We can observe and report on bail review hearings thanks to changes in Maryland courtroom guidelines instated in March 2020 in response to the COVID-19 pandemic. When Baltimore Courtwatch was founded, our only option was to attend these hearings in person. As the pandemic reached the U.S. and the nation shut down, physical courtrooms were also closed. Soon judicial orders made bail hearings virtual and we had motivated volunteers with free time on their hands due to work shutdowns and stoppages. Nearly three years later, the Maryland General Assembly is debating whether to make virtual courts a permanent option.
The question currently facing legislators in Annapolis is whether to keep bail hearings accessible virtually (either by video or audio) and whether to extend virtual access to other proceedings. They are deciding whether to allow virtual access for not just formal courtwatch groups, but for family members, supporters of individual defendants, and members of the general public to attend and observe proceedings they would not be able to attend in person due to work, childcare, health issues, and transportation. One example of this is when teachers and school administrators can log in from their classroom or office to give support to students who are being charged as adults, rather than taking a half day off of work for something that can take less than five minutes.
In the early days of the pandemic, when we thought the shutdowns and remote access would be temporary, we scrambled to listen to as many dockets and cases as possible, giving us a better handle on the bail review process. As time went on, we realized we had amassed a large amount of data that is available through no other means than sitting through the hearings.
Because of virtual access, courtwatchers in Baltimore and other places can generate an enormous amount of data and provide this information to the public. This includes prosecutor’s requests, pretrial services recommendations, and conditions imposed by judges. We have informed the public on the rates of incarceration by individual judges over time and rates relative to each other. We have been able to record and compare how judges treat children versus adults.
Without attending these hearings, much of this information is only available through the very expensive process of ordering and analyzing the court transcripts. Ordering transcripts for each of the more than 5,600 hearings Baltimore Courtwatch observed would cost tens of thousands of dollars. This is nearly impossible for the overwhelming majority of the general public, including our organization. Additionally, transcripts do not offer the ability for real-time observation, as they can often take over a month to be delivered.
This is not just about collecting data. It is about what we hear judges and prosecutors say. It is about the stories of the people behind each bit of that data. We are not the arbiters of justice or ethics. However, we do believe that the public has the right to know when a judge tells someone awaiting a trial that, because they have “chosen” to be arrested, they do not love their children and do not deserve to be at home while in pretrial status. The constitutional basis for open courtrooms is well established. Not just to satisfy public curiosity — it is the primary way that judges and prosecutors are held accountable for their actions.
There is an accountability process if something unethical happens in a hearing. Theoretically, judges and prosecutors can be sanctioned for their actions by the Commission on Judicial Disability and the Attorney Grievance Commission, respectively. However, the public’s ability to hold the state accountable is obviously dependent on what the public knows. It is crucial that the public knows what is being done in their name so they can make informed decisions. Access to the courts allows the public to know judges’ and prosecutors’ records when they vote. Imagine not having access to the votes your legislators took in your name. Barriers to the public’s participation are barriers to accountability.
For all the reasons that virtual court access is good for the bail review docket we monitor, it is also good for other court proceedings, including jury and bench trials. Aside from the parties in a case and their families and supporters, very few people, unless court-ordered, are able or willing to take an entire day off of work to attend a trial. The ability of the public to see and hear for themselves what is happening in our courtrooms is integral to transparency. This was evident in the various trials of Keith Davis Jr., a survivor of a brutal police shooting in 2015. Keith was subsequently charged with a slew of crimes and subjected to five trials before being released in January. There was more than one person who came hoping to see Keith convicted only to listen to the evidence and testimony and realize the state was prosecuting an innocent person. When someone observes a hearing, the courtrooms that exist in the popular imagination shatter, leaving only the truth.
It is vital that steps already taken to make some of the courts virtual and more accessible to the public continue. More of the judicial system must become eligible to be virtual in the interest of the public and judicial accountability.