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This in an important article, one that outlines the risks associated with breath testing during a pandemic.  Is your client at risk in providing a breath sample? Is the officer at risk in taking one? Beyond the hype, what does the known epidemiology of disease transmission under similar circumstances tell us? This article will discuss how COVID-19 will likely impact alcohol and drug related criminal investigations, now and in both the foreseeable future and perhaps, the long term under our “new normal.”

The pandemic has impacted all aspects of our society – from how and where we work, how we go to school, attend court, or eat in a restaurant.

DUIs, DWIs, breath test refusal cases and DREs will not – and more importantly should not – be done the same way in the future. Your client’s physical response to breath or blood testing may be different. What officers have been trained to believe about drug related driving offenses may no longer apply. Even the frequent use of hand sanitizers – which we should all be doing along with wearing a mask and physical distancing – may impact blood testing and urinalysis.

Before we begin, I have one caveat. This article uses information that is available as of the end of September 2020. Much is currently unknown about COVID-19, and its long-term impact on humans won’t be known until, well… the long term. So, if you’re reading this a month or two from now, or a year or two, this information may have – and probably will have changed, perhaps drastically, as we better understand the overall effect of COVID-19 on humans.

The Potential for Disease Transmission

First, let’s discuss the risk of disease transmission through breath alcohol testing – particularly roadside testing using portable testing units.

The story is simple. Your client is stopped for a vehicle infraction or roadside sobriety check. A breath sample demand is made, and a Preliminary Breath Test (PBT) instrument produced. Your client refuses the test on the grounds of the potential for disease transmission.

Is this a reasonable excuse?

What are the disease transmission risks involved with providing breath samples into a PBT in light of the current international pandemic of coronaviruses and specifically Corona Virus Disease 2019 (COVID-19)?

Well, as with most situations, it depends…

• If we have a test subject (your client) with no predisposed medical conditions that make them unlikely or less susceptible to coronavirus transmission, and;
• If we have an officer who has taken all reasonable precautions to prevent the transmission of any communicable disease, including but not limited to:
  • The use of appropriate Personal Protective Equipment (PPE)
  • Disinfection of the PBT before each and every use

Then the disease transmission risk may be considered acceptably low.

The problem, of course, is that no one, other than those who have been exposed, infected, become sick (either symptomatically, or asymptomatically), and recovered and who now have COVID-19 antibodies are unlikely or less susceptible to getting COVID-19. Basically, you’re only truly safe if you’ve had it and recovered. We think… there are now a number of reported cases of persons who were infected, tested positive, recovered, and are now ill again with COVID-19. 

If, on the other hand:

• Your client is immunocompromised
• Your client is on medication that suppresses their immune system
• Your client’s family situation includes:
  • living in a multi-generational home with elderly family members,
  • living with a person with a pre-existing, high-risk condition, or
  • a child or spouse with a health condition
• Your client is a high-risk worker (essential service worker, health care provider, first responder, etc.)
• The officer produces a PBT, with an unverified level of cleanliness, not using any PPE, or minimal PPE

Then the disease transmission risk may be considered unacceptably high. This list is, of course, not exhaustive. There are any number of situations that constitute a “high-risk” background.

In addition to being designated in court as an expert in breath alcohol testing, I have some background in infectious disease control. I was the designated Chief Infection Control Officer for the Saskatoon Police Service from 1997 – 2002. I authored the Infectious Control Reference Guide and created the surrounding policy and training for police members regarding infectious control that was adopted by various police agencies across Canada. We were concerned with disease transmission from crime scenes, arrests, contaminated evidence, in the detention facilities, etc. I was a Primary Care Paramedic and served as the Chief Instructor in Emergency Response at both the Saskatchewan Police College and Saskatoon Police Service, and instructor for the First Responders program. I sat on the Instructor – Trainer’s Advisory Committees for both the Canadian Red Cross and the Saskatchewan Heart & Stroke Foundation, where we investigated disease transmission between participants during First Aid and CPR training.

How Coronaviruses Spread

For the most part, health officials think that human coronaviruses, including but not limited to SARS-CoV-2 (which causes the subsequent infectious disease COVID-19), cause infections of the nose, throat and lungs. Coronaviruses are most commonly spread from an infected person through:

• Respiratory droplets generated when a symptomatic or asymptomatic infected person coughs or sneezes
• Aerosolized droplets coming from a symptomatic or asymptomatic infected person’s exhaled breath from talking
• Aerosolized droplets inhaled into the lungs from a symptomatic or asymptomatic infected person
• Close personal contact, such as touching or shaking hands with an infected symptomatic or asymptomatic person
• Touching something infected with the virus, then touching your mouth, nose or eyes before washing your hands appropriately or using a hand-sanitizer

This is why the simple act of wearing a mask, washing your hands frequently, and not touching your face is so important. Yes, masks are uncomfortable, hot, and sticky. (And, no, they don’t lower your oxygen levels or increase your carbon dioxide levels.) They may lower your viral exposure, keeping you from getting COVID-19 in the first place, or reducing the severity of the disease if you do come in contact with a carrier.

Current evidence strongly suggests person-to-person spread is efficient when there is close or prolonged contact, without the necessity of actual physical contact. Again, keep in mind that First Responders, including police officers, are essential service workers who are at greater risk of being in contact with persons who are infected or potentially infected, and as such, are at greater risk of passing the virus onto others, including members of the public that they come into contact with during the course of their duties.

It is currently well established that the disease transmission of the virus occurs before the infected person becomes visibly symptomatic.

The dosage of the micro-organism required for transmission of the coronavirus is measured in microns. The size of the coronavirus itself is just 0.1µ (microns) in diameter. The strength and degree of transmission from an infected person to another person is considered very high, and the pathogenicity, or seriousness, of the resulting illness (COVID-19) is deemed extremely high.

Epidemiology and Breath Alcohol Testing

It must be recognized that both the disease transmission ratio of coronaviruses and the mortality rate of COVID-19 are higher than the seasonal flu. Transfer of the virus can occur from person-to-person, and from objects to a person. By its very nature, breath testing places the officer and test subject into close physical proximity, in violation of most health agencies’ guidelines of distancing at least 6 feet from one another.

The officer conducting the breath test at roadside will have their hand within 1-2 inches to the test subject’s nose and mouth. Potentially contaminated items (the hand of the officer, regardless of gloving, and the PBT used for the breath test) are located immediately adjacent to the test subject’s nose and mouth.

Let’s personalize this a bit to illustrate the transmission mechanism. I would like you to try an experiment at home. Go get a bottle of perfume or cologne, one that may not have been used for some time. Hold the bottle of perfume or cologne, used perhaps within the last few weeks or even a few months ago, under your nose. Without activating the pump, sniff around the spray tip. Can you smell the perfume? Congratulations! If that perfume was a virus, you’ve just introduced a viral agent into your nose, air passages and lungs. You may now be infected. It is that easy.

