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Inside NJ municipal courts remade by the COVID-19 pandemic

‘The Wild West:’ Inside NJ municipal courts remade by the COVID-19 pandemic

Written by Andrew J. Goudsward at The Asbury Park Press

Published at 9:53 a.m. ET on Oct. 26, 2020

During a normal session, most New Jersey municipal courts are bustling places.
Judges whirl through cases at something approaching auctioneer speed. Between 6 million
and 7 million low-level cases — mostly traffic and disorderly persons offenses — are handled
in a typical year in more than 500 courts across the state.

But it all came to a sudden halt in mid-March as the pandemic closed municipal court
buildings and stay-at-home orders drastically cut the number of tickets written out across the
state.

The system has skittered back to life over the last three months, but in a form vastly different
from the pre-pandemic world. The state judiciary and towns across the state have crafted a
makeshift arrangement where cases can be handled over Zoom, through a new online
resolution program, via the mail and, only in rare cases, in person.

“The guidance basically leaves it as the Wild West,” said Michael Hoffman, a Vineland-based
municipal court defense attorney. “You don’t know what you’re going to get when you go into
an individual court or an individual online session.”

The result is a set up, municipal prosecutors and defense attorneys told the Asbury Park
Press, that allows the system to function, but causes almost daily headaches, inefficiencies
and confusion — and leaves some defendants out altogether.

The backlog of cases in municipal court has more than doubled from about 325,000 cases in
August 2019 to more than 740,000 cases as of August. The number of cases filed in
municipal court between July 2019 and June 2020 fell by nearly 25% compared with that
same span from a year prior, according to data collected by the state judiciary.

Defense attorneys have been left with questions about how to perform even the most
fundamental of tasks like entering their appearance on behalf of clients or requesting
evidence from prosecutors.

Municipal prosecutors have seen their workload expand dramatically from the new
arrangement, which prosecutors said was developed without their input.
The state judiciary has embraced expanding the use of technology in municipal courts, both
as a response to the limitations of the pandemic and as a way to reduce the burden on court
users, who can pay and address tickets online rather than spend a day in court.

“People have a greater ease, a greater comfort in using technology, and the court system
needs to be embracing that as well,” Judge Glenn A. Grant, the acting administrative director
of the New Jersey judiciary, said in an interview earlier this year. “So I do see a lot of the
work that we’ve done, particularly in the municipal area, being carried forward, even when
we are fully operational.”

The decisions have a far-reaching impact. Municipal courts are the most common way the
state’s 9 million residents interact with the criminal justice system, and have long been
criticized as money grabs for town governments.

‘Please unmute your microphone’

Court officials allowed for the reopening of municipal courts in June, with all but the most
serious cases being handled virtually. The judiciary left it up to individual courts to
determine which technology to use, but encouraged Zoom and Microsoft Teams.

Peter Lederman, a Freehold-based municipal court defense attorney and former prosecutor,
said there’s been a wide variation from town to town in how well the technology is working.
He said a proceeding in a small Warren County town was recently delayed for more than two
hours because court staff couldn’t figure out how to set up the Zoom conference.

Other towns don’t have the technological capability to handle hearings over Zoom and have
had to share with nearby municipalities, he said.

“There’s like a natural process going on where the system is imploding and the courts are
consolidating because of the lack of this resource,” Lederman said.

Once the hearings are underway, some defendants have usernames or phone numbers
displaying on Zoom rather than legal names, creating confusion over who is actually
participating in the conference.

Prosecutors speak with defendants in private Zoom “breakout” rooms, separate from the rest
of the court staff.

“A lot of time, believe it or not, is spent in a Zoom session on ‘would you please unmute your
microphone?'” said Brian Mason, the head of the New Jersey Municipal Prosecutors
Association and a prosecutor in several Morris County towns. “There’s a learning curve for
everybody.”

And beyond the day-to-day technological hiccups are deeper concerns over defendants who
don’t have computer access.

Court officials have relaxed previous rules that restricted plea-by-mail to only those facing
“undue hardship” in coming to court. In April, the judiciary added 400 offenses, mostly
minor traffic and fish and wildlife infractions, to its list of violations for which defendants
can plead guilty and pay online without appearing in court.

