ITV may be coming soon to a courtroom near you 

Posted: 1:00 am Mon, February 1, 2010
By Barbara L. Jones

Attempting to strike a balance between saving money and saving due process, a state Supreme Court task force has recommended that more criminal proceedings should be held by interactive television. Under the existing rules, ITV may be used only when there is no judge available in the venue county. The new rules would allow it whenever required by the interests of justice. (See this week’s Appellate Courts Edition for the complete text of the report and proposed rules.) Presently, ITV is most frequently used in the 5th, 8th and 9th Judicial Districts, but exact usage rates are unknown.

The report was unanimous, but there is a definite tone of ambivalence in the text, with the task force citing the following two reservations about ITV use:

• ITV appearances will most frequently involve indigent defendants and give rise to the perception that there is a separate system of justice for the poor or those who don’t speak English; and

• using ITV “as a permanent means to fill budgetary, process, or personnel gaps in the criminal justice system renders ITV as nothing more than a convenient excuse to perpetually underfund the criminal justice system.”

Hennepin County District Court Judge Charles Porter, who chaired the task force, told Minnesota Lawyer that the proposed rule changes are budget-driven and that having all court appearances in-person is a “luxury.” Nobody’s expecting a bright financial future, and current forecasts call for an 8 percent budget cut across the board in the state, he said. He added that the report would have been irrelevant if it wasn’t grounded in fiscal reality.

“If we had all the money in the world and 300 trial judges and gas was 25 cents a gallon we’d do things differently,” Porter said. “Nobody thinks [an] impersonal [court system] is better than personal, but get over it. That’s the reality of the 21st century.”

Courtroom key

So, in reality, ITV may be coming soon to a courtroom near you in cases ranging from petty misdemeanors to felonies.

The courtroom part is important. Public defenders felt strongly that the transmission be from one courtroom to another, not from a jail to a courtroom, said Krista Jass, chief public defender in the 5th Judicial District and a member of the task force. Otherwise, the use of ITV could diminish the formality of the proceedings, Jass explained. “For centuries we’ve invented ways to dramatize what a judge says,” she added.

The courtroom-to-courtroom requirement is one of the few restrictions the rules place on the use of ITV. The proposed changes would allow ITV not only when a judge is unavailable, but also where the defendant is in custody in a county not the venue county or in the interests of justice.

In contrast, the existing rules limit the use of ITV to only those “rare situations in which the Judicial Branch truly has an inadequate number of judges to cover all judge needs within a county, and more importantly, where there is a judge with the courage to make a finding — in order to meet the requirements of the rule — that the court system cannot continue to do everything asked of it,” the report pointedly notes.

Judges are committed to public service and are unlikely to say, “This needs to be done but I cannot do it,” Porter said. “But we’re not staffed or funded to do it and we’re stretched beyond the current ability to perform, especially in greater Minnesota with the distance between courthouses.”

No rest for the weary

The ITV procedure does not address any public defender staffing concerns because the public defenders will not advise their clients via ITV, but must always be physically present with the defendant, except in unusual or emergency circumstances specifically related to the defendant’s case, and only then if all parties agree on the record. There is no exception for felony or gross misdemeanor guilty plea proceedings or sentencings.

The rule attempts to strike a balance between preserving the attorney-client relationship and “getting the job done,” Porter said.

So public defenders in rural areas will still be driving from courthouse to courthouse, and will thus be unavailable to other clients during their drive time, said 9th Judicial District Chief Public Defender Kris Kolar. “There was a big push to do this because of budget concerns. It does not solve the public defender budget problems,” said Kolar.

The changes to the rules may radically alter the way justice is delivered but won’t solve any budget problems, Kolar said.

Porter said there’s only so much underfunded public defenders can do. “There’s no solution except hurling money at the public defender system,” he told Minnesota Lawyer.

In general, public defenders are not enthusiastic about the program. Their concerns go beyond the solemnity of the proceedings and the perception of justice, according to Jass. Many believe that by not putting judges and defendants in the same room, ITV has an actual, substantive effect on such things as the conditions of release. It’s easier for judges to make a connection with a defendant before them than one on a TV screen, she explained.

Prosecutors and others who like ITV are not trying to trample on the rights of defendants, said Stevens County Attorney Charles Glasrud, a member of the task force and president of the Minnesota County Attorneys Association.

“County attorneys in general and in rural areas in particular think it’s great. We thrive on it here in the 8th District. We can get things done promptly,” Glasrud said. He said he would like ITV even if there were no court budget issues to take into consideration because it expedites the process and it makes it easier for public defenders to do their jobs.