We don’t actually know the dosage required for infection, but recent studies in China found that people with more severe infections tended to have higher viral loads, another important reason for wearing your mask, which may cut down the amount of virus you receive – potentially below the infectious dose.

“The truth is, we really just don’t know… I don’t think we can make anything better than an educated guess.”

– Angela Rasmussen, Virologist, Columbia University, New York. (as reported in The New York Times, May 29, 2020)

The pathogen is proving the familiar adage in toxicology, coined by Paracelsus more than 500 years ago: “The dosage makes the poison”. For SARS¹, the infective dose was considered to be just a few hundred particles. For MERS², the dosage required is much higher, on the order of thousands of particles. The Coronavirus (SARS-CoV-2) is more similar to the SARS virus, and therefore, the dose may be just hundreds of particles. Nobody really knows for sure.

Regardless of gloving or the use of other (PPE), the officer’s hand and the PBT will be within the protective field of the test subject. Like our illustrative perfume, any contagion, including viral contamination, will be in the immediate vicinity to the test subject’s nose and oral pathway. This is currently identified as the most accessible route of entry of the coronavirus into the body of an uninfected person.

Additionally, the World Health Organization has established that the coronavirus can remain active on non-porous or hard-surface objects for anywhere from a few hours to several days. Many health agencies identify that these items include electronic devices such as cellular phones and television remotes. These are similar in design and operation to the PBTs used by police in the sense that they are constructed with a hard-plastic exterior, are used as handheld devices, and as with cell phones, are deployed in close proximity to a person’s face, nose, and mouth.

But wait – PBTs have a disposable mouthpiece for sanitary use…

Breath alcohol testing is unique in that the operator is attempting to obtain a sample of “deep lung” air from the test subject. This air sample is being obtained from the alveolar sacs of the person blowing into the PBT. Unfortunately, the alveolar sacs are precisely where the virus is resident in the human body, and the mechanism of carrying the virus (exhaling the deep lung air) brings the virus out into the open.

The disposable mouthpieces used on the PBTs are intended only as a means of providing a clean surface between the test subject’s mouth and lips, and the device itself. They do not provide any means of epidemiological protection in any other regards. Most disposable mouthpieces use a pass-through design, and do not incorporate a one-way valve to protect either the officer receiving the breath sample, or the person providing the sample.

Even the so-called “spit-trap” used in certain mouthpieces easily allows pass through of liquids, exhaled air and the potential for contamination, as shown in Figure 1. Disposable mouthpieces cannot be considered an effective barrier to disease transmission efficacious enough to prevent the transfer of viruses, including coronaviruses.

In March 2020, one breath testing manufacturer, Intoximeters, Inc., identified three main paths for the transmission of contamination during breath testing:

1. Breathing aerosolized particles
2. The breath test subject could be contaminated from particles from a contaminated instrument.
3. The Breath Test Operator can become infected from an infected test subject.
4. The test subject could be contaminated from an infected operator
5. Skin contact with contamination from the breath sample.
6. Skin contact with saliva or other bodily fluids deposited on the instrument.

As a result of their warning, Intoximeter, Inc. had established a specific recommended cleaning and disinfection timetable in the use of their instruments and had provided detailed instructions for both evidentiary units and roadside PBTs. They stated that their recommended procedures for disinfection would normally take between 10 – 30 minutes per device.

Withdrawing a Warning…

Notice that I put this in past-tense. These recommendations were posted on the Intoximeter website (in March 2020) but have since then been removed. This begs the question – Why?

Was there pushback from police agencies, worrying that by NOT following the recommended manufacturer’s procedures they would expose themselves, not only to the virus, but to liability for not following standard practice? The virus hasn’t changed. The threat hasn’t changed. Virus transmission understanding has not changed. Why withdraw procedures to decontaminate these devices?

Cross Contamination from Breath Testing Devices in the Clinical Setting

Currently, there is no known research on disease transmission during roadside breath alcohol testing. The closet analogy concerns pathogen transmission during pulmonary function testing using hand-held spirometry devices, commonly found in physician’s offices and pulmonary function labs, and performed routinely among COPD (Chronic Obstructive Pulmonary Disorder) patients.

I had the opportunity many years ago to perform pulmonary function tests on patients using these devices when I participated, as one of the principal researchers, on the ability of COPD or Asthma patients to provide breath samples into roadside screening devices, so I’m very familiar with their design. The spirometers are remarkably similar in form and function to hand-held PBTs.

Research over more than 20 years has shown that the potential for cross-contamination of pathogens between patient and operator, and more alarmingly, between patients being tested by contaminated spirometers has been established. The risk is of sufficient concern to require further research and recommendations for control strategies. Researchers Rasam, et al write, “Cases of cross infection acquired from the pulmonary function laboratory, although rare, have been reported from various countries” (Rasam, et al, 2015).

You should focus on that last part again, “…have been reported from various countries.” This is not a one-time case study. Multiple cases of disease transmission have been reported between patient and operator, and between patients, from multiple countries. So, it goes to reason, your client could conceivably become contaminated from viral matter on the PBT from the asymptomatic person who last provided a sample. Or three samples ago – meaning three others who recently used that PBT are also contaminated, including the operator.

Certainly, the counter argument is that the officer “disinfected” the PBT between breath tests. Keep in mind that these reported pulmonary function tests (the ones with documented cross-contamination) are performed:

• In clean, but more importantly – disinfected or sterilized clinical settings,
• Using medical personnel who have been
• Trained in epidemiology and infectious control,
• They have the ability to disinfect these medical-grade devices immediately,
• Using medical-grade disinfectants and sanitizers.

Contrast this situation with a police officer, at roadside, wiping down a PBT between breath tests, using cleaning items on-hand (as in little disposable towelettes), even if performed with the best of intentions. The decontamination and sterilization done in clinical settings still resulted in multiple documented cases of cross contamination, worldwide.

Decontamination and Cleaning of Hard-Surface Items, including Portable Breath Test Devices

The World Health Organization advises that coronaviruses are one of the easiest types of viruses to kill, as long as the appropriate disinfectant products are used according to the manufacturer’s directions. It is recommended that users clean high touch surfaces often, using either regular household cleaners or a solution containing diluted household bleach at a 0.1% sodium hypochlorite concentration. This is equivalent to just 1 teaspoon of household bleach per quart of fresh water.

This solution must be prepared fresh daily, and must, by necessity, be applied to the hard-surface item after each and every use. The surface must be sanitized with the disinfectant for at least one minute before being washed away by a clean and uncontaminated cloth. We do not know the measures taken by police agencies to ensure that PBTs are decontaminated properly between breath tests.

Even if frequent decontamination of the PBT is a policy of the police agency, the person providing the breath sample has no verification that this procedure has been properly performed, and all of the virus has been eradicated. Remember – the dosage of the micro-organism required for transmission of the coronavirus is measured in microns…

Again – Why did Intoximeter remove their disinfection instructions?

