Declining decorum

Russell Wonsey sat in his living room the Monday before Thanksgiving, from all visible indications feeling comfortable in his skin.

The clock was approaching 9:30 a.m. and the Greenville man, naked from the waist up, stretched out his arms. Then he leaned back in his reclining armchair and took several deep inhales from his cigarette, blowing the smoke up into the air where it hung in a lazy fog above him.

Wonsey appeared relaxed as he stroked his beard contemplatively and waited.

There was just one problem.

Wonsey may have been in his own living room, but he was also appearing live in Montcalm County Circuit Court as a party in a divorce proceeding.

“I don’t know that the court’s notice could be more clear,” Ionia-Montcalm Circuit Court Chief Judge Ronald Schafer told Wonsey, referring to the court’s written policy for virtual proceedings, which states, “The (Zoom) call is a court proceeding and therefore an extension of the courtroom and appropriate conduct and attire is required.”

“Mr. Wonsey has taken the opportunity to appear in court this morning — because that’s what this is, court — smoking a cigarette and shirtless. That is offensive to the court,” Schafer declared. “Mr. Wonsey, your conduct this morning is repulsive. You do not appear in court shirtless and smoking a cigarette.”

Schafer found Wonsey in contempt of court and fined him $100.

“You can now sign off and when you can find appropriate attire for court, you can sign back on,” the unimpressed judge told the man, who didn’t have anything to say in his own defense and signed off without comment.

The incident is just one example of the colorful challenges county judges have faced as they strive to uphold virtual decorum in the year of the pandemic. Courts and their formal traditions have a long and hallowed history, but COVID-19 and Zoom are still new and being tested.

“Zoom does have its advantages and does have some efficiencies,” Schafer told the Daily News. “However, I think most trial judges would tell you it degrades the formality and dignity of the proceedings.”

 

EQUIVALENT TO ‘CALLING TO HAVE A PIZZA DELIVERED’

Schafer recalls a day this past summer when a judge tweeted about how she finalized someone’s divorce via Zoom.

“She went on to say the wife was shopping and stopped to join the hearing on her phone from the store,” Schafer recounted. “The husband was at work and joined with his phone while on his lunch break — the point being how convenient it was for the litigants and how the courts were still operating. The Supreme Court retweeted this, as did the chief justice as an example of how Zoom was keeping the courts productive and providing great accommodation to litigants.

“Lost in all of this, in my opinion, was the fact they were finalizing a divorce,” Schafer emphasized. “Zoom is great for a lot of things we do and can undoubtedly be more convenient for litigants and attorneys. However, there are certain things we do where the importance of the hearing, or what the importance should be, requires a formal, solemn, serious setting such as the courtroom.

“Marriage and the family has been the foundation of all civilizations forever. If we are publicizing and celebrating that Zoom now allows us to finalize a divorce on a brief break during lunch, or a pause in shopping, what are we saying about the institution of marriage itself? I don’t think finalizing a divorce should be the equivalent of calling to have a pizza delivered. Dismantling one of society’s most sacred institutions might call for more formality and a setting reflective of the seriousness of the institution itself.

“At the end of the day, there are many issues we handle in a courtroom that can be done over Zoom. Whether they should be is a debate worth having,” Schafer said.

 

SCREAMING LIKE ‘BRAVEHEART’

During a hearing this past Tuesday, Ionia County District Court Judge Raymond Voet found himself taking a plea from an Ionia man who was walking around inside a Walmart store.

Chris Bigford appeared via Zoom to plead guilty to driving while impaired by methamphetamine. Bigford entered his plea to the serious crime with Walmart’s signature “Everyday Low Price” blue sign situated prominently above his head.

But it’s 2020. Voet has seen much stranger things this year.

“Every session of court via Zoom that has involved the public so far has carried with it the possibility of something happening that you would not expect in a courtroom that diminishes the solemnity of the proceedings,” Voet said. “I have had people appear shirtless, smoking cigarettes, with a ball cap on. I have had family members and friends trying to butt in and speak on behalf of the person appearing in court. I have had the same people trying to whisper instructions and coach the litigant.

