BENNINGTON — Back in early fall, a woman stood around the parking lot of the state office complex while a case involving her 11-year-old granddaughter was being heard in one of the courtrooms.
She came with the girl’s father to attend the hearing, but learned at the building entrance that new pandemic-related safety policies allowed only one person per family inside the courtroom.
“I was confused and angry,” the girl’s father said of the change in policy that caught them unaware. He and his mother had driven more than half an hour to see if the criminal case — in which his daughter reported being lured by an elderly man — would be any closer to a resolution.
The girl’s father said he’d offered to wait outside the building. But his mother said it was more important that the parent attend the hearing.
This week, case victims like them didn’t have a choice. When the majority of state court hearings went fully remote, the setup didn’t offer access to the public, including the media, relatives of case victims and of defendants.
First amendment advocates and the head of the Senate Judiciary Committee have said general access to remote public hearings in Vermont should be established without delay.
“The program should be set up as soon as possible,” said Sen. Dick Sears, chairman of the Senate Judiciary Committee and a member of the Legislative Committee on Judicial Rules. “I believe strongly in the public’s right to know.”
After the coronavirus pandemic hit Vermont in March, the Superior Court’s remote-hearing platform allowed routine access only to case participants. They included defendants, defense attorneys, prosecutors, victim advocates and witnesses, who could participate by phone or video call.
Members of the public could attend hearings in person at the courthouse, but they had to be people connected to a case or media representatives.
When coronavirus infections began rising across the U.S. after Halloween, the Vermont Judiciary ordered all nonemergency hearings to be held remotely the week after Thanksgiving, Christmas and the New Year.
Court officials said this was being done to limit the spread of the COVID-19 disease, which as of Friday has sickened 4,763 Vermonters and killed 77. Nationwide, 14 million people have been infected since January, according to the Centers for Disease Control and Prevention. At least 275,000 have died.
On Tuesday, a Bennington courtroom where criminal cases were being heard was locked when a Banner reporter tried to enter. A security officer had to unlock it, since the Banner had been given permission to cover the proceedings in person.
Only two people were inside: the presiding judge and a court clerk. Everyone else was participating remotely. Once the reporter left, the court clerk locked the courtroom door again.
WORK IN PROGRESS
State court officials recognize that public access to nonconfidential hearings is critical. But they said the necessary equipment, software, staff training and policies to launch the program was not yet completely ready when the pandemic started.
“The Judiciary is in the middle of working through the establishment of those policies,” State Court Administrator Patricia Gabel said Friday. “Due to the compressed time frame created by the pandemic, we are rolling out the technology to support remote hearings at the same time we are conducting the hearings themselves.”
Gabel didn’t say when the Judiciary expects to roll out public access to remote hearings, but said more information on the program should be available by the middle of next year.
In the meantime, she said, members of the public, including the media, who want to observe a remote hearing can request for it to be livestreamed.
Once Chief Superior Judge Brian Grearson approves a request, the proceeding can be livestreamed if the court has enough notice and the resources. “We will do our best to accommodate the request,” Gabel wrote in an email.
Until Gabel’s email on Friday, the procedure for getting public access to hearings was confusing.
On Monday, the Bennington Superior Court livestreamed a hearing that the Banner indicated it needed to cover. On Tuesday, the Judiciary declined to livestream four hearings that the paper wanted to cover but allowed its courts reporter to attend the proceedings in person.
On Wednesday and Thursday, the reporter was granted access to the court’s official remote-hearing platform. This took place after Sen. Sears got in touch with Judiciary officials about providing public access to hearings.
State Rep. Linda Joy Sullivan, also a member of the Judicial Rules Committee, said the lack of established public access to hearings is “regrettable.”
But she expressed confidence that judges and clerks are “sensitive to these sorts of public access questions, which can have important constitutional implications.”
VARYING STATE POLICIES
Since the pandemic started, state courts around the country have established varying policies on public access to nonconfidential hearings.
In New England, states at the forefront of giving access include Massachusetts, New Hampshire and Rhode Island, according to the New England First Amendment Coalition. They allow the public to attend either by listening in over the phone or watching the proceedings online. Access numbers or weblinks are provided by the courts.
The organization, which promotes public access to the government’s work, said that almost a year into the pandemic, courts should have already worked out how to provide public access to hearings.
“That’s far too long for any state to go without establishing some kind of consistently enforced policy that allows the public to access its court system,” said NEFAC Executive Director Justin Silverman.
“Other states are providing that access, so it can be done,” he said. “It should be done, and the public should demand that it be done not months from now, not weeks from now, but done now.”
On Friday, Sen. Sears said he intends to bring up the public access issue at next week’s meeting of the Judicial Rules Committee. Sears said the committee reviews rules issued by the Vermont Judiciary and gives feedback on them, but doesn’t have the power to prevent the rules from taking effect.
“We do have the power to write legislation to change a rule,” said the Bennington lawmaker.