Law in the Time of Coronavirus

This is the first installment in a planned series of personal stories from TCDLA members on how the coronavirus has affected their daily lives.

Editor’s note: We are all in this pandemic together as humans and criminal defense lawyers, but we each have our own experiences both personally and professionally. It’s clear this pandemic isn’t going anywhere anytime soon, and we are all continuing to adapt to a new normal. Thank you to some of our members and Judge Birmingham for sharing your own experiences. Please continue to share with us.

Juan Aguirre
Houston

I miss “normal” life. I miss going to work at the courthouse and seeing my friends and colleagues. I miss interacting with them on a daily basis. The Criminal Justice Center (CJC) has long been ill-equipped to handle the large daily dockets of bond and jail defendants—there is no way to operate a “normal” docket given the Centers for Disease Control’s social distancing regulations. On average, there are 70-80 bond cases and 15-20 jail cases every day for each of the 16 misdemeanor courts; and 40-50 bond cases and 15-20 jail cases every day for each of the 22 felony courts. Bail reform and compassionate judges and prosecutors have helped to relieve some of the jail population, but the tight living conditions and poor hygiene of jail has made it a hotbed for the coronavirus to spread.

They have not released new numbers in over a week, but at last count, almost 800 inmates and almost 300 jail staff had tested positive for the coronavirus. I am working as indigent counsel for one of the misdemeanor courts and take felony appointed cases as well. In misdemeanor court, most of the detained are because they have some kind of hold, whether it’s a felony, parole, immigration, or some other order.

I like to prepare in advance of having to physically go to the CJC—I will email or call the prosecutor and court and asked to be attached to a case so that I can look at the charge, allegations, bond, hold, available discovery, and see what needs to be addressed. A good number of judges will address this remotely via Zoom, emails, or phone calls. I will communicate with my clients via mail, phone, Zoom or secures. But sometimes I have to go down to the courthouse, so I mask up, glove up, take sanitizer, disinfectant wipes, and Lysol.

I don’t know when jury trials will resume because I really don’t know how many people will show up if sent a jury summons, knowing they will probably spend hours next to a number of strangers. So many people dodge jury service under normal conditions. This adds a huge wild card into the mix.

I miss going to mass with my family and friends. I know that churches have opened up with limited capacity; however, I don’t feel safe being around crowds of people. Some people may, but we don’t—just yet. Our family last went to mass on March 14, 2020, but we have participated in virtual mass every Sunday, some daily masses, even a number of Pope Francis masses from the Vatican. We have continued online contributions to our church. We also pray the Rosary every day. I have even started to read a book on the history of the apostles. I pray daily for good health and protection from the coronavirus for our family, friends, colleagues, first responders, and the inmates in jail.

I miss visiting with the in-laws. My wife’s family is big on getting together to celebrate birthdays, holidays, and just any regular occasion. My mother-in-law often cooks for all—she usually says next time someone else can cook, but she mostly wants to do the cooking. My mother-in-law quit her job and has helped to look after my son Mateo since the day he was born. She absolutely adores him and I know he adores her too. We have seen them three times since mid-March—in their backyard, keeping our distance. I know she wants to hug her only daughter and her grandson.

I miss going out to eat. My wife, Ivonne, and I both work long days, so we often pick up something or go eat at a restaurant. But we have saved a lot and have had a lot of homecooked meals and sit down to eat at the dinner table. Before, it was grabbing something on the way out the door in the morning or while watching TV in the evening. Now, we know what’s in our meals and even Mateo has taken on some cooking and baking.

I miss going to the movies. But I don’t miss paying high prices for tickets, snacks, and drinks. Now some of the new releases are being streamed online. Most are $19.99 or cheaper; and the popcorn, snacks, and drinks are cheaper at home. Plus, you get to pause the movie when you get up to go get more snacks or go to restroom.

I miss traveling. Those who know the Aguirres, even from just Facebook, know that we love to travel. If there was a cheap flight somewhere, we were right on that fare. Often people would say to me, “Can you take me with you? I’ll fit in your luggage!” or “Does Mateo need a nanny for this trip?” On average, we travelled five weeks per year. We have been blessed to have seen 21 of the 30 MLB stadiums; 34 of the 50 states; many places in Mexico; Cuba; and last year we were able to spend three weeks in Spain, Portugal, France, and England.

