photo by: File screenshot

Shown clockwise from top left in this file screenshot from first appearances on Friday, May 22, 2020, are the courtroom in the Douglas County Jail, Douglas County District Court Judge Sally Pokorny and court reporter Mary Kay Howe. The Douglas County Jail has just one system available for hearings held via videoconference. (This screenshot was taken with permission from the court. Any recordings or screenshots without prior approval from a judge are forbidden.)

Scheduling a court hearing in a criminal case long has been a complicated logistical exercise. There’s the judge’s schedule, the prosecutor’s case load, the availability of the defense attorney, witnesses to subpoena and a host of other issues.

Now, in the pandemic age, there’s another question factoring into such discussions: Does anyone have a camera?

At the Douglas County Jail, where inmates now frequently appear for hearings via teleconference, the answer is often no. The jail has only one camera system for court hearings, and it is often in use as demand is high for remote hearings as people try to limit their exposure to COVID-19.

In addition, the pandemic situation is making it difficult for defense attorneys to have safe and confidential meetings with their clients who are housed in the jail, multiple people in the local criminal justice system said.

One at a time

There’s a courtroom inside the Douglas County Jail, and it’s wired with a Polycom system that allows inmates to participate in court hearings via videoconferencing. That’s the way the court has held first appearance hearings for inmates for years, but its use expanded rapidly as the concern for COVID-19 grew.

But there is a problem. The jail only has one such system, Jenn Hethcoat, public information officer for the Douglas County Sheriff’s Office, said via email this week.

Douglas County District Court dockets occupy blocks of time for the local jail’s sole videoconferencing option on Tuesday mornings and Wednesday afternoons. It’s also used for first appearances at 3 p.m. each weekday, which would force an interruption if any lengthier afternoon hearings were scheduled that way. On top of that, there are also municipal court hearings.

The county’s neighboring adult detention centers to the east and west both have the capacity to hold at least two court hearings at once, according to Deputy Claire Canaan, public information officer for the Johnson County Sheriff’s Office, and Brian Cole, director of the Shawnee County Department of Corrections.

Canaan said Johnson County also uses a Polycom system. Cole said Shawnee County has one Polycom system wired with the Shawnee County District Court, but they have also implemented iPads to expand the capacity for hearings.

In order to further reduce the risk of spread of illness, Cole said his facility is hoping to have tablets for each inmate by Jan. 1, and “virtual courtrooms” set up in each area of the facility for confidentiality purposes. He’s also working with the Kansas Department of Corrections to reduce the number of transports necessary and to allow inmates in state prisons to connect to court hearings virtually. That adult detention center is larger, though, with more than 2 1/2 times the number of beds the Douglas County Jail has.

The Douglas County Commission in September voted to rescind a plan long in the works to expand the jail after the inmate population dropped amid the coronavirus pandemic. However, with the canceled expansion went plans for infrastructure in each housing unit that could have been utilized for videoconference hearings, according to Hethcoat’s email.

The makeshift approach of an iPad in a conference room isn’t a possibility, either: “In our current facility there is simply no space available outside of the courtroom to utilize for these hearings,” Hethcoat said.

In-person proceedings are an option for any defendant who doesn’t want to waive their right to a personal appearance, though those hearings can present their own complications. Along with the potential health issues that virtual hearings aim to avoid, inmates who leave the Douglas County Jail for any reason quarantine for 72 hours upon their return, Hethcoat said.

Attorney-client meetings

As the dockets have gone almost entirely virtual, attorneys don’t have a chance to meet with clients before and after hearings at the downtown Judicial and Law Enforcement Center. In addition, some attorneys have raised concerns about meeting with — or, in other cases, being unable to meet with — their clients in the Douglas County Jail.

Hethcoat told the Journal-World that at the beginning of the pandemic, when the jail was closed to outside visitors, staff asked attorneys to hold their client meetings in the public visitation space with plexiglass dividers to minimize potential inmate exposure to the virus.

“Concerns were voiced that this was not a private enough option, after hearing from several attorneys we re-opened the regular attorney/client visitation space in the housing units,” she said.

The topic came up this week when Douglas County District Attorney Charles Branson asked during the Criminal Justice Coordinating Council meeting Wednesday whether defense attorneys are able to meet with their clients confidentially to discuss plea offers and such.