“I have had people angrily curse me, and even one litigant finished a hearing screaming in a way reminiscent of Mel Gibson in the movie ‘Braveheart.’ I have had people driving down the road in traffic in the middle of hearings. I had one litigant sitting on a street curb with a neon sign that said ‘liquor’ right above him. I’ve had litigants that I suspected are high or drunk and have no way of determining for sure.”

In an attempt to establish the correct tone before each court hearing, Voet displays and reads aloud the court policy for appearing via video and he also posts those rules every day on his court’s social media.

“While I have lost physical control of litigants, I at least have control of the technology at my computer and can mute and disable the camera of those not following the rules of decorum, and even eject people from the hearing if they become too unruly or persist in violating the rules,” Voet noted.

“With that said, decorum is just one of the problems with conducting court en masse by Zoom. The bigger problems are integrity and compliance with court orders. More than once I have had people in the room coaching litigants which is a problem by itself, but seriously compromises the integrity of the whole process when people who are testifying are getting cues and direction in the middle of testimony. It undermines one of the key engines of truth within our court system.

“Compliance with court orders is another major issue,” he said. “People are often ordered via Zoom to report to jail or submit to a drug test, or have no contact with an alleged victim, and they simply thumb their nose at the court with a delayed consequence at best. It’s a game of Russian roulette with public safety.

“All of that said, court by video is here to stay,” Voet admitted. “There are lots of simple and perfunctory hearings that have become incredibly simple and time efficient for all concerned because our tech savvy has been vaulted forward by the pandemic. The challenge for the courts after the pandemic will be to sort out which hearings are best by video, and which are not.”

 

‘RINGMASTER IN A ZOOM CIRCUS’

Some days, Ionia County Probate Court Judge Robert Sykes Jr. might as well be working under a big striped tent.

“I feel as if I am the ringmaster in a never-ending Zoom circus,” Sykes admitted. “Not only am I expected to preside over the hearing as a neutral arbiter — responsible for ensuring that the law is followed and that the case is presented properly — but I am also forced to police all of the participants that log onto the Zoom hearing. Unfortunately, no matter how much I attempt to stress that Zoom hearings are just as important and formal as regular courtroom hearings, many litigants continue to treat them as informal gatherings, where they act just as they would if they were sitting around having a chat with their friends.”

Sykes recounted a juvenile delinquency hearing he recently conducted with a 14-year-old girl and her mother.

“They were both very confrontational and argumentative as they sat on their couch in the comfort of their home,” the judge remembered. “I could sense things were getting worse as the hearing progressed.

“As I was concluding the case, the girl, who was covered by a blanket up to her neck, pulled her right arm out from underneath the blanket, gave me an obscene hand gesture and told me what I could do — all with the approval of her mother,” the judge said. “I am fairly certain this behavior would not have occurred if they were actually sitting in the courtroom, but they knew there was not much I could do remotely.”

Sykes says the most difficult hearings he encounters via Zoom involve child welfare cases.

“It is not uncommon for there to be upward of 10 to 14 participants per hearing between the mother, a couple of fathers, their attorneys, the foster care worker, the assistant prosecutor representing the Department of Health and Human Services, the children’s attorney, service providers, foster parents and interested family members,” he detailed. “Oftentimes, these hearings are very emotional and difficult to conduct under the best of circumstances in the courtroom, where I have much better control. With Zoom, it can become difficult to ensure that the participants are respectful to each other, do not interrupt whoever is speaking and wait patiently to be recognized by me. Of course, I have these same responsibilities when the hearing is in my courtroom, but I simply cannot create via Zoom the same formality and dignity that is inherent in a courtroom hearing.”

And then there are the daily technical problems with connections and equipment which frequently obstruct and delay court proceedings.