This March we were supposed to return to Rome with our son; but Italy was a hotbed for coronavirus. Right now, we are scheduled to go in August, but I really don’t see that happening. When we cancelled Rome, we booked Puerto Rico, but then the pandemic was declared and we cancelled that trip—at least United will keep our credit for future travel. We did take a brief trip to the Gulf Coast last week, but that was only for a few hours and we stayed away from people. Right now, I can’t see us getting on a plane with so many people, not knowing our exposure.

I miss going to Astros games with my family and friends. This year, we even splurged on getting season tickets, but coronavirus had other plans. However, I get to keep up with my friends via texts, phone calls, and Facebook memories. Plus, saving on not buying beer, food, and souvenirs at Minute Maid Park is an extra incentive. Sounds like we need to have a watch party with some of the Astros games that are available. Beer and snacks are cheaper at home too.

I see people out and about in normal routines, some with masks, some without. Some socially distance, others crowd together. As for me and my family, we will continue to work from home as much as we can; cook our meals at home; order curbside groceries; some takeout; “attend” mass online; pray the Rosary daily; watch movies online; and pray that doctors and scientists develop a vaccine/cure/treatment for the coronavirus. We will continue to wear masks and gloves in public and sanitize often.

Matthew Allen
San Antonio

I was content working endless hours each week to defend our clients and to uphold the Constitution. Looking at my calendar and seeing a different trial case every few days was the new normal. Running around the courthouse in the mornings, sometimes looking like I had no head, was my exercise routine. I heard about COVID-19 but wasn’t too concerned for my health or my business.

Then things got a little worse and I became obsessed with reading about the disease. I became part of the hysteria, wondering how 18 rolls of toilet paper was going to last us. How much toilet paper do we use? Why is everyone buying it? Do I need to buy more? I was still going into work and then my son’s daycare shut down. Suddenly I was “working” from home with a three-year-old coworker. I missed work and started worrying about where money would come from. My wife became the new breadwinner, which she was quick to point out (jokingly and lovingly, of course). I became worried about money, the health and well-being of our son (is watching Frozen six times a day bad for kids?), and we had recently found out that my wife was pregnant! My sleepless nights worrying about cases turned into sleepless nights for other reasons.

But then I thought back to those crazy days of working all day and how I wished I had more time to do other things. I had to take advantage of this free time that I may never get again: We started exercising as a family and found out my son is more in shape than me; we started cooking dinner together again; and we were spending more quality time together as a family. We were playing Hot Wheels together and Zingo (like Bingo but with objects). My dad would come over a few times a week to play catch in the backyard. My wife, my dad, and I had time to teach Max how to play baseball and run the bases. I was getting to do all those things that were being neglected the past few months or even years.

As things seem to start to get back to normal and these stressors turn back into our old stressors, I hope that we remember some of these new routines and incorporate them in our daily lives. I know that these times have been trying for many people, financially and emotionally, and I do not mean to say that I hope things stay the same. Many people have lost their lives and there is no greater tragedy. I only have my experience to speak from, and I know others have different thoughts. I know our clients, especially those incarcerated, have struggled and continue to struggle. I am saddened, yet inspired, by the persistence I see from defense attorneys. Even in a difficult situation, they have continued to fight for their clients and what is right. My dream is not for COVID-19 to continue to threaten lives and livelihoods or to stay at home for the rest of my life.

My dream is that we find a vaccine for COVID-19, the murder hornets go away, and everyone gets back to doing what they love to do. I know this dream probably isn’t a reality, but I’m a criminal defense attorney—we dream big and do everything we can to make it a reality. I hope all of you, your families, your friends, and your clients are safe during this trying time.

Hon. Brandon Birmingham
Dallas

The rules in place to help end the COVID-19 pandemic have had profound impacts on our lives. We’ve learned new phrases like “shelter-in-place” and “social distancing.” Businesses are closed, causing many to lose their jobs. Restaurants are fighting for survival selling take-out, and retail shops are drying up. While the extent of the exact damage is nearly impossible to predict, we are surrounded by constant reminders that our economy is in significant distress. 