Also, keep in mind that the breath test operator can only clean the external surface of the PBT. The internal breath sampling ports cannot be adequately cleaned and disinfected in the field. The tubing and inlet ports are too small to allow access without specialized tools but are often found to be contaminated with saliva droplets from previous breath tests during annual maintenance.

Sort of like the aerosol pump on the perfume bottle… get the picture?

If the test subject were to inhale through the disposable mouthpiece, even momentarily to draw in enough breath to provide a suitable breath sample, they would inhale potentially contaminated residual matter from the PBT breath sampling assembly. You smelled the perfume, meaning you inhaled the perfume, into your body.

While one-way valves on the disposable mouthpieces would somewhat mitigate this potential area of contamination, the mouthpieces used on most handheld PBTs, as previously noted, use a flow through design, allowing the contamination to occur.

Internationally, health agencies currently advise that COVID-19 is a serious health threat, and the situation is evolving with new cases emerging daily. The risk of transmission and mortality will vary from community to community but given the increasing number of cases of both infection and loss of life, the risk to the world population is considered high. We have not seen epidemic precautions of this nature taken worldwide since the Influenza pandemic that lasted from January 1918 to April of 1920.

Argue if you will that the coronavirus risk has been overblown by the media and government response. I heard an epidemiologist interviewed early on in the crisis say, to the effect, that we will be successful at combating the virus if we look back on our response at a future point in time and think that we overreacted.

The consequences for under-reacting are too grave to consider. Remember the 1918 Influenza pandemic is estimated to have infected approximately one-third of the world’s population and killed perhaps as many as 50 million people – in four consecutive waves, with the second wave the deadliest.

Currently, the current risk of contamination of Covid-19 is considered elevated merely by going to a grocery store, to a family member’s home, or otherwise out in public, even as restrictions begin to relax. And with these relaxing restrictions, we are seeing an increased level of exposure, disease transmission and infection. Governments around the world have instituted physical distancing and isolation measures in response to the increased threat of virus transmission.

Police agencies have also identified breath testing as a risk factor in contracting COVID-19. Many have suspended roadside breath testing programs. Some have switched to taking blood samples or urinalysis under controlled settings back at the police station. In general, it is recognized that roadside breath alcohol testing places a risk to both the officer and test subject due to:

• The form and function of the equipment used,
• The lack of appropriate and available PPE that can be used during testing,
• The inability to confirm suitable decontamination of the breath testing device used,
• The close physical proximity of the operator to the test subject, and
• The overall nature of breath testing.

The only logical conclusion to draw is that persons receiving or providing breath samples for alcohol testing are at a substantially increased risk of potential contamination and transmission of the SARS-CoV-2 virus, which causes the subsequent infectious disease COVID-19. Couple that with the risk factors listed at the beginning of this article, and you have a recipe for disaster. 

Does this constitute a reasonable excuse to refuse a breath test? That is a legal issue for you to argue. The risk factor, scientifically, is both identifiable and measurable.

I’m going to ask you again – Did you smell the perfume?

For more information on the effects of COVID-19 on forensic alcohol investigations, including a video presentation, numerous supporting articles, and special Counterpoint subscription pricing for TCDLA members, go to Counterpoint-Journal.com/TCDLA. Enter the code TCDLA2019 on checkout and receive 25% off all past volumes, or an annual subscription.

References:

1. “Coronavirus Disease (COVID-19): Prevention and Risks”, Public Health, Government of Canada , found at https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html?topic=tilelink on September 24, 2020.
2. “Coronavirus: Police Scotland Reported to the HSE Over Breath Tests”, BBC World News, found at https://www.bbc.com/news/uk-scotland-52713404 on May 19, 2020.
3. Hierbert, T, Miles, J & Okeson, G C, “Contaminated Aerosol Recovery from Pulmonary Function Testing Equipment”. Am J. Respir Critical Care Med Vol 159. pp 610-612, 1999.
4. “How COVID-19 Spreads”, Centers for Disease Control and Prevention, found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html on September 24, 2020.
5. “Infection Control, Cleaning and Disinfecting, Intoximeters Handheld Breath Testing Instruments”, Intoximeters, Inc. March 2020.
6. “Q&A on COVID-19”, European Centre for Disease Prevention and Control, found at https://www.ecdc.europa.eu/en/covid-19/questions-answers on September 24, 2020.
7. “Q&A on Coronaviruses (COVID-19)”, World Health Organization, found at https://www.who.int/news-room/q-a-detail/q-a-coronaviruses on September 24, 2020.
8. “Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)” — United States, February 12–March 16, 2020, Centers for Disease Control and Prevention, found at https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm on September 24, 2020.
9. Kim, Jeong-Min et al. “Identification of Coronavirus Isolated from a Patient in Korea with COVID-19”. Osong Public Health and Research Perspectives, Vol. 11,1 (2020): 3-doi:10.24171/j.phrp.2020.11.1.02
10. Prabhu, M.B., Hurst, T.S., Cockcroft, D.W., Baule, C. and Semenoff, J., “Airflow Obstruction and Roadside Breath Alcohol Testing”, Chest 1991: Volume 100, pages 585-586.
11. Rasam, S. A., et al, “Infection Control in the Pulmonary Function Laboratory”, Lung India, 2015 Jul-Aug; 32 (4): 359-366.
12. Semenoff, J., “The Infectious Control Reference Guide”, Saskatoon Police Service, 1997.
13. Semenoff, J., “Infectious Disease Controls and Police Response Issues”, presentations to the Canadian Police Association and the Saskatchewan Federation of Police Officers, Fall, 1997, Regina, SK.

If you are like most of us, you send and receive dozens, if not hundreds, of e-mails every day, so this is a subject that is on everyone’s minds. Unfortunately, for most of us, the only thing we think about when it comes to e-mail is what to write and what someone else wrote. There are other issues to think about when e-mailing. One of the most important issue is security. If you do not think about it, you could end up like me – fighting to get out of the junk folder.

Since the beginning of time, or maybe the mid-‘90s, people have been sending unsolicited e-mails as advertisements and for other unscrupulous reasons. These messages are known as SPAM. Some of the e-mail messages are designed to scam you into buying inferior or non-existent products or trick you into providing them with sensitive data – a process called “phishing.”  

It would be easy to fix if all of these people would create a domain name and use that domain name in their e-mails; then we could block the spammers, phishers, and scammers, and everyone would be happy, except them. Instead, they use your domain name. Well, maybe not yours, but, apparently, they used mine.

 You may have received an e-mail that looked like it came from your own e-mail address. This is called “spoofing.” Eventually, if your e-mail address is spoofed enough, you could be blacklisted by larger information technology (IT) departments, including the IT department of the county government you deal with on a regular basis. You would not even know. You would be sitting in your office, watching your paralegal twiddling her thumbs, and wondering why nobody has responded to any of your e-mails, including the urgent messages about deals that need to be made. It happened to me, and it could happen to you.

