Reversal on Westchester County Jail’s COVID-Based Virtual Court Unit Raises Constitutional Issues for Defendants and Press Alike

Written By: Robert Cox

WHITE PLAINS, NY (April 15, 2022) — The Westchester Department of Corrections has reversed a decision announced earlier this month to dissolve the Virtual Court Unit after almost two years due to an increase in cases of the BA.2 subvariant of Omicron.

On April 7, New Rochelle City Court, Judge Jared R. Rice told lawyers in his courtroom that the Westchester County Jail was dissolving virtual operations.

County officials confirmed that decision the next day citing improvements in COVID conditions, saying courts, police departments and legal aid services were notified that the Virtual Court Unit would cease operations on Monday April 18th

In court on Thursday, Judge Rice said the decision to dissolve the Virtual Court Unit had been put on hold due to increasing cases of the BA.2 subvariant of Omicron which had become the dominant COVID-19 strain in the United States, according to the Centers for Disease Control and Prevention.

“Corrections made a decision to continue to facilitate local/county virtual court hearings and will not be modifying that practice on Monday, April 18, 2022 as previously noticed,” said County spokesperson Catherine Cioffi. “WCDOC will continue to monitor internal and regional COVID activity and transition back to an in-person court appearance model when conditions safely support doing so.”

One of the new features of the justice system since the initial wave of COVID-19 in 2020, has been the installation of video conferencing systems in courtrooms across the county with attorneys and defendants making “virtual” appearances before judges.

Almost all lawyers and most defendants prefer virtual courtroom appearances because they can make court “appearances” from the comfort of their home or office.

One recent out-of-state DWI defendant, told his license was suspended in New York, shrugged off the judge’s order.

“I don’t live in New York,” replied the defendant while appearing on a television monitor sitting behind the steering wheel of a car in Pennsylvania.

Over the past two weeks, after almost two years, county prisoners have been produced in court

The Virtual Court Unit at the Westchester County Jail in Valhalla was “set up to support court appearances when it was deemed unsafe to do so in person,” said Westchester County spokesperson Catherine Cioffi.

“I don’t believe we have seen you before,” said Judge Anne E. Minihan, as defendant Mary Thompson, the New Rochelle librarian turned bank robber, appeared before her in the Westchester County Mental Health Court on Tuesday April 12.

Thompson was arrested on May 20, 2021.

New York State courts were closed on March 16, 2020 for all non-essential functions due to the pandemic. On June 30, 2021, courts in Westchester gradually increased in-person proceedings in the courthouses although jury trials remain unavailable to defendants.

The class of defendants perhaps least enamored with virtual court appearances has been prisoners at the Westchester County Jail who have been denied the opportunity to see (even briefly) friends and family supporting them in the gallery or, at least, to break the monotony of their incarceration with an outing to a local or county court.

Defendants must consent to appear virtually.

In the last two years of covering courts in Westchester County, this reporter has never seen a defendant refuse consent for a virtual appearance raising questions of coercion.

Despite the consent requirement, virtual court appearances by prisoners may raise serious Constitutional issues: the placement of the monitor, often facing the judge and court stenographer and away from the gallery; the often small “windows” that display when multiple lawyers and defendants appear on the monitor screen at the same time; that prisoners are only partially in frame and typically seated; combine to make it difficult, even impossible, for the public and press to see that the prisoner on screen is the person named in a particular accusatory instrument or indictment and to evaluate the health and overall physical condition of the prisoner.

The implementation of virtual court appearances by prisoners, which was perhaps understandable in the early days of the pandemic when so little was known about how the virus spread, before there were vaccines and therapeutics, before the sharp decline in the virulence of successive variants, makes little sense today.

Questions arise as to the standard set out in the Suspension Clause, Article One, Section 9 of the U.S. Constitution which precludes the suspension of privilege of the writ of habeas corpus except “when in cases of rebellion or invasion the public safety may require it”. 

A pandemic is not an armed uprising.

The continuation of the VCU into 2021 and now 2022 raises Fourth, Fifth, Fourteenth Amendment issues for the defendant and First Amendment issues for reporters covering the courts.