Chief Judge Toddrick Barnette began his term as chief judge of the Fourth Judicial District on July 1, 2020. The Hennepin Lawyer interviewed him after he was elected in May of that year. We’re checking in with him again 18 months later. In part one of the interview, we talk about how the district has adjusted to the COVID-19 pandemic. In only a few weeks, the court adapted new technology platforms, introduced new rules and procedures, all the while working to keep the court accessible to the public.
This interview was conducted on January 19th via Zoom with attorney Ayah Helmy. It has been edited for length and clarity.
Ayah Helmy: It’s been a minute since we talked last, about a year and half, and a lot has happened in that time. Give us an update. How are things going?
Toddrick Barnette: Here's one of the most surprising things that happened that went unnoticed. I had to do a CLE in August of that year. It was about remote hearings. So, when I looked back, I asked, “Can you tell me how many remote hearings we were doing prior to the pandemic starting? Give me the rough number.”
Not one month was over 50. And then the pandemic hit hard in March [2020] and as we went along, we started getting those orders to do more remote hearings. Today we do anywhere between three to four thousand remote hearings a month.
The reason I say surprisingly is that I really credit our staff for doing that because normally when you have a big change, you have a big resistance from people. We have 63 judges and 12 referees, but we have over 500 employees—and man, did they just pivot so quickly to get us to this point.
I didn't get any complaints—at least any significant complaints. Of course, there was adjustment for judicial officers, employees, and all those other things. We weren't using Zoom like we are today. We were asking ourselves, can we even interpret cases by Zoom? Can we do it simultaneously? How are we going to keep these hearings open to the public? I mention that because all these ideas were coming in, and staff just really said, “Let's see how we can make it work.”
We had things that we tried that failed, and we had a lot of things that we tried that worked. It was just because people kept an open mind and tried to do what's best for the court and not necessarily thinking about themselves. Employees don't get enough credit for in making that happen. That didn't just happen in Hennepin County, it happened all over the branch.
AH: On the remote hearing question, what did it take before the pandemic to get a judge to let a hearing be remote? I can’t imagine what that would have been. I was surprised there was even 50.
TB: What did it take? Hell freezing over maybe.
Here's what's very interesting. We tried to do some things remotely with different court users. I'm going to say that loosely. Think of the individuals who would be at the workhouse, or individuals who would be in prison, or individuals who might be in a locked mental health facility. So, think of those entities that we would work with where, in order for the person to have their court hearing, we had to transport them. And also think about, oh you're in Bemidji in custody, but you have a misdemeanor hearing in Hennepin County, but you're being held in Bemidji on a felony, so no one cared about your misdemeanor case, right? You were not going to appear remotely on that case. Either your lawyer would get you a continued date, and if they couldn't, you would get a bench warrant. That wouldn't even happen remotely. That wasn't even a concept.
What we would do was get a cart with a big monitor on it—a 40 to 50 inch monitor. You would have to bring it into the court room. You had to plug it in. Somehow, we had to send instructions to the facility you were in for them to be able to log into some type of software to get that person to appear visually for these criminal cases because we wouldn't do this by phone. No way. We would have to see the person. It was so cumbersome to get it done. We would go, “It's just easier to have them brought in and do the hearing.”
No one really wanted to do that, but we didn't know any better. Prior to the pandemic, we knew that if we could get the person remotely, we could save some money and time, but it was just a lot to get it done. The technology piece to try and make it work was so difficult. And then so many times you set it up and it didn't work. It wasn't smooth so no one ever wanted to use it, even though you could see there were some benefits to it.
Prior to the pandemic, we knew that if we could get the person remotely, we could save some money and time, but it was just a lot to get it done. The technology piece to try and make it work was so difficult.
When you say what would it take, it would take a lot of patience. It was like a little miracle when it worked. And that's for the visual part. That's the video conferencing part. Remember that when you talk about family and civil court, they always had the ability to appear remote but those were just done over the phone. They didn't appear by video conference most of the time. You had those capabilities, but the criminal side didn't use those because we didn't have the rules to do that. We didn't have the capability to do it that way.
AH: Necessity is the mother of innovation....
TB: And that's why I brought up the staff. We were in a crisis situation and folks responded in such a professional and innovative way to just keep thinking about, how can we make this better? Remember when we went remote, we didn't know whether we were going to use Zoom, Teams, Skype. We knew about Skype because we were using it for our hearing officers. We definitely were using Skype technology for folks for traffic offenses. Those payable offenses where they can see a hearing officer. So, we knew about those things, but we're talking about going remote and not even knowing at first what platform we were going to use. It's not like anyone says, “You're going to have this pandemic in 2020, and you need to prepare for it.”
We do all of these continuity exercises here in our branch. I have a monthly meeting with all of the presiding judges from our five divisions: civil, criminal, family, juvenile, and probate/mental health, along with the court administrators who work under them. At least once a year, we go through a continuity exercise. One of our court administrative deputies, Stacy Carlson comes in and gives us a scenario we have to respond to. We don't know what's going to happen ahead of time.