I do not have all the answers, and I am not nearly the expert my mother thinks. I am simply an inquisitive guy trying to understand why things do and do not work. I am trying to explain things without all the big words the experts use.

I am lucky enough to have friends and family that work in all areas of the county government. When I realized that people were not responding to my e-mails, I called a few of them. It was discovered that my e-mail address had been spoofed and used by enough scammers that independent “spammer lists” had blacklisted me and the county’s mail server automatically sent all of my e-mails to the junk folder. 

While it may be a costly undertaking for you, you should consider utilizing a secure, third-party e-mail server. Microsoft offers subscriptions to their Exchange Server. Amazon offers a similar service, and some web hosting companies, such as GoDaddy, offer Microsoft Exchange for e-mail service, as well. Without getting too technical, these e-mail servers enter codes into every e-mail message that comes from you and it prevents anyone from being able to “spoof” you. 

In the end, I chose Microsoft for my office. The cost was minimal – approximately $12 per month to protect me and my staff. It is money well spent to ensure that my e-mail messages actually get to the person intended, whether that be a prosecutor, an expert witness, a client, or even a judge. Set up was easy and, much to my surprise, I was able to speak with a real, live person in the United States, who walked me through the process. They even called me back the next day to help finish setting up. 

It has taken a little bit of time and a little bit of money, but my name has been removed from the list of spammers and scammers. I can now get back to work representing my clients.  In the future, if I find myself wondering why my e-mails are being ignored, I will know it is not because my messages ended up in the junk file. If you ever find yourself in the same situation, it might be something you want to investigate.

On a Thursday morning, we logged into Zoom like it was any other day. For months, Zoom had been used, like in many other settings, to keep court operations running. There in the gallery view on our computer monitors were cameras facing the well of the court with counsel tables, the judge, and a spattering of other attorneys logging in for morning docket. But this was not just a regular docket. The day before, six people were selected to sit as a jury in a trial. Our trial.

I unmuted my microphone and pointed out to the judge — who had already overruled every objection I had made about the proceedings leading up to that moment — what I thought was a simple oversight: “Your Honor, I see they are setting up a camera facing the witness stand but I don’t see a camera facing the jury.” Her response, “I’m not putting a camera on the jury since we’re live-streaming this. I don’t want their faces shown in the live-stream.” In my mind, I thought, what difference would it make since the jurors were wearing masks? But I had already toed the line on being held in contempt and was not about to face the prospect of being jailed during the pandemic. I politely asked, “How will we be able to see the jury then, your Honor?” The judge replied, “You are welcome to come down here and be present in the courtroom, but I am not going to put a camera on the jury.”

And so began a jury trial where a defendant and we as his attorneys — who refused to put ourselves at risk of contracting a deadly virus for which there is no vaccine and no studies to show the long term effects — were faced with no other choice but to appear for trial by Zoom. And for the entire trial, we would be blind. Unable to see the jury that would be judging us and our client. The jury would be in the courtroom, along with the judge, the witnesses, and the prosecutors. Myself, my associate, Sierra Tabone, and our client would appear on television monitors in the courtroom. And so, began an abomination.

COVID-19 and OCA’s “Experiment”

Our client was charged with driving while intoxicated back in December of 2018. Delays in obtaining evidence from the prosecutors and then the State having to retest our client’s blood contributed to multiple delays, and the case was not scheduled for its first trial setting until January 2020. The case was not reached and ultimately rescheduled to April.

But by then, the COVID-19 pandemic had set in. Government officials had made declarations of disasters and declared states of emergencies. The judicial system followed suit with the Texas Supreme Court and Court of Criminal Appeals issuing Emergency Orders that grinded the judicial system to a halt. The wheels of justice, however, could not come to a complete stop for too long, and judges throughout the state scrambled to figure out how to get those wheels turning again.

One of the first solutions was to use Zoom or some other videoconferencing application. Although awkward at first, it turned out to be a workable stopgap. Courts resumed holding non-trial dockets where attorneys for the State and the defense would confer with the courts to determine case status and discuss other issues.

As for jury trials, however, those obviously could not resume. So, like for our client, many defendants had to wait for their day in court. All that would change at the end of June when the Supreme Court issued its Eighteenth Emergency Order Regarding COVID-19 State of Disaster. In that order, it laid out an ambitious plan to have the Office of Court Administration (“OCA”) coordinate with Regional Presiding Judges and local administrative judges to “assist trial courts in conducting a limited number of jury proceedings prior to September 1.”¹ These limited numbers of “test trials” had to

1. be at the request of the judge presiding over the case;
2. ensure adequate social distancing and other restrictions and precautions [were] taken to ensure the health and safety of court staff, parties, attorneys, jurors, and the public;
3. take all reasonable steps to protect the parties’ constitutional and statutory rights;
4. require the admonishment of petit jurors as appropriate to ensure that proper attention is given by each juror and that outside influence is removed; and
5. permit the OCA to observe the processes used during the proceeding in order for the OCA to prepare a report to submit to the Supreme Court and to develop best practices for other courts’ use.²

A number of judges around the State jumped at the opportunity to get their dockets moving again and requested to hold jury trials.³ OCA approved a total of 85 requests to hold jury trials and so began the “great experiment.”⁴

While several of the cases were ultimately resolved without the need for a trial, a total of twenty jury trials were held throughout the state.⁵ As required by the Supreme Court’s order, the OCA observed those proceedings, prepared and submitted its report to the Court, and made a number of recommendations for allowing courts to move forward with jury trials between October 1 and December 31.⁶

Surprisingly, not mentioned anywhere in the OCA’s report was an account of an alarming incident that occurred with two trial proceedings that took place in Brazos County.

On August 17, the Honorable Steve Smith, Presiding Judge of the 361st Judicial District Court of Brazos County, started a jury trial in a criminal case where the defendant was accused of burglary. At or about that same time, the Honorable Kyle Hawthorne, Presiding Judge of the 85th Judicial District Court of Brazos County, located across the hall from Judge Smith’s court, started a jury trial in a criminal case where the defendant was accused of continuous family violence assault. Both trials were on the OCA’s approved jury trial list and presumably followed the directives set out in the Supreme Court’s Eighteenth Emergency Order to limit the transmission of COVID-19 in these “test trials.”

While both trials apparently commenced with little difficulty, something went terribly wrong on August 18. As reported by a local television station and newspaper, Judge Hawthorne had to declare a mistrial after it was discovered that a COVID-19 positive inmate was accidentally transported to the courthouse along with the defendant in trial before him.⁷ That other inmate: the defendant in trial before Judge Smith.⁸ Judge Smith ultimately had to call for a two-week recess of the punishment phase in that trial.⁹

In the OCA’s report to the Supreme Court, this was all that was reflected regarding those two trials:

And even though the OCA’s report had a date-by-date account of significant events related to its “pilot program,” this incident was surprisingly omitted from their report.

