CHEYENNE – Though many aspects of the state’s government shut down at some point because of the COVID-19 pandemic, its public defender’s office never did, Wyoming State Public Defender Diane Lozano said.
Things have looked different since March 2020, though: representing clients has not been quite the “contact sport” Lozano thinks of it as, building trust and rapport with those she represents by spending time getting to know them. She and other attorneys have had to learn how to “be a persuasive advocate when you’re not in the same room.”
Still, the Laramie County court system has largely continued operating, save for jury trials in Laramie County District Court, which handles criminal felonies, civil cases where the amount in dispute is more than $50,000, and juvenile and probate matters. Judges in district court have continued to hold hearings mainly over video and audio, as has the Laramie County Circuit Court, which handles misdemeanors, small claims and civil cases where the amount is dispute is less than $50,000.
“We’ve been working our cases this entire time. COVID has not stopped crime from happening,” Laramie County District Attorney Leigh Anne Manlove said. “We’ve all continued the work of the system, really, without any interruptions.”
Everyone involved in the court system has had to adapt to an increased use of technology – even beyond routine reminders that anyone not speaking mute their microphone. Attorneys and defendants alike have had to adjust to the idea that their presence on video is considered being present in the courtroom, with some judges issuing stern warnings to defendants that their dress, demeanor or background is not appropriate. Some reset hearings if they don’t believe a defendant is taking things seriously, or is driving or smoking when they’re called upon.
“I panic every time I have a client who’s out of custody. ... Until they get on (the call), I am worried,” Lozano said.
There are also accessibility issues. Some defendants, especially those represented by the Public Defender’s Office, do not have access to a computer or mobile phone that enables them to appear by video. In these cases, a defendant can request to appear in person in the courtroom – where plastic barriers, disinfection regimens and social distancing rule – or appear from their attorney’s office.
However, increased use of technology for hearings can also make attending a setting much more convenient, with out-of-town or out-of-state plaintiffs, defendants, victims and others able to appear from wherever they can find a stable internet connection.
In district court, the ability to appear virtually may actually be lessening the chance of a defendant not showing up for court: District Court Clerk Diane Sanchez said that between March 16, 2020, and Feb. 10, 2021, there were 45 petitions for a bench warrant for failure to appear, down from 55 during the same period in 2019-20.
Those working within the court system say they miss having regular in-person interactions with their colleagues, and some think serious hearings like sentencings are better handled face to face. Lozano said that, in the future, she hopes most proceedings will continue in person.
“When the Constitution says confront and cross-examine, I think it’s important that we do that live,” Lozano said. “So, when the world goes back to normal, I wouldn’t want to do hearings other than arraignments by video. I know that it saves money – I have a lot of public defenders who travel all over the place, and maybe appearing to do a 10-minute sentencing by video is the way to go. I’m just not so sure that it doesn’t water down the Sixth Amendment too much.”
And while the Laramie County jail allows attorneys to meet with in-custody clients in a designated room or by video, Lozano said the restrictions made necessary by health guidelines make many aspects of working with her clients more difficult.
Laramie County District Judge Thomas Campbell said the expansion of the court system into the virtual sphere has led to some changes that may stick around, adding he wasn’t sure where the court would be without it.
“I think there’s efficiencies in the docket created by the use of technology ... and I don’t think those are going by the wayside completely,” Campbell said. “I can’t wait for the masks to come off and the screens to come down, and I’m hoping, like everybody, that by the fall that’s what happens. ... But, yeah, I think the technology will be useful forever.”
Cheyenne attorney Cassie Craven agreed, especially in the case of civil litigation.
“We’ve learned that some of that formality and procedure ... could have been done by video, and that’s made a lot of civil things move quicker,” she said.
Campbell also said the pandemic has prompted district judges to review bond more frequently, both because of the extended timeframe of trials and to prevent overcrowding in the jail, where a congregate setting means the virus can spread more easily.
Transparency a concern
With access to courtrooms limited during the pandemic, court clerks must send video links or audio call-in numbers to attorneys, defendants, victims, witnesses and family members, as well as members of the public who request them.
These links, though, are not promoted to the public in any way, Craven pointed out. Although the virtual hearings have made many aspects of the court system more convenient, she said, it’s important for transparency to stay a priority.
“I think (the courts have) done the best job that they could, but I’ve seen a lot of people be frustrated with that,” she said. “... There’s tons of things that we can keep doing by video going into the future to, you know, streamline the court process, because it’s more efficient in a lot of ways. But for criminal stuff, I think that we really have to make those things publicly available and transparent to the public.”
