The Courthouses are closed! What happens to my case now?
If you or a family member were arrested for a crime in the past few months or have a pending case, you may be concerned about the physical closure of Wisconsin Courts. What will happen to your case? Do you need to appear in person at a crowded courthouse? Are the courts online? Read on for information on how Wisconsin Circuit Court's are handling the pandemic.
Supreme Court Order:
As background, in March of this year, to contain the spread of the coronavirus, the Wisconsin Supreme Court issued orders postponing jury trials and suspending in-person proceedings statewide, with certain limited exceptions. Courts were encouraged to continue proceedings using Zoom videoconferencing or telephone conferences whenever possible. The degree to which Zoom, and telephone conferencing has been implemented varies widely county by county.
Do I have a right to be physically present?
Statutorily, a Defendant has the right to be present at almost every stage of a criminal case: Wis. Stat. 971.04 outlines the hearings at which a Defendant has a statutory right to appear, with limited exceptions:
Voir dire (jury selection) of the jury trial
Any evidentiary hearing
Any viewing by the jury
When the jury returns its verdict
The pronouncement of judgment and imposition of sentence
And at any other proceeding when ordered by the Court.
As those of you have appeared in or watched a criminal case know, many court appearances are brief procedural hearings designed to keep a case flowing towards a resolution. My FAQ to Criminal Court Procedure, provides an overview of the typical appearances in a criminal case. To prevent a logjam of cases stalled in their tracks, Courts have turned to telephonic hearings and Zoom conferences for most court appearances.
Do the Zoom and telephonic hearings work?
In my experience, Zoom hearings work well for non-evidentiary hearings such as status conferences, simple plea and sentencings and other straightforward hearings. For hearings such as motions and trials, Zoom is insufficient. Nothing stops a cross-examination in its track like a technical glitch or internet outage. Further, jurors and Judges are not physically present in the room to make important credibility determinations and to gauge the demeanors of all involved.
For this reason, criminal cases that require litigation rather than a negotiated resolution are being postponed until a time when the Supreme Court deems it safe to proceed. It also means that District Attorney’s Offices and Judges have backlogged caseloads. Now is the time to strike a good plea deal in Wisconsin. It will be interesting to see how the circuit courts handle the backlog of jury trials in the coming months.
What about the public’s right to be present?
One other concern that the courts have faced is that per state statute with limited exclusions all courtrooms are open to the public. Pursuant to Wis. Stat. 757.14, “the sittings of every court shall be public, and every citizen may freely attend the same…” To solve this problem, most courtrooms are now available to watch via livestream on YouTube. If you’re a big legal fan (or really bored) here is a link to all available YouTube streams throughout Wisconsin: WI Courts Livestream.
When will the Courts fully reopen?
The short answer is it is unclear. The Supreme Court issued its final report on May 15, 2020. The order tells each county to form a “Covid-19 Recovery Planning Jury Committee” and goes on to include numerous suggestions as how to implement safe practices. Practically, observing the size of many of the Courtrooms, and jury selection rooms, throughout the state implementing this Order will be difficult. Only time will tell.
If you have additional questions regarding the Wisconsin court system’s handling of COVID-19, don’t hesitate to contact criminal defense and drunk driving defense Attorney Dan Skarie.