Our Courts: The Sci-Fi Horror Show

These days, when I walk into the courthouse, after the intense security screening that includes forbidding public access, I am reminded of a Sci Fi horror show. I don’t recognize my home ground, my territory, my place of worship of Lady Justice. It is all gone. I cannot see faces because everyone wears a mask. I cannot smell, voices are muffled, and people are not talking to one another, but sitting on masking tape in the shape of a large X, six feet apart.

In less than four months, between March 23rd and mid-July of the cursed year 2020, criminal trials have become non-public—the public is not allowed in the courthouse unless you are a party on calendar or lawyer—in violation of the Sixth Amendment to the Constitution of the United States of America.

All jurors wear masks and all witnesses wear masks—almost all, with some courts offering witnesses behind glass, their voices muffled and bouncing off the glass which reflects light obscuring their image, and the jurors do not sit in the jury box, but in the public section, six feet apart, all the way to the back of the courtroom, the farthest from the witness stand. In one courthouse in my county, jury trials are in a courtroom that has no jury box.

Do you remember the cowboy movies where the guys who robbed the stagecoaches always wore bandannas over their faces so no one would know who they were? Imagine being on trial and never seeing the faces of your accusers and those who will ultimately judge you.

The right to a speedy and public trial by a jury of one’s peers has disappeared in less than four months. All these changes to our justice system that has been the greatest criminal justice system in the world for 244 years were carefully crafted while we were living in isolated fear of the corona virus, or was that part of the pandemic plan? It seems somewhat like the PATRIOT Act, already written and waiting for the right time.

Someone told me this was “the new normal.”

“Never,” I replied.

Then, a few days ago, it got worse. It was 8:05 a.m. I went to the entry to the courthouse and was stopped by a uniformed deputy. Extending his arm as though blocking me, he said with great authority and force: “Wait!” Looking away from me, he continued speaking with a civilian who was obviously confused by the table with the two women who were trying to find her on calendar and taking her temperature. If she were not on calendar, she would be forbidden entry.

My client had already been to that table, and now stood behind me. He held a slip of paper that read: Department __, 10:30. That was two and a half hours away. I am always early, and the wait did not work for me. I got assertive and told the deputy and the ladies at the table that I was going in with my client, we were on calendar. The ladies said okay, and the deputy tensed, but did not speak. I felt his desire to engage me, but also his uncertainty. I’ve been around, and I was in no mood to have some rookie tell me what to do in a courthouse. I’m an Officer of the Court, for God’s sake—or so I think.

I wonder about the plan, and how it unfolded in such a short time. 244 years disappeared in less than four months. How did they do it? My dear friend and tattoo artist asked me:

“Do you think anyone imagined they could do it so quickly?”

Yesterday I told the Judge that I was waiting for a jury trial: “You know, like the ones we’ve done for two hundred and forty-four years.”

He wore a sad smile and said: “Good luck with that.”

I like that man, but I saw he meant it, and felt a deep sadness was residing in his soul, maybe even fear for what he knew, and that I obviously had not accepted. He was a relatively new Judge, previously a defense lawyer. He knew that I was facing something I did not understand, not if I expected to return to real jury trials.

The horror show is just beginning, and I’m too deeply involved in the ideas of the past, those short months ago that seem gone forever, and I cannot make the change, the transition from what has always been, to this thing they created and are daily changing for the worse.

Most of my clients waiting for trial are in custody. A basic right guaranteed by the Sixth Amendment is the right to a “speedy and public” trial. The Chief Justice of the Supreme Court of California has already issued orders that have extended their speedy trial rights a couple of times. Worse, there is absolutely no recognition that the right to a public trial is being denied. Who cares if the public cannot come in and let their presence be known in a court of law? The Founders knew that we needed to be able to be seen and felt in the courtroom, our eyes upon the judges and prosecutors and other lawyers, gauging whether they are performing honorably, knowing that dishonorable conduct is, sadly, a part of human nature that must be monitored. We all know the truth of this concept and see it in the division of powers—the checks and balances—in our Constitution. We cannot trust people with power and therefore demand that we be able to watch our governing process, including the courts. Some have suggested that they will set up YouTube viewing of court proceedings. None have acknowledged that all the witnesses will be allowed to view the proceeding prior to their testimony, another basic rule gone.

I asked one particularly stern deputy: “What is the most important thing in a criminal court?”

With a great and furious voice, he bellowed: “Public safety!”

I paused before I returned his answer with even greater force:

“No! It is to provide the Defendant with a fair trial!”

His face changed, and in his eyes I saw a hesitant glimmer of a memory no longer connected to the main frame, but somehow momentarily retrieved for a glimpse of that which was—then the light faded and died. He looked away, sullen, like a child who had been told, but would never submit to the truth of old. It was a new world, and he had his orders. I was no longer relevant.

Waiting for this madness to end became closer to hopeless yesterday when the Judge as much as told me, with his sad eyes and demeanor, that I was a dinosaur if I had expectations of a return to the world I have known, which I intimately shared and helped perpetuate, one where I knew what to do and how to do it, usually with tremendous success, but has become a relic, the quickly forgotten past that would likely never return.

I cannot be a voice crying in the wilderness, yet I cannot succumb to this thing they call a trial today. My clients are entitled to the real deal, not the horror show.

Gary Wenkle Smith is a trial lawyer, practicing law in Southern California for the past 40-years. He has tried over 200 jury trials, including over 100 murder trials and other serious felonies. Mr. Smith has two published novels, The Last Midnight, and Inside the Lie, as well as Long Night of the Soul, a book of poetry, verse and other writings. He has also published This Side of Too Late, which is a compilation of articles and poems on the state of America since September 11, 2001. His latest publication is Deadly Night Shadows, a true story. He is also a painter. He is an active member of the 12-Step community. He has trained for the past twenty years at the Trial Lawyer’s College with the world-famous trial lawyer, Gerry Spence, and dozens of the best trial lawyers in America. Read other articles by Gary.