“It is very distracting when there is background noise that interferes with the sound quality, which in turn makes it difficult for my court recorder to make an accurate recording of the proceeding,” Sykes said. “I spend quite a bit of time during a hearing reminding the participants to mute their sound or to turn off their mute when speaking. There is also the never-ending problem with signal strength because many of our participants are located in areas where wi-fi or phone reception is weak. Occasionally, this requires me to ask the participant to actually call the court’s telephone number and participate by the now antiquated landline speakerphone system.

“Another problem that I have encountered is that the Zoom participants are able to text or email each other during the hearing, something that would not be allowed during a courtroom proceeding,” Sykes added. “They are also able to record the proceeding or take screenshots of the participants while sitting at home or in their car. This can lead to other problems beyond the court’s control.”

Not all virtual hearings lead to horror stories. Sykes made the best of his annual feel-good Adoption Day celebration this year by holding up two teddy bears to his computer screen for the enjoyment of two boys who were being adopted into an Ionia County family via Zoom.

“As Judge Voet said, Zoom has made routine and non-adversarial hearings easier to conduct,” Sykes noted. “It saves the participants the time of having to come to court for a brief hearing or uncontested matter. However, for many hearings, Zoom makes things more difficult. It will certainly be interesting to see how the Michigan Supreme Court incorporates Zoom hearings into court proceedings post-COVID.”

 

‘ALL IN A DAY’S WORK’

Ionia-Montcalm Circuit Court Judge Suzanne Kreeger has often found herself with a sore throat at the end of a busy docket day and wonders if she’s coming down with something — then she realizes her throat hurts from yelling and repeating herself into a computer microphone all day.

“People’s devices and the internet connections can make communication — and them hearing me — a real challenge,” she admitted.

Kreeger said technical issues have been more of a challenge for her this year than maintaining decorum in virtual court.

“It seems, though, I do have to ask people to take their hats off more frequently than when people are in the courtroom,” she observed. “It is not uncommon to have to ask litigants to sit up as opposed to them lying down, and to be still. There are those litigants who want to walk while they are talking or testifying and that can make this judge just a little nauseous! When litigants are in the comfort and relaxed environment of their home, I think it is easy for them to lose sight of the fact that they are actually in a virtual courtroom.”

Kreeger has witnessed a few instances in which people participating in court via the information superhighway were at the same time driving a literal vehicle down a literal highway.

“I have had to tell litigants to please pull over and that we will not continue the hearing if the car they are in is moving, or heaven forbid, they are operating it!” she declared.

But overall, Kreeger says she has found many advantages to using Zoom.

“I have had a few situations where someone has been unhappy with a sentence imposed or a decision made and has lost composure,” she said. “That scenario is where I have found the mute button, after a warning, to be quite effective.

“I love the efficiency of the option of being able to put attorneys in a breakout room with their client,” she added. “This way they can discuss an issue privately while I go on to another case. Then, when they are ready to go back on the record, they close the breakout room, come back into the virtual courtroom and we go back to their case next on the docket.

“The virtual option has served many litigants who do not have transportation or a driver’s license very well,” she noted. “The fact that we are able to increase safety for litigants and court staff in the midst of this pandemic certainly makes the minor inconveniences well worth the effort.”

Kreeger credited the Michigan Supreme Court and the State Court Administrative Office (SCAO) for being “proactive and visionary” in equipping almost all Michigan courts with Polycom and Zoom capability long before the pandemic arrived

“Conducting the Zoom hearings was a little daunting and a bit like learning a foreign language initially, but SCAO has been great in equipping us judges and staff through training sessions and supporting materials,” Kreeger said. “Now, it is all just part of a day’s work for a presiding judge.

“The only thing that really comes to mind for improving the virtual courtroom would be if there were perhaps readily accessible hot spots where people could go to be assured good internet service,” she added. “John Kroneck, who heads up substance abuse prevention in Montcalm County, recently mentioned in a meeting that when he was in transition between offices, he went to a library parking lot and even though it was closed, he was able to get a good internet connection there. Moving forward, that may be an option for litigants.”