Commentary

Applying COVID-Prompted Changes to Our Advantage: The Potential for Improving Client Services

By Russell Turkel

Russell Turkel is a federal sentencing consultant and a criminal defense attorney at Scott H. Palmer, PC, in Addison, Tex. Prior to joining the law firm, Turkel worked for the U.S. Probation Office in the Eastern District of Texas, during which time he served as a presentence investigation officer, guideline specialist, and supervisor of a pretrial and presentence unit. He retired from the federal judiciary after a 20-year career. In addition to focusing on federal criminal defense law, he now provides federal sentencing consulting services for other attorneys, including assistance with plea negotiations, analyzing presentence reports, preparing objections to presentence reports, and drafting sentencing memoranda and departure/ variance motions. ©2021 Russell Turkel. All rights reserved. The views and opinions expressed in this column are those of the author and do not necessarily reflect the views or positions of any entities he represents.

Federal Rule of Criminal Procedure 32(b)(1) mandates courts to impose sentences without unnecessary delay; however, as we have heard time and time again, and perhaps have even advised our clients who have become impatient waiting for their day in court, the wheels of justice grind slowly. Yet, in 2020, when much of our society, including the federal courts, took aggressive steps to prevent the spread of COVID, the wheels of justice nearly ground to a halt due to the widespread health concerns related to holding in-person hearings. Uncertainty reigned throughout the judiciary, yet the resolve of the federal courts to find innovative ways to prevent a total shutdown and to continue business as usual was priority number one. In the early days of the pandemic, some courts took a cautious wait-and-see approach, whereas others attempted to continue in-person hearings by limiting attendance in the courtroom. Regardless of their initial stance and the impediments they all faced, the courts cleared many hurdles and ultimately adopted efficient practices that are now tools that defense attorneys, federal sentencing consultants, expert witnesses, and others can use to their advantage.

The Sixth Amendment guarantees an individual’s rights to confront witnesses, to privately confer with counsel, and to have speedy and public trials.1 Yet, with a never-before-seen health crisis at hand that effectively shut down in-person hearings, courts grappled with how to ensure the rights of defendants while enacting safety measures that could potentially interfere with witness confrontation, prevent (or at least severely limit) the public’s ability to attend court hearings, and put strains on the ability to safeguard private attorney-client conversations. Adding to the constitutional protections afforded by the Sixth Amendment, federal defenders owe an ethical duty to zealously defend their clients. However, attorneys soon learned that even the basic function of meeting with clients at jails was significantly hampered due to safety protocols that prevented contact visits. Complicating matters was that, while both sentencing hearings and transfers from local jails to the Bureau of Prisons were being delayed, newly arrested people were being introduced to confined, sometimes already-overcrowded spaces, promoting the spread of COVID. The inmate population was, in turn, subject to COVID infection at a far greater rate than the general population. The effect of these infections led to clients being quarantined, unable to have regular, in-person visits with their attorneys until they received the all-clear from the jail medical staff. The statistic of how COVID attacked inmates as opposed to the general public is nothing short of staggering: coronavirus infection was significantly higher in prisons than in the general population, and inmates had more than a sixfold risk of becoming infected with COVID.2

Mark Twain perhaps said it best when he coined the phrase, “Necessity is the mother of taking chances.” Although video conferencing had been used for decades, its use in the federal courtrooms, jails, federal holding facilities, detention centers, and prisons was limited due to various concerns, including bandwidth capabilities, potential technical malfunctions, cost and quality of the broadcasts, and security concerns. Yet, with the arrival of COVID and the health concerns it presented, the courts, in particular, were in the position where an indefinite suspension of all hearings until the pandemic simply passed was not an option. Faced with many uncertainties, not the least of which was the proper handling of criminal cases through virtual hearings, federal courts were forced to make changes on the fly, taking calculated chances on “e-hearing” practices almost immediately. As Northern District of Texas Chief Judge Barbara M.G. Lynn said soon after the pandemic erupted, “The ideals of justice and rule of law are vital to our country, and

those principles cannot stop. But we need to temper a desire to go full speed ahead with a focus on safety.”3

