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The new normal in the courts, as they begin to reopen

Marian Hetherly

After two-and-a-half months, New York State courts are beginning to reopen, including those in Western New York. But just like every other place since the COVID-19 pandemic began, litigants are returning to a new normal.

The courts have been hearing "essential matters" only since mid-March, and most employees and others have been working remotely, like the rest of the world -- all allowed by an executive order of the governor.

"Before COVID, for example, if someone's arrested in the City of Buffalo, the lockup is in the basement of the Buffalo City Court building, and then that person in the morning would be brought up in front of the judge in person and they'd be in the courtroom," said Paula Feroleto, administrative judge for the 8th Judicial District. "Their attorney would be in the courtroom, the assistant district attorney would be in the courtroom, you and sometimes family members are there, sometimes not. Instead of doing that in the courtroom, everybody's in front of a computer and appearing via Skype."

In that example, criminal defendents at police lockups are Skyped in to their arraignments, talk to their attorneys by phone, before listening to the assistant district attorney in her office and judge back in his office discuss bail and a future court date. Defendants and law enforcement are supposed to wear facial coverings when social distancing is not possible, and contact points like phones and headsets are to be disinfected after every use. At the same time, the court clerk and a limited number of people can view the proceedings in the courtroom, which also observes social distancing and other pandemic mandates.

"I think it's worked pretty well with all of the members of our local law enforcement," said Feroleto. "Like Cheektowaga. In the past they were actually arraigned in Cheektowaga Town Court. We're doing all of those arrangements centrally, because we have the computer technology, the ability to generate all the paperwork and the ability to have an attorney present at the arraignment for the person who's arrested."

On May 21, the courts moved into Phase 1 of reopening. Instead of one central court building in downtown Buffalo, all 22 court buildings across the 8th District are open. Towns and villages can now hold proceedings in their own courts or use the technology downtown, if not available in their own municipality.

The proceedings WBFO watched remotely on Skype May 29 included defendants from Buffalo, Cheektowaga, Lackawanna and the Erie County Holding Center before one judge. There was a lot of waiting in between, as attorneys conferred with their clients and new defendants were brought in from their holding cells. Some defendants and law enforcement did not appear to be wearing facial coverings in each other's presence.

Feroleto said on that day, there were 26 arraignments, bail application reviews and temporary orders of protection: just a "small fraction" of the usual cases.

"A huge drop in volume between pre-COVID and post-COVID," she said. "Buffalo City Court alone, you could have 50-100 arraignments in the morning that were getting handled. So there were huge drops in volume, lots of cases not being handled."

Multiply that times all the courtrooms across Western New York and that equals the backlog of cases resulting from the coronavirus, from new divorces and estate settlements to bankruptcies and grand jury indictments.

How will the courts handle the backlog?

Feroleto said before COVID-19, the courts were heavily pushing mediation and alternative dispute resolution to help resolve out those cases that did not require court action. She said that will continue to help clear the backlog created by the pandemic.

"That's a new challenge, no doubt about it," she said. "You know, in matrimonial actions, the courts don't have a magic wand that's going to take away all the anger or frustration, say, that parents have against each other and they're using the children as mediums to fuel their fights. It's not a healthy way to resolve a case and, even if a judge makes a decision, he hasn't healed the wounds in between."

Despite the new normal, Feroleto said Family Courts and Erie County have handled almost 2,000 matters since the middle of April through the end of May, while the Supreme Court has handled 4,500 matters and disposed of 945 cases.

Credit Marian Hetherly / WBFO News
Administrative Judge Paula Feroleto talks to WBFO by Skype from Niagara County.

There is no district-wide reopening plan yet, but when jurors and others do return to the courtroom, Feroleto wants them to know it will be a safe environment.

"We are working on plans where people will be socially distanced. Everyone, of course, will be wearing masks," she said. "There are certain people that are more susceptible than others. We'll be following what the health experts and scientists tell us. So those with underlying medical conditions that makes it particularly bad for them should they get COVID will certainly be excused."

Feroleto said traditional jury rooms are too small for social distancing, so officials are looking at larger gathering spaces. They also have been having the same difficulty getting disinfecting supplies as everyone.

"I think we're the same as everybody else who's struggling to get gallons of hand sanitizer," she said. "We're working centrally through our Department of Public Safety, who is working on distributing centrally out to all of the different 62 counties across the state the necessary equipment, gloves. There are no Clorox wipes anywhere to be had by anybody. So we're using hand sanitizers and rolls of paper towels or wipes to wipe things down. Just like everybody else at home, we're making do with what we have."

Feroleto said some of the efficiencies put in place since the pandemic began -- like remote proceedings -- will remain during the reopening phases and post-COVID, in cooperation with the public defenders, defense counsels, district attorneys and others "in terms of what guarantees the rights for the defendants, as well as what promotes safety, security and what works best for everybody."

"For outside agencies and the travel police agencies, I know that saves a lot of time and manpower in terms of costs. And I think, generally, it seems to be safer in terms of points of contact where someone could get sick or be exposed," she said. "There were definitely bail applications that were brought based upon the COVID issues. There were some jail release applications that were brought for people who had less than 45 days left in their sentence, in terms of for non-violent crimes, to be released early. So it was certainly taken into consideration by everybody involved in the system: defense attorneys, the district attorney and the judges."

COVID-19 and alternative dispute resolution information can be found on the courts website. WBFO reached out to the Erie County Bar Association more than once for comment, but did not hear back regarding an interview. However, it does offer COVID-19 information for attorneys and others on its website.

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