In a January letter addressed to Gov. Mark Gordon, Wyoming Supreme Court Chief Justice Michael Davis, Senate President Dan Dockstader, R-Afton, and Speaker of the House Eric Barlow, R-Gillette, former state Reps. Allen Jaggi, R-Lyman, and Garry Piiparinen, R-Evanston, expressed concern that the state’s judicial branch was “closed to the people” because “most hearings are being held on private video with no notice to the public.”
Though call-in access must be requested, Campbell said the ability for the public to watch or listen to court proceedings virtually was actually a step up from before the pandemic, when any spectators who couldn’t make it to the courtroom in person were out of luck. He said beginning to conduct jury trials while seating is still limited may trigger the courts to start publicly posting these links.
The former state representatives also said the judicial branch’s system that allows public access to court documents, WyUser, is “not an open system.” Though it is true that WyUser cannot be accessed on personal computers, it can be used in a computer room on the third floor of the Laramie County Governmental Complex, 309 W. 20th St., which is open to the public during business hours.
A pause in jury trials
In their letter, Jaggi and Piiparinen also criticized the Wyoming Supreme Court’s decision to halt most jury trials, writing: “The accused are being denied the critical right to a speedy trial by jury.”
Beginning in mid-March 2020, the Wyoming Supreme Court issued periodic orders encouraging judges to use video and audio technology for things like arraignments, sentencings, and bond and probation hearings. The Supreme Court also ordered jury trials be paused, unless the court had a safety plan in place that had been approved by local health officials. Individual judges could also delay trials at their discretion based on health and safety concerns. At times, including in a Nov. 13 order, jury trials were suspended until further notice because of a spike in the state’s COVID-19 cases.
Without these orders, Campbell said, any case that was not tried within 180 days of the defendant’s arraignment, or in the “speedy trial” time frame, could be dismissed by the state.
The vast majority of criminal cases across the country don’t make it to trial, with defendants often taking plea agreements or simply pleading guilty. Still, not being able to hold a jury trial in Laramie County for nearly a year has resulted in “an 800-car pileup,” Manlove said.
For a criminal defense attorney, Craven said, one of the hardest things has been telling clients that you just don’t know when their trial will take place.
Though she doesn’t know whether the pause in trials has led anyone to settle for a plea agreement when they might not have otherwise, Craven said she wonders what goes through some of her clients’ minds when they’re weighing their options.
“How do you get your right to a speedy trial when nobody can even tell you when that is – when the future looks so dim that, what are your choices? Sit here for months and months and hope, and fight it, and then we don’t know (the outcome) – or get it done with?” Craven said. “I just can’t help but think that the reality of the situation has to go through people’s heads.”
In the more serious cases, Lozano said, defendants may be less concerned with a trial’s delay because it allows more time for their attorneys to prepare. Still, it’s not easy, especially if someone is sitting in jail, she said.
“I think defendants have struggled with it, and the best we can do is explain to them that the courts have followed the law, and we’re doing what we can do,” Lozano said.
With Laramie County District Court having recently put a safety plan in place, Campbell said jury trials would likely start up again in March.
“Whenever the court says boots on the ground, lawyers in the courtroom, we’ll be ready,” Manlove said.
Still, things will start slowly: only one of the district court’s courtrooms is large enough to accommodate a jury trial while following social distancing guidelines. This means only one trial will take place each week, and each of the four district court judges will try one case per month. A second courtroom will be used for jury deliberation.
This will limit what kinds of cases are tried, Manlove said. Complex criminal trials with multiple victims and lots of evidence can’t be handled in a week, with typical homicide cases taking anywhere from five to 10 days in a pre-pandemic world, she said.
“With the COVID plan, which requires frequent breaks, changes to jury selection, all kinds of accommodations for social distancing ... none of us really know how long a complex criminal trial (will) take,” Manlove said.
Laramie County currently has nine pending murder or attempted murder cases, she said.
Elsewhere in the state, a dozen jury trials have been set in Wyoming’s district courts, “with four or five completed,” according to a Feb. 9 news release from Chief Justice Davis.
“Circuit courts have also conducted half a dozen jury trials in 2021 alone, and have many more scheduled,” the release said.
In the same release, Natrona County District Judge Catherine Wilking, also the president of the District Court Judges Conference, said there was “little to no backlog in the district courts for the many non-jury matters on the courts’ dockets – probate, juveniles, child support, Title 25 cases, matters to be tried to the bench and non-jury criminal matters.”
When it comes to prosecuting the mountain of jury trials, Manlove said she isn’t concerned.
“We’ll get ‘er done, no question. We will rise to the challenge,” she said. “I’m not panicked, there’s no worry about our ability, we will get it done. It’s a question of what does that look like and how soon.”
And after nearly a year of jury trials being on hold, Manlove said she and others in her office are looking forward to getting back to what she called the “very best” part of being a prosecutor.
“We really want to try cases,” she said. “That’s the fun part of our job.”