matter of sorting out the technical details.
A spokesman for Orleans Parish District Attorney Leon Cannizzaro did not respond to a request for comment for this story.
“The biggest challenge was just coordinating all the different roles of all the different agencies, but I have to say that I personally didn’t find that any one agency was trying to be obstructionist in any way, it was just a matter of getting all the cogs in the wheel together at the same time,” Herman said.
In addition, Herman said that the Sheriff’s Office was concerned about having to move inmates inside of the jail in order to bring them in front of a camera, due to the potential safety risk for both deputies and other inmates.
“Logistically, we are advising clients over a public defender secure Zoom, like we normally would at court,” Engelberg said. “And then they go into the court video room — or Zoom — and the judge does their colloquy with our client just like they would in court, and does the sentence, and then the case is closed. The deputies are fingerprinting over at the jail, just like they would at court, and the paperwork that the clients sign is brought, along with the fingerprinting, from the deputy over to the Clerk of Court’s office.”
“You’d call it rudimentary, but it worked,” Herman said.
Herman is presiding over all the video pleas — even those that were assigned to other sections of court.
Both Herman and Engelberg said they were conscious of the potential challenges video pleas could have in relation to defendants making their decision voluntarily and intelligently.
“We have a lot of concerns about the effects of video court, and that it is not a long term or structural solution. But we also believe that [virtual court] is the way both our clients and staff can be safe at this point, and in the short-term that’s the only way to ensure everyone’s safety,” Engelberg said. “So, I would say it’s a necessary evil to do at this point, during this crisis. One thing that’s for sure is that our lawyers, and our staff, are very committed to protecting our clients rights, and if we think that in some way that video court is somehow going to be harmful, not protecting our clients’ rights, we won’t do that. But if we feel like we are able to advise our clients, and talk it through, and have enough attorney-client conversations and counseling that’s required by the Sixth Amendment, it is worth doing these.”
Herman said that she specifically advised defendants that the circumstances of their pleas — the fact that they were taking place via video, during a pandemic — would not be a basis for them to withdraw it later on.
Engelberg said the pressure that his office’s clients are feeling to get out of jail as the virus has spread in the facility is not altogether different from the pressure they feel to get out of jail under normal circumstances.
“Jail inherently — whether with COVID virus or every day normal criminal legal systems — is just a difficult place to make decisions out of,” Engelberg said. “Historically, we’ve seen people who, had they been out of custody, they would have been able to litigate their case further along. But being in custody, they want to get out. And that doesn’t change just because of COVID virus.”
“Those are just problems just structural about how we think through pretrial detention,” he said. “What the COVID crisis has taught us is that there are a lot of people in pretrial detention that never needed to be there. Many already knew that, but I think it’s teaching the system that.”