Opinion: Lives Hang in the Balance as Courts Resume In-Person Work

The last day I was in a courtroom was a little before 1 a.m. on March 14^th, as I wrapped up a shift in Brooklyn Criminal Court night arraignments. I had no idea, as I met with clients,  spoke to prosecutors and argued to the judge, that I carried COVID-19 and facilitated its spread to colleagues, clients and court staff. 

I felt fine, but “fine” is usually the best I can ask for when running on the fumes of vending-machine caffeine.  I had no idea that I felt rundown and  had a stomachache because I had already become  infected with a potentially fatal virus.

I was in court that night because a high-risk colleague needed to get out of the shift, and I am young, healthy, and have no contact with anyone high-risk. I didn’t know a single person who had tested positive or had any semblance of symptoms. I washed my hands. I avoided touching my face. I even used hand sanitizer- something I swore off in college after I learned about superbugs. 

Socially distancing wasn’t an option. I, along with six other lawyers and a clerk, sat in an area that was maybe eight feet by eight feet. We passed papers and pens back and forth. My clearest memory from that night was, in a rush to fill out a form, using my mouth to uncap a pen. That night isn’t just etched in my mind because it was my last time in a courtroom, but because colleagues from that night got sick shortly after, and a few weeks later, one of them died. 

About 36 hours after I walked out of that courtroom, I got a fever. It wasn’t very high but it came with body aches and a dry cough. Since it checked all of the CDC boxes at that time, except, mercifully, shortness of breath, I started telling people. 

I wanted to make sure everyone whom I had seen knew what was going on so they could isolate themselves, know to look out for symptoms, and prepare to be sick. I emailed my office’s COVID inbox. I called friends. I texted colleagues, adversaries, court staff, and others. Mostly they hoped I was wrong, that I just had a cold. Mostly I said I hope I’m wrong too. I didn’t know. I’m sorry. I was finally tested a few days later and received results nine days after I got the fever. The test came back positive. 

I knew some of the people I was in court with that night were high-risk—some colleagues, some clients. And I knew how close together we all sat. How we shouted to be heard in the client interview booths. How we lean in close to colleagues and adversaries in order to hear one another while other cases are being discussed on the record. What I don’t know, what I can’t know is who, if anyone, I infected that night. Did I give a colleague the virus as I handed them a pen? As I laughed at a joke? I don’t know. I can’t know. I do know it’s not my fault. I didn’t know I was sick. I couldn’t have known I was contagious. 

I also know that I shouldn’t have been in court that night. No one should have been. The New York State Office of Court Administration already had a plan to conduct court virtually but they waited to put it into place until the case count was higher. And that was too late for so many. 

Right now, they are trying to send us back to court, which will force our vulnerable clients to face unnecessary exposure on public transportation and from court staff and other people in the building. If courts begin to approach “normal” operations they will wait in lines for temperature screens and metal detectors, take crowded elevators to high floors, and wait in courtrooms to have their cases heard on non-emergency matters.

If you’ve never been to courts in New York City, even the newest buildings are teeming with people and their germs. Just to call a single case, there have to be at least 10 people in the room. One judge. One clerk. One court reporter. Four court officers. One prosecutor. One defense attorney. One person who stands accused of a crime and possibly their family members. So when OCA tells us that it will only have 10 cases on at once, that doesn’t mean just 10 people confined to one courtroom, but many, many more, all at risk of contracting and spreading the same virus that killed so many, including my colleague. 

The courts continue to be super spreader venues with poor ventilation and little room to socially distance. Even with limited calendars and staggered times,  New Yorkers accused of crimes, along with their family and attorneys will wait for much longer than the CDC’s recommended fifteen-minute cutoff for close contact.  When courts are operating at full capacity, they often wait for hours. There is loud talking. And close talking. And it is extremely difficult, often impossible, to know who was there on a particular day for contract tracing purposes. Re-opening the New York City courts to non-emergency, in-person appearances right now is an unnecessary mistake. It is a mistake that will have fatal consequences. 

Court appearances have been happening every day through this pandemic. New Yorkers are arraigned from 9 a.m. until 1 a.m. and often later. Pleas are taken. Cases are dismissed. Preliminary hearings are being held. All via Skype. It’s not perfect. It’s hard to create trust with a client, to convince a judge or a prosecutor by yelling into my laptop, over my AC and theirs, from my kitchen. But it’s safe. Safe for clients, colleagues, adversaries, and the court staff. 

It’s not worth holding in-person court just to say that it’s being done—not until it’s safe to return to court.

Martha Lineberger is a public defender for the Legal Aid Society.