Douglas County Sheriff’s Office Capt. Gary Bunting responded that “after a number of complaints, we reverted back” to the way visitations were held before COVID-19 hit.

“Right now, attorneys — as long as they’re wearing appropriate face masks and practicing social distancing — they can meet as they always did in attorney visitation rooms face-to-face,” Bunting told the CJCC, “or if they don’t feel comfortable doing that, they can still utilize the general visitation area through the glass.”

In the general visitation areas, attorneys can have conversations with their clients via handheld phones through glass. But anybody else around, including any other inmates, can overhear those conversations. Some may attempt to leverage the information they hear for their own benefit.

In addition, defense attorney Cooper Overstreet said those phones were pre-programmed with a message that said the call was being recorded. Though jail staff said — and Hethcoat reiterated to the Journal-World — that the recording mechanism was disabled before attorneys started meeting with clients that way, Overstreet said it still made his clients hesitant to talk over the phones.

Hethcoat said that after reopening the original meeting rooms, there were attorneys who voiced health and safety concerns and wanted to continue utilizing the public visitation area, so jail staff continued to make the public space available as well.

Still, for defense attorney Angela Keck, the options seem to be either to meet in the public setting that isn’t confidential, or feel unsafe in the visitation rooms. She told the Journal-World that she hasn’t tried to visit with clients at the jail after hearing from other attorneys that they can’t get a safe and confidential client meeting.

It’s also complicated reviewing evidence, Keck said.

“It’s just really hard,” she said. “A lot of the discovery is video — I can’t watch a video with my clients anymore, so that’s very difficult.”

On the other hand, Overstreet said the Douglas County Jail’s visitation conditions are better than others he’s seen. For instance, there are meeting rooms in each pod of the jail as opposed to other facilities where it can be difficult to schedule a time to go visit because they don’t have enough meeting spaces, he said.

For attorneys who are at a high risk of contracting or suffering worse symptoms should they contract COVID-19, the shared spaces present additional concerns. Phone calls are an option, and they’re free and privileged for inmates speaking with their attorneys, but there may still be others around who can overhear the inmate’s side of the conversation.

The Journal-World reached out to several other defense attorneys, as well as Chief Judge James McCabria seeking the Douglas County District Court judges’ perspectives on these issues, but did not receive responses for this article.

Related coverage: COVID-19 + Douglas County Jail

• Oct. 13, 2020: Inmate who was returned to Douglas County Jail from treatment facility after developing COVID-19 symptoms tests positive

• Sept. 21, 2020: 2 staff members, 1 inmate at Douglas County Jail test positive for COVID-19

• Sept. 2, 2020: Douglas County Sheriff’s Office: Inmate tests positive for COVID-19; 220 other tests are negative

• Aug. 24, 2020: Two staff members at Douglas County Jail test positive for COVID-19

• July 29, 2020: Douglas County Sheriff’s Office captain says county jail has reached its functional capacity amid COVID-19

• July 24, 2020: Douglas County Jail: Still no COVID-19 cases

• May 10, 2020: Is the Douglas County Jail’s inmate population decrease amid COVID-19 sustainable? Law enforcement isn’t optimistic

• April 8, 2020: Douglas County Sheriff’s Office serving warrants only for public safety risks

• April 7, 2020: Douglas County district attorney: 14 inmates released from jail amid COVID-19; some community service hours waived in diversion cases

• March 27, 2020: At Douglas County Jail, female inmates still sharing cells; total population has dropped

• March 24, 2020: Douglas County Jail suspends visitation amid ‘stay at home’ order

• March 23, 2020: Douglas County juvenile detention center has no plan to release incarcerated youths; activists make national push

• March 19, 2020: What you need to know: Lawrence-area law enforcement shares latest updates amid COVID-19 pandemic

• March 18, 2020: Douglas County Jail visitations continue; would-be inmate sent away at intake to self-quarantine

• March 17, 2020: Douglas County District Court delays most hearings, jury trials amid COVID-19 concerns

• March 13, 2020: Some Douglas County Jail inmates could be released on furloughs if sick or at risk of COVID-19

• March 12, 2020: Douglas County Sheriff’s Office: Jail can accommodate quarantine, if needed