The era of Zoom has opened up new horizons as courts rapidly modernize and attorneys scramble to define the remote working model. But it’s also opened up some new professional and ethical challenges from “wi-fi indictments” to “no shirt, no shoes, no justice.” The latest ethical conundrum comes from Missouri, where a judge used the mute button on an attorney and now he says she’s violated the defendant’s right to counsel and due process.
Attorney Rob Eggert claims that Jefferson Circuit Judge Audra Ecklerle muted him “eight times during a 48-minute hearing, including once for five minutes and another time for seven minutes.” This selective muting had enhanced significance because Judge Ecklerle had allowed the prosecutor to attend the hearing in person but kept Eggert relegated to videoconferencing.
For her part, Judge Ecklerle says that Eggert was annoying and obstructionist and:
“Counsel must behave respectfully at all time, and those rules and etiquette do not change merely because the hearing occurred via telephone versus in person,” she said. “The court quite properly redirected counsel through the use of the mute button, as opposed to trying to yell over defense counsel’s screaming.”
Understanding overlapping Zoom conversations can get tricky so it wouldn’t seem to be a problem to use the mute button to enforce speaking times, giving each side an equal and uninterrupted opportunity to lay out their arguments. It would prevent both sides from lodging objections in real time, though without a jury the impact of that denial is negligible. Often the most obstreperous attorneys can offer clear and calm arguments when forced to wait their turn. Yet the petition doesn’t paint the picture of an even-handed use of the mute power.
There’s also no support for the contention that Eggert was “screaming” according to the Courier-Journal reporters who reviewed the tape. In the judge’s defense, who knows whether past behavior might have weighed on her decision-making. That said, Eggert’s petition suggests that Judge Ecklerle has a history of seeing improprieties that aren’t really there. He cites a contempt order she issued last year that sent the mother of a defendant to jail for 30 days claiming that she had “unleashed expletive-laded, abusive language to the court” and “incited riotous behavior from spectators in the courtroom and created a security issue.” The video of the event reveals the woman merely stood up and asked “How do you sleep at night?” before leaving the room. An appellate judge ordered the woman released upon seeing the video.
This all seems to add up to a judicial screw-up.
But putting aside Judge Ecklerle’s handling of this specific situation, the more interesting question is where judges draw the line. How much can a judge manipulate the technological levers of power in the interest of efficiency without crossing the line into prejudicing the whole hearing?
This isn’t likely to be the last challenge to a judge’s handling of a videoconference before this pandemic is over.