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Court Updates and Challenges

Indiana Counties Are Trying Simultaneously to Contain the Coronavirus and Encourage Piecemeal Recovery and Reopening

Attorneys Marc Lopez and Matt Kroes recently discussed how different Indiana counties are moving forward in the summer of COVID-19, the realities and challenges conducting court business remotely, and the latest from the State Supreme Court. What follows is a lightly edited transcript of their conversation.

Marc Lopez
So I wanted to just do a quick update with you. The courts, kind of open, kind of closed. Give me your thoughts on this, man.

Matt Kroes
Yeah, so the Supreme Court order has kind of expired with regard to how courts can actually operate and things of that nature, when it comes to closures. So we’re seeing, on a county-by-county basis, some slow reopening. At least Marion County-specific, we’re not seeing any in-person hearings. Everything’s pretty much going to be virtual for people that are out of custody, until at least June 15. They are doing some in-person hearings, but those are mainly essential, so you’ve got to think people that are in jail, people that have the ability to get out of jail, so the bond reviews or things of that nature—maybe a guilty plea and sentencing where the defendant gets out of jail. They’ll probably do that in person. And then some other counties—Hendricks County, Hamilton County, to a certain degree Boone County—they’re all doing some in-person hearings, as is Johnson County.

Marc Lopez
Real quickly, today is May 20—

Matt Kroes
Yeah.

Marc Lopez
—2020. Johnson County. What kind of hearings are they doing?

Matt Kroes
Johnson County’s doing, you know, depending on which court . . . We’ve had attorneys in our office—Attorney Bailey’s already been to Johnson County a couple of times during the shutdown and whatnot for pretrial conferences and check-ins just to make sure everything’s moving along. A lot of these courts are doing what’s called attorneys only to try and limit the amount of people that are in court. Ultimately, what they’re trying to do is just make sure the attorneys are still working on the cases, and that things aren’t just being completely shut down, because the entire state has been.

Marc Lopez
So Boone County—are they doing hearings in the court house? Doing virtual? A little bit of both? Give me your thoughts.

Matt Kroes
Boone County, from—

Marc Lopez
A pop quiz, Matt. I’m going to do a pop quiz. It’s Boone County.

Matt Kroes
Yeah, Boone County’s doing essential hearings in person. Again, Attorney Bailey’s been out to Boone County a couple of times with guilty pleas. They’ve been pretty strict about who can get in and who can get out, though. They’ve had a testing center out front—basically making sure you don’t have a fever, you don’t appear to be sick—and they’re taking your temperature, I believe, before you can you go in.

Marc Lopez
They’re giving out wristbands. They’re giving out wristbands—

Matt Kroes
Yup.

Marc Lopez
—too, like, the day of the week.

Matt Kroes
Yup.

Marc Lopez
The bottom line, every court is basically doing some different stuff. Am I right about that?

Matt Kroes
You’re 100% correct. You’re 100% correct.

Marc Lopez
And so this isn’t a situation where every court is doing exactly the same. We’re constantly reaching out to court staffs. You, Attorney Benitez, Attorney Bailey, myself—the court staffs have gone out of their way to make sure that we know what’s going on, and that our clients are taken care of. We’re getting emails, and they’re working so hard. We’re getting emails throughout the day. In some instances, court staff’s emailing us late into the evening, because they’ve got to get home and take care of their families, too.

Matt Kroes
Yeah.

Marc Lopez
Everyone’s dealing with the same stuff right now. I’ve been so impressed with how everyone has worked together so hard. It’s just been amazing. So Matt, we talked a little bit about Boone, Johnson. Give us a quick rundown—the Tweet version of what Hendricks County’s doing.

Matt Kroes
Each court’s a little bit different. Now Court 5, for example, is doing everything telephonic for the most part when it comes to private attorneys and people out of custody. Other courts are doing in-person, but only if the case can be resolved and has everything filed well ahead of time. So policies, procedures are changing daily, which is kind of building off what you said with regards to court staff. I mean, it’s just been absolutely phenomenal how hard they’ve been working and communicating. I mean, Hendricks County’s a perfect example. I got an email from court staff at eight o’clock at night—it really is all hands on deck. It definitely helps that we have great relationships with everybody, too.

Marc Lopez
Give us the Tweet version of what’s going on with Hamilton County.

