UNITED STATES DISTRICT COURT

Court rules

Ask Donna

What actually matters in this document.

Text

WESTERN DISTRICT OF WASHINGTON

In Re:

REMOTE ACCESS TO COURT

OPERATIONS UNDER THE EXIGENT

CIRCUMSTANCES CREATED BY

COVID-19 AND RELATED

CORONAVIRUS

GENERAL ORDER NO. 03-20

This General Order is being issued in response to the developing outbreak of Coronavirus

Disease 2019 (COVID-19) and in conjunction with the Court’s General Orders of March 6, 2020,

and March 17, 2020, ordering, among other things, the closing of the Seattle and Tacoma

courthouses for 30 days and ordering that “all criminal initial appearances and detention hearings

will be conducted via video/telephone conference with the defendant’s permission, unless

directed otherwise by the Court.” General Order 02-20. The Court incorporates its prior findings

regarding COVID-19 and the current state of emergency declarations and guidelines as set forth

in its prior General Orders.

This General Order provides the protocol regarding how the Court will conduct criminal

proceedings via video/telephone conferencing in a manner that protects the safety and health of

all those involved in the proceedings, while preserving the legal rights of the accused and

permitting public access.

-1

The Court recognizes that the COVID-19 crisis is an evolving one and therefore

establishes three levels of video/telephone conferencing with the goal of providing the highest

level of connectivity for each case while recognizing the need to adopt more remote access as

the situation develops. Constitutional due process requires that a defendant be present “to the

extent that a fair and just hearing would be thwarted by his absence[.]” Kentucky v. Stincer, 482

U.S. 730, 745 (1987). The Court hereby finds that during this health emergency, when in-person

proceedings would put the health of all participants at risk, including the defendant’s, a

defendant’s due process rights can best be preserved by providing the highest level of

connectivity that is available, while protecting the health and safety of all participants.

Accordingly, the Court ORDERS, effective immediately, that necessary criminal

proceedings, including, but not limited to, initial appearances, detention hearings, and bond

revocation hearings will be conducted in the following manner, as deemed appropriate by the

presiding judge, or as further directed by the undersigned:

1. Level One access is considered an In-Court hearing wherein all parties are in the same

courtroom. Level One access is not feasible given the guidance on COVID-19.

Accordingly, the Court sets forth the following three available levels of remote access.

2. Level Two access is an In-Court hearing with only the presiding Judge and necessary

court staff in one courtroom and the defendant and the United States Marshals in a

separate courtroom, connected by video conferencing. The Assistant United States

Attorney (AUSA), the Federal Public Defender (FPD), Criminal Justice Act (CJA)

attorney, retained defense counsel, the United States Probation and Pretrial Officers,

Court Certified Interpreters, witnesses, victims, and the In-Court Deputy (hereinafter

collectively referred to as “Participants”) will be given the option to appear via

-2

videoconferencing, via telephone using the Court’s conference bridge line, or appearing

in person in the courtroom with the defendant or with the presiding judge so long as safe

distancing is maintained. Instructions for videoconferencing will be provided by the

Court if necessary.

3. Level Three access is an entirely remote proceeding wherein no person will be in the

Courtroom and all parties will appear remotely. At a minimum, the Judge and the

Defendant will appear via video conferencing. The Participants will be given the option

to appear via videoconferencing or via telephone using the Court’s conference bridge

line.

4. Level Four access is a telephonic proceeding wherein no person will be in the Courtroom,

there is no video conferencing available, and all Participants will appear by telephone

using the Court’s conference bridge line. Exhibits and other documents will be exchanged

between the Court, parties and counsel via e-mail.

For Levels Two through Four above, the Court will assist defense counsel and the

interpreter, when necessary, in maintaining a separate line for confidential

communications with the client.

6. Consistent with General Order 02-20, the Seattle and Tacoma Courthouses will remain

closed to the public, with limited exceptions. For Levels Two through Four above, the

public will be permitted access to the hearing using the Court’s teleconference bridge

line, as available. An announcement regarding the public’s right of access and dialing

instructions will be posted on the Court’s website. Members of the public and media are

strictly prohibited from recording or broadcasting any hearing, in whole or in part, in any

fashion.

-3

7. All hearings conducted pursuant this Order will be recorded by reliable means.

8. In an effort to limit any exposure to COVID-19 and protect the health and safety of

everyone involved in the proceeding, whether it is Level Two, Three, or Four, the Court

hereby orders that all documents and signatures required from any party including, but

not limited to, financial affidavits, consents to waive preliminary hearing, Pretrial and

Probation reports, and appearance bonds/orders for release shall be performed

electronically with the [s/name] format. For the defendant, the defense counsel may sign

on behalf of the defendant, after receiving consent, and file the document electronically.

Initial Appearances/Detention Hearings: All parties will attempt to address the issue

of detention at the initial appearance, when practicable. A separate hearing will only be ordered

if the good cause standard set forth in 18 U.S.C. § 3142(f)(2) has been met. The factors to be

considered at any detention hearing remain as set forth in 18 U.S.C. § 3142(g). These factors

include, but are not limited to, “safety of any other person and the community” as well as “the

history and characteristics of the person, including . . . the person’s physical and mental

condition.” The presiding judge will give specific consideration of these factors in light of the

existing health emergency. Pretrial and Probation reports will be circulated to the parties via

email and will be kept confidential, as per the usual and customary procedures.

Preliminary Hearings: Unless waived by the defendant pursuant to Rule 5.1(a)(1) all

preliminary hearings are continued pursuant to General Order 02-20. The Court will set status

conferences 30-days out at each initial appearance to determine if a preliminary hearing can be

set. When requested, the presiding judge may set any preliminary hearing in accordance with

above emergency procedures.

-4

Motions to Reopen Detention Hearings: The Court will attempt to address motions to

reopen detention hearings on an expedited basis for reasons associated with the ongoing health

emergency. Accordingly, the Court ORDERS as follows:

1. The FPD, CJA counsel, or retained counsel should identify individuals who are currently

detained but should be reconsidered in light of the ongoing health emergency and who do

not pose a current and substantial safety risk to the community or flight risk.

2. The FPD, CJA counsel, or retained counsel will notify the AUSA and the Probation and

Pretrial Services officer assigned to the matter of the designation and schedule a meet and

confer conference via telephone to determine if the parties can agree on a stipulation for

release.

3. If the parties can agree to recommend release, they shall file an emergency joint motion

with the Court, with a copy to Probation and Pretrial Services, setting forth the stipulation

and any agreement on bond conditions. The joint motion shall be noted for the day it is

filed. When practicable, the Court will consult with Probation and Pretrial Services as to

whether to release the defendant and any conditions of release if granted and will either

rule on the motion without a hearing or set a hearing as soon as practicable.

4. If the parties are unable to reach agreement on release, then the FPD, CJA counsel, or

retained counsel will file an emergency motion with the Court, provide a copy the

Probation and Pretrial Services officer, and note the motion for the following day. The

AUSA will file any opposition to the motion by the following day or advise the Court of

the reason why additional time is required for a response. Probation and Pretrial Services

will attempt to provide the Court with a supplemental report outlining its

-5

recommendations for conditions if release granted, and if the Court deems necessary, the

Court will set a hearing as soon as practicable using the procedures outlined in this Order.

The Court will continue, vacate, or amend this General Order no later than April 15, 2020.

Dated this 25th day of March, 2020.

RICARDO S. MARTINEZ

CHIEF UNITED STATES DISTRICT JUDGE

-6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.