The OCA nevertheless made its recommendations to resume in-person jury trials and, based on these recommendations, on September 18, the Supreme Court  issued its Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster allowing for in-person jury trials to commence following the recommendations set out by the OCA.¹⁰

The Dreaded E-Mail and the Decision to Withdraw

Because the Supreme Court’s Twenty-Sixth Emergency Order had not yet been released, our case, which had a trial setting on September 16, was rescheduled to November 11, 2020. We began anticipating and preparing for trial but awaited further instruction from the judge in our case, the Honorable Toria Finch, Presiding Judge for Harris County Criminal Court at Law No. 9, to determine if she was going to follow the Supreme Court’s directives regarding in-person jury trial proceedings as other judges in Harris County were beginning to do.

On October 21, we received an email from the judge informing us that she intended to start trial on November 11 and our case was number one on the list. The judge also informed us that the trials were to commence as scheduled following the court’s safety plan as well as the plan created by the Harris County Judiciary.

Myself and my associate reviewed the court’s safety plan and we both had concerns. First, the plan specified that witnesses would not be required to wear masks and would be placed behind a Plexiglass barrier which we knew not be effective at containing the spread of the virus.¹¹ We were also concerned that the plan allowed for the judge to ask any person before the court to remove their masks if needed to make a proper record. We were also concerned that, if the trial took more than one day, the plan did not account for what trial participants, including jurors, would be doing when they were not in the courtroom and returned home where they were not subject to the protections in the safety plan.

Right about that time, our fears were validated when we learned about another incident in Beaumont. As reported by a Beaumont news station, in Jefferson County’s first jury trial since the COVID-19 pandemic began, a juror in a criminal case tested positive for COVID-19 requiring the judge in that case to declare a mistrial.¹²

Approximately one week later, on October 28, it was reported that health care officials and government leaders were “pleading with Houstonians: Act now to prevent, or at least minimize, a third wave of infections across Greater Houston” that had developed over the previous weeks.¹³

By that point, we felt we had to move for a continuance. Aside from our personal concerns for our health and safety, we were concerned how proceeding to trial would infringe upon our client’s constitutional rights at trial. Hence, on October 29, we filed our motion for continuance modeled largely on the TCDLA COVID-19 Task Force’s motion for continuance.

Prior to presenting it to the judge, however, we began to prepare ourselves for the judge to deny the motion. That meant we had to begin to consider our obligations to our client and whether we could still effectively and, more importantly, ethically represent him if we were forced to trial on November 11.

 Rule 1.06(b) of the Texas Disciplinary Rules of Professional Conduct states, “a lawyer shall not represent a person if the representation of that person . . . reasonably appears to be or become adversely limited by . . . the lawyer’s . . . own interests.”¹⁴ As the comments to the rule state, “Loyalty is an essential element in the lawyer’s relationship to a client.”¹⁵ And, when “an impermissible conflict of interest . . . arises after representation has been undertaken, the lawyer must take effective action to eliminate the conflict, including withdrawal if necessary to rectify the situation.”¹⁶

What myself and my associate concluded after much consideration was that we had to put our own interests in our personal health and safety above that of our client and his case and potentially withdraw due to the conflict of interest.

We held out hope, however, and made our case to the judge at a pretrial conference on November 4, which ironically was held by Zoom. After presenting our arguments, as anticipated, the judge denied the motion and indicated to the parties that we were to appear at the NRG Arena for jury selection on November 11. We then expressed to her our ethical concerns and the possibility of withdrawal. Despite not having made a formal motion, the judge quickly replied that she would be inclined to deny that motion.¹⁷ In terms of reasonable alternatives to allay our fears, we asked if the judge would consider requiring all trial participants to submit to diagnostic tests prior to appearing for the trial or even possibly holding the trial in an outdoor venue. Again, denied.

After several difficult discussions with our client, we informed him that we had to move to withdraw and did so on Tuesday, November 10. Expecting the judge to deny that motion, however, I had spent the entire weekend before preparing a petition for writ of mandamus. While I had seen other attempts at mandamus fail based on a denial of a motion for continuance, I felt we had a better shot because ours was based on the failure of the judge to let us withdraw. Caselaw clearly established that mandamus relief was appropriate where a trial court refused to allow an attorney burdened by an actual conflict of interest to withdraw.¹⁸

The petition was filed and assigned to the First District Court of Appeals in Houston that Tuesday afternoon at 2:51 p.m. along with a motion to order a temporary stay of the proceedings in the county criminal court at law. At 4:20 p.m., we received an email from the Court of Appeals notifying us that our motion for the temporary stay was denied.

We were overwhelmed with a feeling of defeat. Again, we had seen other cases where parties moved for and were denied a continuance, including a case involving a tax dispute in Scurry County where the lead counsel for one of the parties sought a continuance due to his age and underlying health conditions, and because his physician had directed him to self-quarantine for at least twelve weeks. He sought mandamus relief to the Eastland Court of Appeals and the Texas Supreme Court, both of which denied his request without opinions.¹⁹ We had heard of other attorneys throughout the state and in Harris County whose motions for continuance and petitions for mandamus relief were also summarily denied. The evidence was there to support a strong inference that although there was no explicit directive, there was tacit direction from the top down to deny any motions and overrule any objections that would delay the proceedings.

It was then that we realized we were no longer operating by the same system of rules and protections we have. Although the Texas Supreme Court had stated, “The Constitution is not suspended when the government declares a state of disaster,” the actions of every court in Texas demonstrated the exact opposite.²⁰ We knew we had to shift the paradigm and adapt to our situation.

We could not just show up and participate in person as it would have been counter to everything we had represented to both the trial court and appeals court. We were not going to participate in the trial.

The judge had given us an option: we could appear by Zoom. Instinctively, it sounded like a good solution because it resolved what, in our minds, was our primary concern: our personal health and safety. But almost instantaneously, we were equally concerned with the multiple constitutional violations that it would involve.

First and foremost, it would deprive our client of his constitutional right to be physically present at his trial.²¹ Although the judge had said it was our choice to appear by Zoom, it was really a “Hobson’s choice” because the alternative was that our client would be deprived both of his right to conflict-free representation and effective assistance of counsel.²² There was also the fact that our client would be giving up his constitutional right to physically face those who testify against him.²³ Effective assistance of counsel would also be compromised simply because we would not be in the courtroom to witness everything that was taking place. The list just seemed to go on and on.

Because we were faced with a true “Hobson’s choice,” we decided to move forward as intended and not be physically present at trial but instead appear by Zoom while making all the necessary objections to preserve the error for appeal.

Voir Dire and Preparing the Jury to See Us on Zoom

The morning of November 11, we had to appear at NRG Arena — a convention hall located next to NRG Stadium and the old Astrodome site that had been converted to a massive jury assembly hall — because there was no indication that the voir dire rooms were equipped for Zoom. That was indeed the case when we arrived.  While the county had not provided that sort of technology, we heard the sound of cash registers ringing as we walked in and saw large numbers of staff to assist jurors and parties, as well as high-end audio and video equipment. This included individual voice-activated microphones and Sony headsets at each “juror station,” a seat for each veniremember spaced six feet apart from the others. For us, we too would wear headsets to be able to listen to everyone speaking, be it the judge, the prosecutors, or the veniremembers responding. Hearing would have been otherwise been impossible given the cavernous space that we occupied.

