At least two lawyers have had to self-quarantine after meeting with clients in the prisons who later tested positive.
If a criminal defense lawyer in Philadelphia wants to have a remote meeting with an incarcerated defendant, they only have one option: sign up to use the single terminal on the 11th floor of the Juanita Stout Criminal Justice Center, which is only available for private attorneys from 11 a.m. to 2 p.m. on Wednesdays.
According to several sources, as of late last week, that terminal was booked up through July 15.
Without remote access to incarcerated defendants attorneys must meet their clients in person at the prisons, which have seen positive COVID-19 cases since late March. Although prison staff say the visiting rooms are cleaned regularly, the rooms are not ventilated, or large enough for lawyers to maintain the recommended six-feet separation from their clients, leaving many attorneys fearful and frustrated.
“I feel pretty disrespected right now,” a defense attorney in her second trimester of pregnancy, who asked The Legal not to use her name, said. “I’ve given everything I can to the system. I’ve gotten sick, I’ve gotten the flu, I’ve picked up every germ you could pick up at the CJC. … Now I’m saying I’m particularly vulnerable.”
The attorney said her doctor had given her a note advising judges and staff that she must be able to use personal protective equipment, and should be allowed to handle cases electronically whenever possible. But in the current situation, the note, she said, means little.
“I don’t need to risk my life every day to be a good lawyer,” she added.
Over the past two months, access to prisons has been very limited. With cramped and often unsanitary conditions, prisons are at a high risk for spreading the infection, and many populations have seen large outbreaks in their populations. But, while court proceedings have largely been put on hold since mid-March, those restrictions are beginning to loosen, and attorneys are now finding themselves in an increasingly difficult spot—unless they meet with clients, the cases can’t move forward.
Some groups have taken steps toward addressing the issue, but attorneys said it is not enough.
Recently, the Defender Association of Philadelphia has provided the prisons with a handful of cellphones for inmates with private defense counsel to use. However, attorneys have said reception can be spotty, and they are often concerned a social worker or fellow inmates could be within earshot.
According to attorneys, setting up a videoconferencing system is essential because it would help ensure the remote communications are confidential. Having attorneys and clients be able to see each other also helps build trust between them, it allows for attorneys to show discovery to their clients and, more generally, it provides for enhanced communications in discussions that are key to guiding the lawyers’ next steps and investigations, attorneys said.
In several counties surrounding Philadelphia, attorneys say they’ve been able to access their clients through videoconferencing, although in some cases, physical access to prisons has been extremely limited. But in Philadelphia, even though attorneys have the option of visiting their clients in jail, without expanded video, other problems can arise given the social distancing restrictions.
One specific problem is when a client needs an interpreter.
“I’ve got a client who speaks Spanish and needs an interpreter, but they don’t have the ability to bring an interpreter up to the prison,” defense lawyer Michael Diamondstein said. “So, they don’t have any rights anymore?”
Those concerns Diamondstein has come on top of worries about his health if he has to begin visiting clients in jail.
“I have three small children, and a wife. I have a very large client base,” he said. “I feel uncomfortable subjecting my family to COVID. I feel uncomfortable with the fact that, if I get ill, I won’t be able to service my clients.”
Ideally, attorneys would be able to have remote access from their homes, they said, but expanded access from the courthouse would be helpful. Lawyers suggested allowing inmates some access to smartphones, computers or iPads could help alleviate the problems, with some lawyers saying they’ve offered to help foot the costs for any necessary hardware.
“Anything that it’s possible to Zoom or GoToMeeting on,” Kathryn Cacciamani said. “And if they want to lock it up so the defendant can’t touch it, they can. There are steps you could do if you’re willing to step outside the box a little.”
Adding to the frustrations, attorneys say the main stakeholders—court leadership, the Department of Prisons and the Managing Director’s Office—have all largely deflected addressing the issue, or have provided little information.
When it comes to the courts, Philadelphia Court of Common Pleas Judge Leon Tucker, supervising judge of the criminal division, has made it clear he believes the court only has a limited role to play, and the defense bar must reach out to leaders at the Department of Prisons and the Managing Director’s Office to get a wider system in place.
During a meeting of the Philadelphia Bar Association’s Criminal Justice Section on May 28, Tucker repeatedly told attorneys watching the Zoom-streamed event that the power to address the situation lay with the executive branch, not the courts.
“We’re willing to do whatever we can do to further it, which we have in terms of availing the Stout Center for interviews and that type of thing, but again, there’s only so much we can do, since this is mainly, well not mainly, but strictly, an issue between the bar and the prisons,” Tucker said during the meeting.
The bar’s frustrations, however, were clear during the meeting. At one point, Thomas Innes of the director of prison services at the Philadelphia Defender Association, who is also head of the criminal justice section, said that, so far, at least two lawyers have had to self-quarantine after meeting with clients in the prisons who later tested positive.
“I’m not making that up, that’s a fact,” Innes said.
He further urged Tucker to use the court as a “bully pulpit” and said the stakeholders should open access to the single terminal in the CJC during the weekends.
According to several sources, numerous stakeholders, including attorneys, the Managing Director’s Office and court leadership, are expected to meet Wednesday to address the issue.
As restrictions related to the coronavirus have begun to loosen across the state, Pennsylvania courts are beginning to open back up again, and, in Philadelphia, the plan is to hold status conferences in all criminal cases starting in June. However, several attorneys said that, unless the remote access problem gets addressed, the situation is going to exacerbate the city’s growing backlog of cases, and could rear up again if there is a second wave of infection.
“There simply cannot be a return to ‘normalcy’ in the Philadelphia justice system if we, as lawyers, don’t have sufficient access to our clients who are in custody,” Innes said in an email Tuesday. “Unless we can safely meet with, and thereby adequately represent, our incarcerated clients, the system will continue to face bottlenecks and delays that will all but grind the system to a halt. That should be everyone’s concern.”
In an emailed statement, a spokesman for the Managing Director’s Office said the Department of Prisons is working to address the issue.
“While we currently do not have the capacity to provide video conferencing independent of the FJD, PDP is exploring additional confidential video conferencing services for legal counsel in addition to those currently offered through the FJD,” spokesman Dave Kinchen said. “The PDP is working to expand technological infrastructure in order to make independent video conferencing possible. ”
A court spokesman declined to comment for the story.