One of the major obstacles in the way of the then-soon-to-be virtual hearings was how Federal Rule of Criminal Procedure 53 would apply in the COVID era. The rule, which prohibits courtroom photographing and broadcasting, explicitly states, “Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”4 Recognizing how COVID could negatively affect the criminal justice system and identifying an urgent need for action, Congress passed the CARES Act, which included a provision authorizing the use of video teleconferencing or telephone conferencing during the emergency period, subject to consent of the defendant.5 It also included provisions for video visitations in the Bureau of Prisons, authorizing free video teleconferencing and telephone calls for inmates during the covered emergency period.6 The door was open for the federal courts to resume sentencing, albeit in a somewhat unconventional way, and for attorneys to effectively communicate with their clients, as ethically bound.

Although the Bureau of Prisons had modified its operations to suspend family visitations in response to COVID to protect the safety of inmates and correctional officers, the federal prison system soon recognized the need for increased access to counsel and legal material as courts, which had transitioned to routine video and telephone sentencing hearings, began conducting more criminal proceedings. As a result, the Bureau of Prisons followed suit by easing restrictions on telephone and video conferencing between inmates and outside counsel in an effort to accommodate legal communications.7 The change prompted both easier access to inmate clients and facilitated attorney-client communications.

With change comes inevitable challenges; however, with the change to virtual jail/prison visits and virtual court hearings, what courts and defense attorneys have seen are opportunities for growth, for increased efficiency, and for improved services to criminal defendants. The once-dubious reputation of video calls and the concerns surrounding teleconferencing have been replaced by developments of password-protected security protocols, the advancements of protecting private attorney-client communications, and the ease of exchanging electronic documents between attorneys, between attorneys and their clients, and between attorneys and court personnel. Technology continues to improve, society at large has become more accepting of teleconferencing, and the practices of handling inmate interviews and conducting federal sentencing hearings have become more routine. The benefits are felt beyond the courtroom, as attorneys who can now participate in interviews with inmate clients via video from the comfort of their own office (or, if teleworking, from their home) are able to allot more time to their practice and less time both traveling to and from jails and sitting idle while awaiting the transport of inmates to interview rooms. The hiring of federal sentencing consultants has become much more feasible, as remote access to inmates for presentence interviews, review of presentence reports with attorneys and detained clients, and assistance with sentencing hearings facilitate their presence at key stages of the sentencing process, which improves the potential services criminal defendants can now receive. Through electronic file sharing, attorneys, expert witnesses, and federal sentencing consultants are now able to immediately access the entire cache of discovery from their desktop rather than fumbling through pages of documents in a high-pressure in-person hearing or inside a cramped contact room. While attorneys can and will continue to improve efficiency in time, effort, and costs, the true beneficiary of COVID-prompted changes will be the client, who will now be able to receive more effective counsel, higher quality services, and more expedient access to the courts than most could have envisioned at the onset of the pandemic. 

Endnotes

1U.S. Const. amend. VI. 2Abigail I. Leibowitz et al., Researchers Urge Prison Policy Changes to Fight COVID, Harv. Gazette (Aug. 9, 2021), https://news.harvard. edu/gazette/story/2021/08/crowding-in-prisons-increases-inmatesrisk-for-covid-19-infections/. 3As Courts Restore Operations, COVID-19 Creates a New Normal, U.S. Cts. Judiciary News (Aug. 20, 2020), https://www.uscourts.gov/ news/2020/08/20/courts-restore-operations-covid-19-creates-newnormal. 4Fed. R. Crim. P. 53. 5CARES Act, Pub. L. No. 116-136, 134 Stat. 281 (2020). 6Id. 7Fed. Bureau of Prisons, BOP Modified Operations (Nov. 25, 2020), https://www.bop.gov/coronavirus/covid19_status.jsp.

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