But defendants facing jail time, driver’s license suspension or community service still cannot
plead guilty through the mail. As a result, Jon-Henry Barr, a municipal prosecutor in Clark
who also works as a defense attorney, said there are “people getting lost in the process.”

“Right now we’re trying to see if they would engage in plea bargaining by mail and that often
accommodates a lot of people who cannot operate remotely, but if a remote engagement fails
and a mailing engagement fails, the case is simply being put off until we’re able to get them
physically back into court,” he said.

Even after the courts reopened this summer, fewer than half as many cases were resolved in
July and August compared to July and August of 2019, judiciary data show.

Defense attorneys said some of their clients have had municipal matters ongoing for nearly
two years. The backlog also means that municipalities will likely not have the same revenue
stream from the courts as they normally do.

Some found a silver lining in the pandemic-fueled upheaval. Elizabeth Trinidad, a municipal
court and immigration defense attorney based in Bridgeton, said the squares of Zoom court
sessions are frequently filled by litigants sitting in cars or quiet office corners, people who
haven’t had their day derailed by a municipal court appearance.

“It’s a good expansion of the tool box,” she said. “I’m not going to be as frustrated if I didn’t
drive two hours to court wait in line to talk to talk to a prosecutor and then the prosecutor
still hasn’t done what they need to resolve my case.”

A Zoom verdict?

The court reopening plan allows for in-person hearings and bench trials in municipal courts
only in matters that are “especially complex,” such as trials involving multiple parties or
witnesses or “significant evidence.” The cases involved must carry a substantial sentence like
jail time or the loss of a driver’s license.

Attorneys and prosecutors told the Press that very few in-person trials have been taking place
statewide.

Lederman said when he asked one municipal judge for an in-person trial for one of his
clients, he was lectured about all the administrative approvals the judge would have to secure
to allow for his request.

Lederman said while he has argued in one in-person hearing since the reopening, he has
serious reservations about the safety of court rooms. Many are old, poorly ventilated municipal meeting rooms where the air is stagnant, he said, an area ripe for the transmission of an airborne virus.

Prosecutors and defense attorneys who spoke with the Press were even more concerned
about the pitfalls of virtual trials.

Some expressed concern about evidence presentation. A tangible piece of evidence, like a bag
of drugs, can’t be passed back and forth between members of the court. If a document is
shown on screen, the rest of the court can’t see a witness’ reaction to its contents.

Defense attorneys express worries that prosecutors or attorneys might try to communicate
with witnesses while they’re testifying under oath.

And then there are the intangibles of face-to-face contact in a courtroom that can’t be
replicated on a Zoom conference. A witness squirming in their seat or shaking their leg. A
defense attorney’s withering cross-examination or a prosecutor’s incriminating closing
argument.

“If you’re really going to try to do an effective job, really try to make a difference, you’re going
to go for a face-to-face in-person hearing,” Lederman said, “There’s no other way to do it.”

‘Questionable’ judgments

Perhaps the most impactful change undertaken during the pandemic was the introduction of
an Online Dispute Resolution program that allows defendants or the defense attorneys
representing them to bargain with a prosecutor online, in hopes of resolving the case without
making a formal court appearance.

The program applies to 37 traffic offenses, such as speeding, failure to have an insurance
card, or failure to yield, infractions where defendants often seek to contest the charges or
plead guilty to a lesser offense.

The system allows prosecutors to either downgrade the initial charges or reject a defendant’s
proposal. If the offer is accepted, it goes before a judge for review. If no agreement is reached,
a virtual hearing is scheduled.

State Supreme Court Chief Justice Stuart Rabner said in a statement announcing the
program, which debuted in about 30 municipal courts in May and has since expanded
statewide, that “court users should not have to find childcare or take a day off from work” to
“resolve traffic offenses or routine matters.”

Municipal prosecutors and defense attorneys said they understood the merits of the program
for individual defendants, but raised concerns about the changes it has forced on their day to-day work.

Because it only allows each side to make one offer, it has altered the usual negotiation
process whereby prosecutors and defense attorneys stake out opposing positions and
gradually seek a middle ground.