It’s not just the necessities, either. There are the life experiences we’ll miss. We had to cancel my son’s 10th birthday party with his friends. High school seniors won’t be making lifelong memories at graduation or prom. If you’re like me, Sunday family dinners are now meals we share on FaceTime. 

I’ll say something now I never thought I’d say: Professional sports have been canceled, too. All of them. Looks like we’ll all miss seeing Luka lead the Mavs to the first of at least a dozen NBA titles.

In the meantime, we are taking some significant steps toward modernizing the aging infrastructure of the criminal justice system in Dallas County. You deserve to know what’s happening in your courthouses, so I write today to bring you up to speed on some of the changes we are working on in Dallas County and the legacy they will leave.

Hearings like plea bargains and bond reviews must now be accomplished remotely so that all necessary parties––the prosecutor, the defense, the judge, the court reporter, the clerk, and the citizen accused––can be present, be heard, and be safe. The solution? Video conferencing. Courts are using video platforms like Microsoft Teams or Zoom, and all parties are calling in. Incarcerated individuals are brought into the calls in one of two ways: through computers and cameras set up in certain areas within the jail or in some of the empty courtrooms. Courtrooms today consist of home offices, garages, kitchens, and dining room tables. We are also using Adobe Sign to validate and authenticate virtual signatures.

Our Constitution demands that proceedings in courtrooms like mine be accessible to the public. The problem is that our courthouse is not open. The solution? Programs like Teams and Zoom broadcast the proceedings on YouTube for anybody to view. You’ll find the YouTube channels for all courts at the Texas Judicial Branch homepage. They span the entire state. 

I am very hopeful that these solutions become permanent, outlasting this pandemic, for three reasons: systemic transparency, democratic accountability, and economic efficiency

I encourage you to peruse these courts’ YouTube channels and see for yourself how things are done across Texas. Would you like to see what’s happening in a divorce court in Houston? Watch an oral argument in an appeals court in Austin? Watch a trial in Palo Pinto County? By viewing these courts, you can get an idea for how the system actually operates on a daily basis in real-time, unfiltered. 

Perhaps you, the voter, would like to see how some of the people you elected in Dallas County, or your respective county, are doing in the job you gave them. Do they handle their business like you expect them to? Are they fulfilling their campaign promises? It’s all just a click away. 

And if they aren’t, hold them accountable in the ballot box. 

Finally, from an economic standpoint, the new systems are way too efficient and cost-effective to be temporary. Travel time to and from court takes time and money. Witnesses that might not have been otherwise available to spend all day away from work waiting on their turn to testify are now virtually available in a moment’s notice. Faraway friends, family, and supporters of loved ones involved in cases––whether the accused or the victim––can now be a part of the process. 

We’re still at the beginning, but remote hearings have great potential. We’ve come a long way since mid-March and a time when I’d never heard of Microsoft Teams, or ever considered livestreaming my court. Though technology is changing the way we experience criminal cases, the logistical adaptations we’ve made in court leave us all better off than before. 

This article originally appeared in the May 8 editorial section of The Dallas Examiner.

Cliff Duke
Dallas

I occasionally leave Post-It notes for my family when I head out in the morning for work. The one still hanging on our cabinet today reads, “Who is ready for some spring break!” We were headed to the lake that night for a week off work and some recharging. Due to COVID-19, that was the last time I left early in the morning to head into the courthouse. That was the middle of March, almost four months ago. 

I’ve been lucky. The Dallas County Public Defender’s Office has the infrastructure and leadership that allowed us to shift to remote representation almost immediately. I work in a court with a progressive-thinking judge who started making the shift immediately, too. The district attorney’s office worked with me to PR Bond, or find alternate release options, for almost all of my clients to avoid the pandemic spread in the jail.