Our concerns about our health and safety were not as great as they were for the actual trial proceedings that would take place the following day at the Harris County Criminal Justice Center in the courtroom for County Criminal Court at Law No. 9. Veniremembers wore not only face masks, but county-provided plastic face shields. Staff members came through before and after voir dire spraying down equipment with what appeared to be disinfectant. Sanitizer sessions were spread out throughout the venue.

As expected, Judge Finch was not there but instead, like other courts using NRG, used a visiting judge to conduct the voir dire proceedings.

As the veniremembers filed into the room, we realized the first problem. While we had questionnaires for each, we had no idea what they looked like. Wearing the masks was bad enough, but with the face shields which just reflected the ceiling lights each time the veniremember moved, there was no way we could see each individual veniremember except for maybe on the first two rows; even then, we could only barely see their eyes.

The visiting judge started the voir dire and surprisingly made little mention of COVID-19 and the abnormal environment we were in. He gave a standard voir dire covering general principles of law applicable to a criminal case. The prosecutor likewise made little mention of COVID-19 and went through the standard State DWI voir dire (e.g. review the elements, discuss potential grounds for cause).

When it came time for me to start, I knew I had a tough road ahead. Ordinarily, I use a power point to talk about the burden of proof and other issues related to the issues in my case. I threw it all out. Again, I knew I had to shift the paradigm and had to prepare the veniremembers for what lied ahead.

The DWI was important but, like I told the jurors, there was a bigger elephant in the room, and it was a really big elephant given the size of the hall at NRG arena we were in. That elephant: COVID-19. I talked to the jurors about their opinions about the pandemic, setting it up as a scaled question where a “4” was a person who was hypervigilant and hardly ever left their home, while a “1” was a person who thought the virus was a hoax and was appalled about wearing masks. This gave us the opportunity to get an idea of who would be receptive to our position. And then we told them ours. I explained how I was somewhere between a 3 and 4, my brother-in-law being an epidemiologist and having lost friends to COVID-19; my associate was also between a 3 and 4 as her mom was immunocompromised having just beat breast cancer.

I then explained to them how things have been working in the criminal justice system since the COVID-19 pandemic began, how judges were panicked about the wheels of justice coming to a halt, and how they were pushing things to get moving again.

I then talked to them about Zoom and other videoconferencing apps to see how many of them were familiar with it and used it regularly. I then explained how we in the criminal justice system had been using it on a daily basis for day to day court appearances and to keep the “wheels turning.”

Then, I turned to our present dilemma. With the presiding judge not being there, it was easy for me to scapegoat her. I told the jurors that we had pleaded with her to push this off until after the pandemic settled and how we did not need to put ourselves or jurors at risk. I told them, as much as they did not want to be there, we wanted to be there even less. I felt this would make them less likely to punish us for their plight.

But then I explained that the judge had given us the option of appearing by Zoom. We told the panel that we wanted everyone to appear by Zoom – the prosecutors, the witnesses, and, most importantly, them. But logistically, it was not going to work so I then reached the climax of the voir dire: we could not pass up appearing by Zoom — that myself, my associate, and our client did not want to put our health and safety at risk being in the courtroom. At that point, we asked who would be offended by that and, as grounds for cause, who could not treat us impartially even though, while they would be in the courtroom, we would only be on television monitors.

By then, having had an open, honest discussion about COVID-19, the jurors were willing to open up. Several said they were indeed offended and would not treat us the same; those jurors would ultimately be struck for cause by the visiting judge. Fortunately, there was a good number of other veniremembers who gave us their commitment that they would hold the State to their burden and not treat us differently. At the end, we got six good jurors and one alternate. Before I concluded, I told them, it was going to be the last time we saw each other in person. It was a surreal moment.

“Uh, We Can’t See the Jury”

The following day, while we were expecting to not see them in person, we were not expecting to not see them at all. But that is exactly what happened.

Having spent the afternoon before, after voir dire talking with the prosecutors about exhibits (which we agreed to preadmit) and witnesses, things started off smoothly putting agreed motions in limine on the record and renewing my objections to the proceedings. But then, when I pointed out to the judge that we could not see the jury — and she responded by saying she was not putting a camera on the jury — we knew we were in for nothing short of a kangaroo court.

I was set up on my computer in my office without a mask. My associate was similarly situated in her office. Our client was set up on his laptop at his office. We would use text messaging to communicate with each other (which had its limits).

We had a camera view of the well of the court with counsel tables where we could see the prosecutors. The judge had arranged to have a laptop set up in front of the witness stand which allowed us to see the witness and the witness to see me during questioning. The judge’s camera was helpful, not for being able to see her, but because it allowed us to see one of the monitors in the courtroom set up behind and to the side of her bench.

This would be a critical component of this entire process because it allowed us to see what the jurors were seeing in the courtroom on the “Zoom screen.” Even though I would be set up with gallery view or have whoever was speaking “pinned” on my monitor so I could watch them, the judge controlled what was published on the monitor in the courtroom. Instead of having a gallery view (where each party on the Zoom is shown), it only showed whoever was speaking. Since that was almost always me, it was almost always my face on the screen. The only time the jurors saw our client was when he was arraigned and pleaded “not guilty” and then, at the end of the trial when, at the beginning of my closing, I asked him to say “hello” so that his voice would switch the voice-activated camera to him and show him on the monitor. I wanted the jurors to see his face one last time to remind them that they held his fate in their hands. Otherwise, with his face not being shown, we did not have to worry about an expression, smirk, or laugh being heard or seen by the jury.

Of course, we were not going to have the same benefit. When I gave my opening statement, I was talking to a computer monitor that had my face on it. I could not see the jury. It was like practicing my opening in front of mirror except I could hear my voice through the computer speakers as well. I also had my notes in a separate window below the Zoom window on my computer monitor as if I had a teleprompter I could read off or look at to remind me what I wanted to say to the camera.

When the prosecutors called their first and only witness,²⁴ surprisingly, he had a mask on. This was contrary to what the judge’s trial safety plan had provided. Nevertheless, we were able to watch him in a separate Zoom window. We turned off our cameras (except our client; the judge wanted to make sure he was watching) and muted our microphones so that I would not be shown on the monitor in the courtroom. This was beneficial because I could take notes, look up things in exhibits, exchange text messages, even do legal research on my second computer monitor without the jurors seeing me fidgeting around or even hearing what I was saying as I was talking with my associate in her office down the hall.