Matt Kroes
Hamilton County is trying to do as much as they can virtually, so they’re using Microsoft Teams to try and do some hearings. If there is something—like a trial, for example, or something that needs witnesses or somebody to come in—they’re still moving those hearings on their own motion. They want to just make sure that everybody’s as safe as possible. Initial hearings are being scheduled in June, so even though we’re starting to open up, it’s definitely a slow roll-out.

Marc Lopez
And what about Marion County?

Matt Kroes
Yeah, so Marion County is pretty much doing everything attorneys-only and virtual. So, for example, we used to have a bunch of hearings set on one day. Now they’re just doing everything virtually through Zoom and Webex to where it’s just the attorneys, the judge, and court staff—just making sure that everything is moving along and things aren’t being forgotten. So ultimately, they want to make sure that the attorneys are moving cases. 

To be honest, one of the big changes coming out of this is I think we’re going to see the end of—for lack of better term—what attorneys call “cattle-call dockets,” where courts will set 40, 50, 60 hearings at the same time. I don’t think we’re going to be seeing that anymore. I think with the new age with virtual, I think we’re going to start seeing less pre-trial conferences and cases moving a little bit quicker. A lot of things are being done virtually, right now. In-custody people and people that can get out of custody—especially in Marion County—those are still in person. Even still with some of the sentencing hearings that are open—for example, if you’re looking at a lot of time in Department of Correction—they’re still doing those live, too.

Marc Lopez
You know, the courthouse truly is where people from all walks of life will come together in a very small area. I was a prosecutor. I was in court every day for the first 12 years of my practice. You just see people come in looking terrible—feeling terrible, coughing, sneezing. I’ve gone to court sick in the past. It’s such a tight environment, and I really, truly don’t believe they’re being over-cautious. I really, truly believe that every prosecutor, judge, and public defender I’ve ever met has gotten sick. They’ve been to court. Someone’s sneezing two feet away. You get sick the next week, the next day. And so it’s not like you’re eating outside, the fresh air is blowing on you. You really are in tight quarters. A lot of these courthouses—particularly the City-County Building—they’re a little bit older. You just know the ventilation system is not what it used to be. You know, you look at Hamilton County—they’ve got that nice, newer courthouse that just—

Matt Kroes
Yeah.

Marc Lopez
You’d think it’s a little bit different there, but it’s the same problem. You know, you hear about these jails having these breakouts. The people in jail are pretty much the same people we’re seeing in court, so I don’t blame these courts at all for trying to do as much as possible to keep people out of the courthouse. That’s not saying they’re limiting justice, but trying to prevent the spread of germs. 

Now, Matt, you made a comment, and I wrote this down. Right now, it looks like there are three virtual programs that courts are using.

Matt Kroes
Yeah.

Marc Lopez
Zoom, Webex, and Teams. All three of them basically allow audiovisual communication, correct?

Matt Kroes
Correct. Correct, yeah.

Marc Lopez
What is the big difference between the Zoom, Webex, and Teams? Give us a little rundown on those three.

Matt Kroes
Well, I mean they’re all essentially built on the same platform—so I mean really, it’s just one of those, What do you prefer more? What do you prefer less? You know, Zoom kind of came out and it hit the ground running really quick, and people took to that. Then they had the whole scandal with people Zoom bombing and getting into Zoom meetings and things of that nature. With court proceedings, a lot of times, some of the stuff’s confidential. Even though courts are supposed to be open, there are some meetings that are supposed to be confidential. For example, if I’m talking to a client or you’re talking to a client over Zoom, that’s covered by attorney-client privilege. If someone jumps in on that, and you don’t know about it, that privilege goes away. 

So you see some people going to Webex. It’s on a Cisco platform. A lot of people are very familiar with Cisco, and then they’re one of the leaders in telecommunications, so a lot people are going towards Webex when it comes to court hearings and things of that nature. And Teams—I haven’t used Teams very often. I may have used it once. I mean, it’s all pretty much the same. They all pretty much have the same functions and features and get you what you need. I think it’s just user preference.

Marc Lopez
It seems like when this hit, I feel like Zoom—for whatever reason—they made this a little bit more user friendly, and it really just took off. I mean, I had used Zoom maybe a handful of times in the past two years, and then since this all happened, I’ve been in a Zoom every day.

Matt Kroes
Yeah, sure.

