FARGO ― It's not uncommon for 50 people to sit in a Cass County courtroom as they wait for their cases to be called by a judge, and finding an empty spot that's not next to a stranger can be difficult.

But a worldwide pandemic has changed how the court operates. On a recent Friday, I sat alone in the gallery of a courtroom, watching a judge set bail for inmates who appeared from the Cass County Jail via teleconference. Another inmate who usually would be brought to the courthouse for his hearings sat in a jail room filled with chairs as he appeared remotely for an hourlong review hearing on whether he could represent himself at trial.

Along with more remote court hearings, the schedule for hearings has become much lighter. Judges in Cass County had 175 criminal cases on their docket on Wednesday, March 18, a day after North Dakota Supreme Court Chief Justice Jon Jensen issued an order saying judges had discretion in scheduling criminal hearings, aside from jury trials. Those have been suspended through April 24.

On Wednesday, March 25, there were only 36 criminal cases on the docket.

Most, if not all, courthouses in North Dakota have closed to the public, though some appear to be holding court hearings. People are allowed to make appointments to meet staff if needed, but some business will be done over the phone.

Multi-person hearings that are held in-person also have stopped, pursuant to Jensen's order. Defendants also can enter guilty pleas in writing and not be present for sentencing, Jensen said during a Sunday, March 22, news conference in Bismarck.

Dane DeKrey, advocacy director for the American Civil Liberties Union of North Dakota, said he wished the state would hand down definitive direction on what judges should do during this crisis. He said it creates uncertainty and inconsistencies from county to county. People may be confused by what other jurisdictions are doing and wonder if those practices match up with judges they have to deal with, he said.

“It kind of sows distrust in the system. This is a moment where it is already important for all of us to get this right," he said. "It’s hard to know how to adjust when things are different courthouse by courthouse."

The Minnesota Judicial Branch has handed down an order on how courthouses should operate and which hearings will be held. Criminal hearings continue, but trials have been suspended through April 22. Testimony can be submitted remotely, and courts can use teleconferencing to hold hearings. Public access is limited to those who are essential to the hearings, such as defendants, victims, witnesses, judges, attorneys and court staff.

In North Dakota, Jensen has said district judges, local staff and attorneys are in the "best position to evaluate and decide which proceedings should proceed forward and whether alternative forms of appearance can be arranged.”

“We’re going to carry out those essential functions in a way that minimizes the risk of exposure to both our court team members as well as our court users,” he said. “It is important for our court to be nimble during this pandemic.”

'21st century justice'

DeKrey commended Cass County for its efforts to protect defendants, including moves to reduce its jail population and allow hearings to be conducted via teleconferencing. It helps administer justice more quickly without putting people at risk, he said.

“I think Cass County deserves a ton of credit for getting ahead of this and for understanding that we’re going to have to loosen up some of these perhaps rigid, perhaps archaic rules that require in-person appearances when we all know that we don’t need them,” DeKrey said.

During the evolving situation, Cass County State’s Attorney Birch Burdick said his office and others in the judicial system are trying to balance guidance from public health officials with criminal justice needs to assure defendants' rights are upheld so they can “forge a path together to satisfy both.”

DeKrey said the pandemic is making people realize they can do things differently, including work more from home, have hearings without appearances and allow some defendants to be out of jail without bond. Perhaps the crisis will prompt change toward “21st century justice” and streamlining, he said.

Burdick and other Cass County leaders floated the idea of issuing more promise-to-appear bonds and releasing low-risk inmates from the Cass County Jail so it would have enough space to separate sick inmates from healthy ones. Sheriff Jesse Jahner said other practices, such as not booking people for minor crimes, have helped lower the jail population.

Jahner told The Forum doesn't foresee the jail releasing inmates in the near future.

Pretrial reform

DeKrey said the release of inmates from facilities while they await trial, as some governments have done across the country during the coronavirus crisis, is a “real-life test case” for pretrial reform. It may prove that more inmates awaiting trial can be out in the community without bail but on monitoring while not committing more crimes, he said.

“It’s a sad irony that a once-in-a-lifetime global pandemic is making prosecutors come around to the things we have been saying for years,” he said. “I hope that this is really an opportunity for us to rethink it and make the move forward."

There is concern rights, including to a speedy trial, could be violated during the pandemic, he said. There is case law that allows trials to be postponed during emergencies.

DeKrey said he believes people understand the situation is unusual enough that trials need to be suspended. The ACLU will monitor the policy changes that temporarily hinder rights to make sure they aren’t continued after the crisis subsidies, he said.

“This is kind of a time of faith for everybody,” he said.

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