When it came time for cross-examination of the officer, I knew I was in for a different experience. Not being there, not being able to see the jury and read their reactions, and not being able to physically get up in his face put me at a distinct advantage. But the Zoom setup did something beneficial. Even though I was not physically in his face, the laptop was set up directly in front of the witness stand so I was “virtually” in his face for the entire cross. Whereas officers are typically trained to look at the jurors when responding, while this officer did it at first, after several questions, he was locked on my on the screen.

As for the jurors, although I could not see what they were doing, I could see what they were looking at on the monitor in the courtroom: me.

Every time I asked the officer a question, I could watch my demeanor, expressions, and delivery while also hearing my question through my computer speakers. This provided me with instant feedback and helped make me self-aware of what I was doing unlike any of the over 100 trials I had participated in prior to this.

As much as I hated not being able to see the jury, this atrocity was allowing me to focus on nothing else but what they were seeing.

Handling evidence also was much better. Instead of fumbling around with courtroom equipment or getting up to approach the witness stand, I simply had to hit the “Share Screen” button and, since I had all my exhibits set up in separate windows, I just selected what I needed to publish and then, boom, it was on that monitor in the courtroom for the jurors to see. I used Adobe Acrobat Pro to highlight items on exhibits that I needed to highlight. I could play a video on my computer, stop it, stop the screen share so that I was back on the monitor in the courtroom, and ask a question of the officer. Then, if I needed to jump back the video, a couple of clicks, and the jurors were back to watching the video on the monitor.

At the end of my cross, I had a satisfied feeling because I asked every question I wanted to ask and made every point that I wanted to make. But still, I had no way of knowing what the jury was thinking. I had no idea if they had understood what I was asking or where I was going. I had no idea if they were rolling their eyes or falling asleep.

It would be the same experience when I gave my closing argument. I had a couple PowerPoint slides that I opened with after opening with my client’s face being shown on the monitor. But then, it was just me, speaking to the jury but not seeing the jury.

After the jury went back to the jury room to begin deliberations, the judge stepped off the bench and it was just the prosecutors on Zoom. I asked them, “What were the jurors doing during the closing arguments?” Again, I had no idea how they responded.

While the jury deliberated, I started working on a motion to dismiss our petition for writ of mandamus to file in the court of appeals, leaving a blank where I stated what the jury’s decision was. Although I expected it would be summarily denied like all the others, I did not want to take the chance that it would create bad precedent.

Twenty minutes later, the jury came back with a verdict. Not Guilty.

It was vindication, not just for our client, but for everything we went through.

Afterthoughts about Trial by Zoom

Despite the outcome, everything we went through was an abomination. From not being able to exercise our conscience to comply with our ethical obligations, to the multiple violations of our client’s constitutional rights, to the mere fact that we were gathering in a public place when health officials were warning people in the community of a third spike in infections and more deaths made me ashamed of our entire system. Instead of working to seek justice in compliance with the law and respectful of the rights and safety of all involved, we were an unwilling participant in an authoritarian regime. A judicial body focused on one thing and one thing only: keeping the wheels of justices turning.

In my voir dire, I explained it this way. The judicial system is like a car. The judge is the driver. The parties are the two kids in the backseat fighting. The jurors are the unsuspecting group of people standing alongside the road who get pulled into the front passenger seat to listen and settle the fight. But the judge is driving the car. They have to follow the rules of the road, but they get to decide how fast or slow to go and when and where to go. However, when the COVID-19 pandemic struck, those were nails in the tires. While we pulled over to the side of the road to check it out, the judges decided to get back in the car and keep driving on the flattened tires. Why? Because they had to get where they needed to go. No one knows entirely where that was, but it did not matter. The wheels of justice had to keep turning. It did not matter if it was dangerous to others on the road. It did not matter if was dangerous to the passengers in the car. We are riding down a road with flattened tires.

Like we told the veniremembers, we begged the judge to pull over to the side of the road and wait for a tow truck to come tow us to a safe place where we can repair the tires and then get back on the road safely. The judge in our case, like many judges all over the state, however, said “No. We’re going to keep driving.”

This article is not meant to be interpreted as an endorsement of Zoom trials nor should it be. We, as attorneys, must continue to fight this effort to use Zoom on every level. All of the concerns set out by Jennifer Lapinski, Robert Hirschorn, and Lisa Blue in their article, “Zoom Trials: The Idea Exceeds the Technology” in the October Issue of Voice for the Defense were absolutely spot on and witnessed by us in our exercise in futility. We provide this account of our experience to help attorneys who, like us, find themselves with no other choice but to participate by Zoom. Hopefully, no one will ever have to go through what we went through. Hopefully, this pandemic will end and trials as we have always known them and experienced them will return to normal.

There is one positive takeaway from our experience, however. Using Zoom helped me be more self-aware of a lot of things that I normally do not get to see or experience in trial. For one, I got to see what I looked like giving opening and closing arguments. I was more aware of my facial expressions and seeing what the jury was seeing. A lot of people will practice their arguments in front of mirror. I would suggest you practice in front of a Zoom camera. Although hard to describe, it feels more effective when you can see yourself on a monitor as opposed to an identical size, mirror image.

With these things in mind, for anyone with an upcoming jury trial, I strongly recommend holding a mock trial by Zoom to help you prepare. I have done regular mock trials before and they are indeed helpful. But getting mock jurors together is a hassle and seeing them sitting there in person whether in a conference room or ball room at a hotel makes the process too “unreal.” Instead of trying to recreate the trial environment, use the Zoom environment to give you what it does best: instant feedback. Instead of looking at the jurors, you can focus on yourself, and when doing direct or cross examination, focus on the witness alone. Then, after the exercise, the jurors can provide you the feedback that you are looking for both on your case and your presentation of your case. You can also watch the recording of the Zoom session to see yourself and fix what you like and do not like.

Zoom undoubtedly has changed the way we practice law. There is a real benefit to being able to appear at non-trial court settings virtually instead of having to drive miles to a courthouse, find parking, go through metal detectors, and spending wasted time waiting to talk to a judge. We should embrace the technology for those aspects of our practice. But the jury trial is sacred. As Thomas Jefferson stated, “I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.”

Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm, and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list.  Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D). Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)? PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual. 45 C.F.R. §160.103. This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.” Id. So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As attorneys, there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMPA. For example, Mental Health records we receive for a mitigation packet for a grand jury presentation, TDCJ records that include infirmary trips, SAFPF records that include counseling, UA results for a pre-trial check in, or discovery with EMT or blood draw records, the potentials are pretty limitless. Remember, too, that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.   

What does it mean then that we are covered entities maintaining confidentiality of PHI? Obviously, secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release, and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release. A subpoena signed by the Judge, a Grand Jury subpoena, or Administrative Subpoena authorizes a covered entity to re-disclose PHI in their possession. That is not the most likely scenario for when we will re-disclose PHI. Usually those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf  Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: Get it in writing.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. Some programs – SIGNiX, eSignLive by Vasco, and Adobe Sign – have been found to comply with HIPAA requirements of verification. 

