Advocates demand virtual access to Allegheny County criminal courts: 'It's not difficult'

Two advocacy groups called an Allegheny County court policy requiring the public to attend hearings in person even though proceedings are being held virtually “unlawful,” and threatened to file a federal lawsuit.

A letter sent Monday by the American Civil Liberties Union of Pennsylvania and the Institute for Constitutional Advocacy and Protection at Georgetown Law, is the third one to President Judge Kim Berkeley Clark since May.

Each letter has asked court administration to make criminal court proceedings available to the public — either through live-streaming online or through a teleconference audio link.

That still has not happened, said Nicolas Riley, senior counsel at the institute.

Allegheny County District Court Administrator Chris Connors said the administration received the letter, and the matter is being reviewed.

Riley said he has gotten polite responses from Allegheny County but nothing that indicates they are considering changing their policies.

“We’re not sure why they’re so reluctant to do what so many other jurisdictions across the country are doing,” he said. “Since the pandemic started, you see a clear move toward remote access.”

The letter called the court’s actions “troubling,” especially given the recent surge in covid cases.

“Requiring members of the public and the press to physically visit courthouses in order to observe a virtual hearing is neither safe nor reasonable at this stage of the covid-19 pandemic, especially now that the court has explicitly directed parties and their lawyers to refrain from attending those hearings in person,” the letter stated.

It further notes several people within the courts have tested positive for the virus, including eight people in the system who were posted on the court’s website just this week.

Riley said there are several reasons why lack of access to the courts can be detrimental to the public.

Judges in criminal court proceedings decide issues of importance not only for defendants, but for their families, alleged victims and the community.

Legal expert weighs in

University of Pittsburgh law professor Arthur Hellman said the right to a public trial is part of democratic self-governance.

“Trials are where we see the coercive force of the government and how it is being enforced on an individual,” Hellman said.

Courts, he said, can take away an individual’s liberty, and it is essential for citizens to observe how that authority is being exercised.

The advocacy groups, Hellman said, have a plausible case, especially when other cities have had no problem providing remote access to the public.

“Increasingly, it is recognized that it is something courts ought to be doing,” he said.

The recent U.S. Supreme Court decision on church occupancy limits out of New York could be informative, Hellman said.

In that decision, the majority wrote: “Even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

Hellman notes the decision is about religious freedom but could just as easily apply to the Sixth Amendment, which guarantees an accused the right to a speedy and public trial.

Some concerned about safety

Some courts and judges have expressed concerns about allowing video streams of criminal court proceedings to be publicly available and the possibility of having proceedings illegally recorded, edited, taken out of context or used to threaten or harm officials, witnesses or victims.

“It’s not a frivolous concern,” Hellman said. “There’s no question there are dangerous people out there who will use information in ways that are very harmful. But when it comes to trial proceedings, the presumption is they are open to the public.”

The general policy of the U.S. Supreme Court, he continued, is you can’t have a blanket policy to close proceedings and that the issue must be decided on a case-by-case basis.

“It’s a question of balancing,” Hellman said.

Video, he said, would bring more potential risk than audio.

“It would seem to me, it would be very hard denying access to audio,” Hellman said.

But Riley believes if videostreams of court proceedings posed a real risk, there would be examples from the dozens of jurisdictions already allowing remote access.

And, even if there is a risk, he continued, “there are safeguards for all of these things they could implement.”

In some jurisdictions, such as Philadelphia, early in the pandemic, if a member of the public wanted to observe an online proceeding, they were required to contact the court’s public information officer and provide their name and email address to get a link.

That way, Riley said, if there were a problem, the courts could track the parties who participated.

Other jurisdictions just allow the public to listen on a telephone line.

“In Pennsylvania, the majority of trial courts aren’t doing any of those things,” he said.

Although during the pandemic, Pennsylvania’s appellate courts have begun live-streaming oral arguments over YouTube.

Hellman said live-streaming oral arguments — where the parties involved are elected judges and attorneys — is different than putting on display regular citizens caught up in the criminal justice system who are not bound by professional obligation.

Other states doing it

In some states, Riley said, their judicial websites give livestream access to each judge’s courtroom — like in Michigan and Rhode Island.

In Washington, D.C., he said, you have to call to request a link in advance.

“They’re still making it available,” Riley said.

At a minimum, Allegheny County could provide a phone link, he said.

“It’s not difficult; they have the technology to be able to do it.”