That’s not to say it was easy. I have been amazed finding out how many spinning wheels and cogs there are in our machine of criminal justice––substantially more than I recognized until they were all painfully brought to light. What was sad was how territorial and protective those wheels and cogs have been when they’re asked to do something even just a little different, let alone a little harder. That spring break at the lake I was looking forward to instead ended up being long hours figuring out new processes and converting documents to fillable PDFs. Remote work has ended up being a lot of hard work. And more often than not, it’s to find a workaround due to someone refusing to adapt “because we’ve always done it this way.”

Demanding adaptation is going to need to be part of representation in this brave new world. Our machine of justice needs to adapt and join the 21st Century. It’s going to be our fight to demand concessions and procedures that work for our clients. There is probably a lot of debate on what the right way to do things looks like. What I do know is that demanding our citizens accused to shoulder the complications is not acceptable. We must stay vigilant so that the core rights we are all entitled to aren’t eroded and should probably be expanded in a time of change. 

And that means we cannot be one of those sticky cogs. Don’t get me wrong, I miss the court and the people that we work with. I miss the ease of being able to go from court to clerk without 16 emails to get things done. Remote hearings and procedures are not right for every situation, but they can be better in a lot of situations, too. I hear as many defense attorneys not wanting to embrace change as I hear clerks, probation officers, judges, and DAs complaining about some change. Like it or not, change is here.

So yes, it can be harder. Yes, it’s going to take some experimentation. But I’m excited about new options for our clients that may alleviate the burdens our criminal proceedings frequently put on them. Not taking days off every two weeks to pass a case means a lot to an hourly employee. Having judges up to speed with remote technology means more of my character witnesses may be able to be there. And until we can get our act together and get this pandemic under control, we need to protect our clients and protect each other by changing where we can. 

And I can always look forward to spring break next year.

Joseph Hoelscher
San Antonio

The COVID-19 pandemic and associated chaos has been a mixed bag for me. I like that when I run to the neighborhood HEB in my “comfy clothes,” I can wear a mask and avoid being recognized. I dislike that the rules keep changing, forcing me to constantly change plans. On the whole, the biggest impact COVID has had on me is reminding me of the human side of the law and lawyering in dealing with colleagues, clients, and my family.

Before COVID, I used to see colleagues in court. There were plenty of chances to chitchat and catch up. Now, I know more about what their homes and offices look like from Zoom, but less about how they’re doing. I feel disconnected from folks I’ve known for years. I feel that disconnection even from the folks in my firm because we’re trying to work from home or socially distance. At first, I didn’t realize how that was affecting me. Over time, I realized that I was losing track of people I care about. Recently, I’ve been making an effort to reach out to friends just to check in. COVID has been a big reminder not to take people and relationships for granted.

In my office, before COVID, we worked hard to maintain good communication with our clients through office and jail visits. Now, communication is a struggle. Discovery review, in particular, is harder. We can’t get into many jails and detention facilities to share electronic discovery in a 39.14 compliant manner. We can’t have clients come to the office to sit down for hours going over discovery in complex criminal or family-law cases. As communication has become more difficult, the need has become greater, as we have to help clients use new technologies, such as Zoom. The normal stress of the legal process is compounded by the fact that our clients are isolated from their social-support systems and relying on us even more for emotional support. I feel, every day, my clients’ need for answers while feeling frustrated at our reduced ability to meet that need during this time of uncertainty. But I’ve also been surprised by how much concern our clients show for our wellbeing, too.

My family feels all the same strain that I feel. My wife, Melissa, and my kids have had their lives disrupted as much as anyone else. I feel like I’m in a ‘50s sitcom every time I come home and hear shouts of “Daddy’s home!” while getting swarmed for hugs. Unlike the ‘50s TV idyllic view of family, I have to tell my kids to hold off until I can wash my hands. Nevertheless, we’re spending more time together and finding ways to enjoy that time. Never before have my kids begged to come to my office on the weekends, just to get out of the house. As a result, I have homemade cards and drawings everywhere in my office, reminding me constantly why we, as criminal defense lawyers, fight for a better world.

COVID hasn’t been a happy time, but it has reminded me of the importance and strength of the three most important communities in my life: my colleagues, my clients, and my family. For that, I am immensely grateful. Their support makes it a lot easier to throw on a coat and tie over my pajama pants and go to court.

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