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA, and through it, the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004. HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306. It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption. Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data. While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place. There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas. 

Passwords. Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPPA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember. So instead of using a complex sequence of numbers, letters, and symbols use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”

Third Party Storage. Are you using another company to maintain your files? If so, you’re going to need a business associates agreement. 45 CFR §164.308(b). A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself. 

E-mail. Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: (1) end to end encryption; (2) a business associates agreement with your email provider; and (3) make sure to configure your e-mail correctly; (4)  have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates, too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training.  Tex. Health &Safety Code 181.101(a) & (d). 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA. The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, The Department of Health and Human Services published a final rule increasing the civil penalties for 2020. For violations the covered entity did not know about fines can be between $119 and $59,522 per violation. If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats. In May 2017, HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested. Concentra Health Services in Addison, TX was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So, what do we take away from this? Remember that as we implement new technology and new ways of doing business into our practices, we ought to be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

I come into the office maybe twice a month. It’s so strange that it is something I can quantify in months. When I left in March, I thought that we might be gone for two weeks. I left yogurt in my secret, fire marshal-unapproved under-desk office fridge – that’s how confident I was I’d be back relatively soon.  The government machine that grinds men’s bones doesn’t usually trust work-from-home efforts, in my humble experience.

I ran into a coworker at the checkout line in the grocery store; both of us looking sheepishly down at our groaning shopping carts. He grinned, “This is wild, isn’t it? I mean, it’s terrible, but it’s kind of exciting.” It was exciting, navigating through the apocalyptic empty displays, outsmarting the other shoppers: no rice in the rice section, but if you looked in international foods, on the very bottom shelf, 10 lbs of basmati for a bargain price; no toilet paper, but plenty of baby wipes; judging that others are buying out all the raw flour but none of the cold medicine. A sense of mild superiority, of hunting and gathering to survive, of feathering one’s nest.

But now, here we are, some immeasurable amount of time later with a reliable supply chain, and I’m sitting on my back patio writing this instead of trying to figure out how to dim the ubiquitous florescent lights in my office enough to stop giving me a headache but not too much that I have to strain my eyes to see (oh, the decrepitude of advancing years!). I have abandoned my stuffy courtroom wear for the schadenfreude of “athleisure.” I revel in the solitude my secret loner soul has craved for all these years in tall buildings full of people. And yet…

Public Defenders’ offices, including my own, are going through sea-changes right now. At least, it feels that way to me from the inside. There’s not a lot of records kept that I could access, not a lot of numbers yet. But recent, rapid increases in funding for PDO’s across Texas are seemingly making for strange bedfellows with pandemic protocols. As my office stretches to find attorneys to fill new positions, young attorneys with little experience are often coming straight from nascent private practices into felony dockets.  Outside of Texas, this is pretty common, but within Texas, PDO jobs have historically been competitive and awarded to more experienced attorneys who don’t need as much supervision. This has created a gaping chasm in training and management of new lawyers, which is significantly worsened by COVID.

Private practice trial attorneys are often forced into bravado. Obtaining paying clients requires flash and confidence, which, at first, often comes in the form of over-confidence. I have these cringe-y memories of myself as a young attorney desperately trying to act like I knew what I was doing. I shudder when I realize that some people believed me. If it weren’t for the delicate, ego-sparing assistance of a few kind and brilliant mentors, I would have made some truly horrible mistakes in my brief time as a private lawyer. Moving into the larger and less-lonely world of public defender offices working shoulder-to-shoulder with much more experienced attorneys changed the way I do everything.

I see the same kind of bluster and ego that I had in a lot of the new attorneys my office has hired, but in the absence of gentle mentoring and accessible peer attorneys, in the weird vacuum of Zoom court, I worry that they are left teaching themselves how to do this work, which is unfair to both them and their clients. Stopping by someone’s office to chat about a case will always be less formal and more congenial than having to pick up the phone and make a call to solicit advice. COVID has eliminated that possibility.

PDO’s breed a type of “no-snitching” culture where formal complaints or observations to superiors about the poor conduct or performance of other lawyers in the office is taboo. Compounding this is that middle-management staff are often ill-equipped to handle attorney discipline or training since they are largely promoted because of their tenure with the office and successes at trial. While these are admirable skills to warrant promotion, they are not skills that translate into management or mentorship abilities, and many great trial attorneys are poor supervisors who lack the ability to delegate authority. This is coupled with the difficulty inherent in managing people who are drawn to criminal defense practice, a notoriously anti-authoritarian and prideful group if ever there was one.

Related to the increases in budgets are increases in the number of cases appointed to PDO’s. As most criminal defense attorneys are all too aware, prosecutors seem unmotivated to move cases or even answer their phones in the midst of the pandemic, even when defendants are sitting in jail exposed to the virus or have languished on bond for years. Since there has been no risk of trial for several months, individual caseloads seem to have grown, apparently a result of the idea that if an attorney is not going to go to trial, they can handle more cases overall, which is true in the short-term. As trials start to resume, trial attorneys are finding themselves with heavy dockets of old cases on top of an expectation that they will continue to intake a higher number of new cases.

I don’t mean to be all criticism and darkness. I am also sweetness and light. There are good things, too. Forcing courts and old-school attorneys to adapt to technological advances has been largely beneficial. Off-docket resets and minimized appearances are definitely time-savers and prevent clients from having to cough up money for public transport or parking, stand in ridiculous lines, and miss work to go to court for nothing to happen.  It feels like a blessing not to have to sit in the gallery for an hour on the day you (of course) forgot to charge your phone, waiting for a late judge to come toddling in from a leisurely brunch to start his docket.  I think I fume a lot less.

Personally, I like the option of being able to work from home on days that I can’t have any distractions- when I don’t want to be rude to the coworkers dropping by to chat but I really need to get this thing done now so please stop talking about your freaking cat’s hysterectomy. And even though my commute isn’t terribly long, it’s amazing what a timesaver it is to avoid it and avoid the serpentine parking situation of the courthouse complex.

That said, I miss the camaraderie of my old office. I miss the collaboration and the chatter and the support, and I’ll admit, I even miss the drama. It was nice to know that in a contested hearing, half my office might show up in the courtroom to show support. It loses something on video conference.  I can’t imagine things returning to the way they were before all this. The days of standing next to a client during a plea with my hand on the back of his jail garb are gone. The idea of several colleagues ordering a pizza together, picking up pieces with our hands from the same box, eating together, laughing and spewing germs all over the conference room seems unthinkable now. The intimacy of having someone in my office sans mask chatting with the door closed feels almost indecent.

I believe in the model of the Public Defender’s Office with all my heart, life, and career. There is not a job I would rather do. I know that what I am witnessing is something our country is (hopefully) going through in a larger sense, too: the painful birth of a more progressive movement at a critical and bizarre time in history. I endeavor to be proud to say I was here now, was part of this hard thing and pushed through it into something better. I hope everyone in our office, at the end of their career, will be able to say that.