Marc Lopez
Whether it’s a legal conference across the country, talking with attorneys, talking with staff, talking with court staff, talking with judges—we’ve done a few virtual consults. We’ve been doing telephone consults for the longest time. But my understanding is Webex has been around the longest, followed pretty closely by Teams. You know, I’ve got people saying Teams is just amazing, but I love Zoom. I mean, maybe that’s because it’s what I’m using the most. It just seems really easy to work with. I’ve polled the attorneys here—between all four of us, we’ve used every single platform between Zoom, Webex, and Teams. It doesn’t seem like anyone’s a clear winner. I know Marion seems to like Webex. Hamilton County seems to like Teams.

Matt Kroes
Teams.

Marc Lopez
And other counties are doing Zoom, so there’s no kind of universal approach. That’s one more thing I want to talk to you about. The Indiana Supreme Court has actually released an order—this was actually May 13, so this was last week—but basically, they’re saying the courts are free to use audiovisual communication to conduct proceedings wherever possible to ensure all matters proceed expeditiously and fairly under the circumstances. They’re even saying in all proceedings including felony cases—guilty-plea sentencing where the defendant waives the right to be present, any kind of witness testimony where the defendant waives the right of cross examination—now the trial rules have always allowed for a telephonic proceedings, but there were some other rules where guilty pleas really aren’t allowed, and if they were allowed, it was like a little gray area. Then if they were allowed and you were in that gray area, it was kind of like you probably shouldn’t do felonies. The Indiana Supreme Court has said, Hey, you know—safety first. As long as the defendant is not prejudiced, let’s take care of business.

Matt Kroes
Right.

Marc Lopez
From an attorney-on-the-street perspective, Matt, how hard has that been to coordinate virtual hearings when a client is not right next to you? Tell us about that process.

Matt Kroes
Generally, what will happen is it’s kind of a mixed bag. If you get the link and you get all the instructions early on, it’s pretty smooth, because you can reach out to the client, get them the information, and make sure everything’s working. I’ve had instances where I’ve gotten—even though it’s attorneys-only—I’ve gotten the invite or the link hours before the hearing, and it’s just kind of trying to scatter. But the biggest issue that we’ve had—or at least that I’ve had—with trying to coordinate it is Zoom, Teams, Webex—whatever the platform is—it takes up a little bit of bandwidth, and you have to have the capability of being able to support that. This isn’t something you could just be driving down the road on your cell phone in a two-bar service that’s going to work. You have to have some pretty high-powered stuff, so you’ve got to make sure that it’s working there. When it comes to guilty pleas or it comes to something where you have to have that, it becomes even more important.

Marc Lopez
And you know, I’m the one that purchased the internet package for this law firm. I’m the one that pays the bill every month. When I purchased this internet for the office, I purposely did not go out of my way to get top-of-the-line, because—number one, we didn’t do video every day. We weren’t doing games. We were doing research on the internet. We were saving online to an encrypted drive, but I never in my wildest dreams thought that my internet would have to support three attorneys having four virtual conferences, and then plus possibly the clients down the road. 

I mean, it’s small changes and it’s stuff that we weren’t expecting, but we’re trying. You know, one of the big things that I’m concerned about is—I’m a little bit nervous—when things do start picking back up, is if judges start trying to really encourage Zoom trials, Zoom jury selection. You know, the Indiana Supreme Court order says, “All proceedings must be consistent with a party’s constitutional rights,” but then it says, “When jury trials can resume by order of this Court, parties may agree to use audiovisual communications, consistent with this Order, to select a jury.” It says they have to agree. Then another section says, “Any party not in agreement to the manner of the remote proceeding must object at the outset of the proceeding, on the record, and the court must make findings of good cause to conduct the remote proceeding.” I see this order, and I see a lot of good from it, but it makes me nervous—

Matt Kroes
Yeah.

Marc Lopez
—for our clients. You know, you and I have done self-defense jury trials—two of them this past year—and how can you communicate self-defense if you can’t see the jury, talk to them, make eye contact? This definitely gives me a little bit of pause.

Matt Kroes
Well, it’s not only that. I mean, not being able to see or talk—when it comes to witnesses in trials and things like that—I mean, body language is huge. You and I know this from the trials that we do—body language speaks more volume than somebody just talking. Not being able to read that—I mean, I think there was a case in Texas a week ago. They were trying to do a trial—this wasn’t a criminal jury trial or anything like that—but there was a jury trial nonetheless. In the middle of the trial, one of the jurors got up to take a phone call. So you’re definitely getting a shared opinion from me, when it comes to nerves from doing trials by Zoom.