Mason, the head of the New Jersey Municipal Prosecutors Association, said his association
was given “absolutely no input” in the system before it was rolled out. The group has worked
with the judiciary in recent months, but he said changes have been “slow.”

“We were not consulted or asked about the design of the program or it’s functionality. So that
is an adjustment for us and we have asked for changes to the system to make it more user
friendly,” he said.

Mason said some prosecutors email or call defendants and defense attorneys even before
engaging with the new program to determine what sort of a deal they are seeking before
making a formal offer.

He said prosecutors now have an array of daily tasks that either weren’t necessary before the
pandemic or could be completed in-person in court. Prosecutors now have to track down
emails and phone numbers for defendants, try to communicate with them ahead of their
scheduled court date, check online “work baskets” for cases in the new online system,
determine if cases can be resolved through the mail and fill out, scan and send plea forms.

The result is prosecutors “spending far more time in trying to resolve cases and prepare for
municipal court than they’ve ever had to before,” Mason said.

Hoffman, the Vineland defense attorney, said he hasn’t been able to examine evidence before
making an offer in the new online program, forcing him to negotiate with a prosecutor before
knowing all the facts of a case. (The state judiciary said such an exchange should be handled
directly between prosecutors and defense counsel, outside the new online program).

Hoffman said the design of the program, where cases are resolved without a defendant ever
laying eyes on a prosecutor or judge, leaves it vulnerable to “abuse and neglect.”

“There are going to be judgments that are questionable,” he said. “People are going to plead
guilty to things through an online portal, but they’re not going to know that they face certain
consequences because of that. And similarly, there are going to be prosecutors who are going
to offer a much better deal because they didn’t get a chance to look at the details of the case,
which they normally would do if it went to court.”

In a statement, the state judiciary said about 4,000 defendants have used the new online
program since it was rolled out and it was working “well.” The judiciary said it had worked
with the state Bar Association, the Municipal Prosecutors Association, private attorneys and
judges and court administrators on the new system and had conducted demonstrations
for prosecutors, public defenders and members of several county bar associations.

“The system is being adjusted as needs are identified,” the statement read. “We anticipate
expanding the system so that additional matters can be handled virtually.”

A ‘game-changing’ event?

The large-scale changes to municipal courts in recent months have led some to wonder
whether they will serve as a catalyst for other long-sought reforms to the system.
Multiple reports by state Supreme Court committees and investigations by USA TODAY
Network New Jersey have detailed flawed court practices and a perception that the drive
relationships between police officers, municipal prosecutors, judges and the elected
officials who appoint them.

Supreme Court committees have condemned arbitrary punishments that vary from town to
town as well as practices like seeking bench warrants or suspending driver’s licenses for
people who fail to pay court fines, moves that can have devastating consequences for the
poor. The committees have also recommended a host of possible reforms to the state
Legislature, but little has so far been changed.

Lederman, who supports court reform, said the system that has taken shape during the
pandemic — in which courts are “just an image on a screen” — may lead policymakers to
conclude that the current system is not sustainable. He said having more than 500 courts,
each with their own judges, prosecutors and court staff “made no sense.”

“By the stroke of a virus that system has now gone up in a puff,” he said. “It was something
that needed to be changed, but there was no force of nature to change it. The pandemic has
provided that radical force to shake it up.”

“I think this is that sort of game-changing type of event that will cause new things to
happen,” he added.

Others who work in the courts were skeptical or outright hostile of that view.
Mason said the concept of “home rule” remains highly valued in New Jersey and towns won’t
want to give up the ability to appoint their own judges and prosecutors.

But it’s clear to everyone that no matter how municipal courts evolve in the coming years,
technology will be an increasingly prominent part of the experience.

“Online courts are a blessing and a curse,” Hoffman said. “I think every one of us can see
some of the potential benefits of it. I also can see the potential problems with the them, the
potential injustices, the potential that people who are designing the system are not taking
into account the realties of the system.”

Staff Writer Kathleen Hopkins contributed to this report.

Andrew Goudsward covers, breaking news, crime and the municipal court system. Contact
him at agoudsward@gannett.com and @agoudsward on Twitter.

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