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With infection rates in decline, FACDL chief still touts the benefits of remote court proceedings

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Jude Faccidomo

Jude Faccidomo

The head of the Florida Association of Criminal Defense Lawyers is urging judges not to forget the success of remote court proceedings now that COVID-19 infection rates are declining.

“It is both likely and welcome that as the numbers of the virus decrease, we will return to more normalcy,” said FACDL President Jude Faccidomo. “That said, it would be tragic to not retain something of value from this pandemic.”

The founding partner of Ratzan & Faccidomo called the use of Zoom for non-essential, non-evidentiary hearings the “future of the practice.”

According to an analysis of the latest U.S. Centers for Disease Control and Prevention figures, as of October 29, Florida had the lowest COVID-19 infections per capita than any other state. Nationally, infections dropped 20% over the previous two weeks.

In July, as spread of the Delta variant threatened to halt the gradual reopening of courthouses after vaccines became widely available, FACDL issued a letter to the Supreme Court and all chief judges urging greater use of remote proceedings to protect health and safety.

In the latest edition of FACDL’s quarterly newsletter, “The Defender,” Faccidomo reiterated the plea, and also urged chief judges to employ remote proceedings in a “post-pandemic world.”

“Perhaps the most compelling argument in favor of more expansive use of remote technology is that it allows for a more efficient and effective use of time,” he said.

Eliminating time spent traveling to and from, and waiting for, in-person status conferences, motions to compel, and other non-essential matters would save money and eliminate a “coverage culture” that hinders case management and “effective representation,” Faccidomo argues.

Remote proceedings provide easier court access to crime victims, witnesses, and defendants who lack transportation or who can’t afford time away from work, Faccidomo notes.

Judges are mistaken if they believe defense attorneys and prosecutors still duck into hallways to resolve cases at the last minute, Faccidomo said. Prosecutors carry far too heavy caseloads and require far too many levels of oversight and approval, he argues.

“Legitimate pleas result from motion practice, depositions, mitigation and/or frequent negotiation with the assigned assistant state attorney,” Faccidomo writes.

With courthouses open, ill-prepared lawyers can no longer leverage remote proceedings to delay the progress of a case, Faccidomo said.

“We should never govern ourselves by the lowest common denominator,” he said. “Nor should we penalize those who are working at their highest capacity simply to police those who seek to take advantage.”

In the article, Faccidomo called most arguments against the use of remote proceedings “fear of change.”

“The old manner of handling non-essential hearings strained the system and detracted from its real function, which is to dispense justice,” he wrote. “Remote proceedings protect time, promote efficiency, and will undoubtedly lead to faster and more effective resolution of criminal cases.”

Faccidomo, who serves on the Rules of General Practice and Judicial Administration Committee, and recently served on the Criminal Procedure Rules Committee, supports a Supreme Court COVID-19 Workgroup rules petition that is designed to promote greater use of remote proceedings.

Centering on a proposed rewrite to Florida Rule of General Practice and Judicial Administration 2.530 (Communications Technology), the package is also drawn to six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure.

The petition generated more than 100 comments and Chief Justice Charles Canady has given Ninth Circuit Chief Judge Lisa T. Munyon, the Workgroup chair, until November 19 to file the panel’s response.

“The only way we will salvage the value of Zoom and create uniformity throughout the circuits is if it is codified by rule,” Faccidomo said. “The Workgroup has before it a well thought out and practical rule to govern the use of remote technology for criminal practice. We urge them to consider it and recommend its implementation to the court.”

 

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