Marc Lopez
We are not doing too many civil trials right now, but anybody listening to this—jury trial, whether it’s criminal or civil—be very careful about agreeing to do a trial audiovisually. If you go to Psychology Today—this is the most recent month, May 2020—there’s numerous articles in there. You know, when people are in the vicinity of each other—basically, if you’re by somebody, it’s easier for you to put yourself in that person’s shoes. It’s easier to stay focused. It’s easier to see the entire picture, and not just hear the words. What is their body language? How are they saying the words? How are they giving their testimony? 

All these things matter, and I think it’d be a tragic mistake for trials to be done via audiovisual methods. I know that civil courts and civil attorneys have been calling doctors with a video-taped deposition for the longest time, but this is completely different. This is more than just an expansion of that, so it’s caused me a little bit of concern. 

So moving on a little bit though—Matt, you have been ridiculously busy with Specialized Driving Privileges, man. You would think that the courts have slowed down, you would think that people’s applications for driver’s licenses would kind of go by the wayside, too. What’s going on with that, man?

Matt Kroes
You would think common sense and logic would dictate, Hey, the courts are slowing down, so licenses are slowing down. It’s actually the inverse of that. So with courts slowing down—first and foremost, I praise the prosecutors, court staff, and judges for having the parties try and come to an agreement to see if there’s a way that we could do this without a court hearing. In a lot of instances, we can make that happen. 

There are some—if you’ve got a bad criminal history, for example, or a few DUIs in your past—they’re still going to want to have a hearing just to make sure that everything’s on the up-and-up. But for the most part, the judges are giving defense attorneys and prosecutors the ability to try and negotiate these things—to come to an agreement—so we can get people driving legally. 

It’s interesting, because we’ve seen it skyrocket. I mean, I’ve been nonstop probably for the last few weeks with driving folks, because they have time to sit down and really kind of hammer this out, get this under control. Unfortunately, you’re seeing people lose their jobs. You’re seeing people being laid off and this and that. We’re going to get through this. I mean, this is going to end. At some point, we’re going to start moving forward at greater speeds, and people are going to need to drive. Now is kind of the time to do that. 

In addition to being able to drive, I know you and Attorney Bailey have been pretty busy yourselves trying to get criminal records expunged and trying to kind of go off of that a little bit. So I imagine with you guys, you’re kind of seeing that same relationship, you know, people having time. Am I right?

Marc Lopez
Yeah, so you know, I think a lot of people are at home. I think a lot of people are considering whether their job is safe. They want to try to put themselves in the best position possible to keep their job safe. Folks that have lost jobs are trying to make themselves the best applicant possible, and expungement does offer that. Basically, if you’re able to get your misdemeanor or lower-level felony expunged, it’s completely gone. The exception is that law enforcement can find it, but you can answer on job applications, Never been arrested. License application—Never been arrested. It’s actually illegal for someone to discriminate against you.

Higher-level felonies, they get a little bit more complicated. They’re expunged, but they’re still visible, but then they’re still not supposed to discriminate against a person. It’s more complicated, but you’re seeing a definite interest in people wanting to just put their best foot forward with society. And the best thing about this is we’re filing these in the counties, and the prosecutors are getting right back to us—Hey, we don’t object. 

Usually, you’re like this with the prosecutors—Hey man, you got one more day to respond. Come on, what’s going on? And now these prosecutors are emailing you back. In one case—the very next day—we got a no objection. We had an expungement filed on Monday, granted on—I want to say a Thursday night—might have got the order on Friday. Unheard of. So especially with the courts that don’t require a hearing—we’re flying through these. This is an absolute game-changer for everyone that gets an expungement. You know, if you qualify, why not? Make yourself the best possible candidate. 

So we covered everything here, Matt. We got what’s going on with the courts. We got the audiovisual communications. We got the Supreme Court order. We got Specialized Driving Privileges. We got expungements. In the show notes, I’ll stick some notes by the Indiana Supreme Court. They actually put some tips on how to do a Zoom meeting. A lot of them just make sense, but it’s nice to have one little spot. I’ll try to find a way to insert that somewhere. I’ll also try to put the order expanding remote proceedings, as well. So if anyone has any questions, give us a call. 317-632-3642. Remember, always plead the Fifth.

Matt Kroes
Plead the Fifth.