So, we've gone through this before. All of our continuity plans have always been one courthouse was affected or something went down. So, whether our total computer system went down, and we had to go back to paper. Right, or we have this major leak at government center from floors five down, but everything else is working, what are we going to do? It's those types of things of continuity that we've worked on. We never worked on a pandemic continuity plan. I bring that up to say that we had those lines of communication set up, not knowing how much we would use them.
I think the other thing is just how much Hennepin County has been such a great partner for us. We're tenants in this building. We don't own the building.
In the courtrooms, we can do hand sanitizer, disinfectant wipes, and plexi glass. We can purchase those things and get them in the courtroom, but you've got to think about these public areas. Just coordinating with Hennepin County and them saying, "Don't worry, courts, we're going to make sure you get the signs outside your courtroom, signs inside your courtroom. We'll make sure we have stanchions up for people as they come in.” They have been such a good partner in that way.
AH: That brings us into the other thing I wanted to make sure we were updating on was, how have you seen access for people change? Has it been better, has it been worse, has it been both depending on the situation, what have you seen as far as that?
TB: I'm glad you asked that question because that was the big challenge. How do you keep a courtroom open to the public? How can you do that in this remote environment? Now you start thinking about technology and who has it and who doesn't have the technology to do this, right? How do we keep our courtrooms open? We quickly had to start putting Zoom links on notices.
Still, we have our challenges because you would have to know that a court hearing is happening in order to get the link. That's still a challenge for us where you can't just come to our website and look there and press on that Zoom link. We're not there yet. At least folks have the idea, that if you called and said, I want to attend this hearing that's open to the public, we can get you the Zoom link to get in.
Here are some of the positives and negatives about it. The positive is that I think those who would normally have to travel long distances to be present for their loved ones and family members, friends, and what have you, they can get on that Zoom link and still appear. So that's been great. I think of individuals who might be a party to a case and had to travel. Or you were at the Vikings game and you picked up a public consumption, but you live in Atlanta. Before you might have had to come all the way back for court. You could do that by Zoom now. That's been great. Individuals have been able to appear and not have to take off work or have to worry about daycare. We've seen folks do this from work, from their homes, from their cars. People who normally might have come down on a mass calendar and waited two or three hours, we're in a situation where that time can be reduced.
Here's the challenging part for us: Those without the technology, what can you do about that? We've reached out to a couple of folks in the community to try and put the technology out in the community, so that they can have it and not have to travel to the courthouse. That was a challenge early on because a lot of places were closed. Nonprofits, and other places were just closed. And then if you were open, you're very concerned about spreading the virus, so you didn't want people coming in and out of your building. That's been a challenge for us. But one of the things that we have been able to do is provide iPads at our courthouses so they can attend court remotely, and that's been great. We've seen a rise in participation.
Those who would normally have to travel long distances to be present for their loved ones and family members, friends, and what have you, they can get on that Zoom link and still appear.
I can't remotely take you into custody if you have a warrant. So, it's a little bit easier for you to say, I know I have this warrant, but I'll show up by Zoom. You know what happens? You can talk about it and find a way to resolve it because you are now actually talking to the person and they're not totally avoiding you, so that's been great.
Here's where that capacity piece comes into play. When you think about our massive criminal calendars that we run—especially in the suburbs—we can only do about 40 to 60 percent of those folks coming in for court remotely, then we could do in person. When we went remote, that capacity to handle cases went down.
We're maxing out on what we can do remotely by Zoom, and doing this remotely takes more employees to run than it does to be in person. That's the piece that no one sees. If you think about Zoom and having to manage attorneys wanting to talk to attorneys, getting them in a breakout room, attorneys wanting to talk to their clients, and getting them into a breakout room. Who's appearing remotely? The public has every right to appear remotely, but you have to manage any inappropriate behavior. You don't want to kick people out. You want to be mindful of, how bad is the behavior?
I've said this in a couple of places. We've seen too much skin remotely, and we've seen too much bad behavior remotely. It has at times diminished the integrity of the court process because people are more relaxed and that could be because they are lying in bed having court. That could be because they just woke up to have court. Who thought by Zoom a judge would say, “Hey if you were in a courtroom, you would not be smoking right now.” Because
Most people forget about it! Because you're just more relaxed about the setting.
It's all those things that we're talking about. For the lawyers, being remote and this being new is, the integrity of your witness appearing remotely. Try to make sure they're not feeding your witness information, are they in separate rooms? Are they feeding information by chat? How do you know if your witness isn't viewing something on electronic device? All these things I didn't have to worry about when we were in person that we see.
That’s the challenge. Do you have the device? Do you have wi-fi? If you don't use it that often, getting people up to speed so they can be at least adequate to know how to get to a breakout room, know how to shut off their video, know to mute and unmute. Just all those little things that are important when you are talking about a court process, and sometimes having to ignore something you heard because you know it wasn't the intent of the party for you to hear it because they thought they were muted. It’s just trying to be mindful of those things that, if you were in person, you wouldn't have heard. They would have said it to their attorneys. I think the lawyers have been really good about understanding that wasn't really intended for me to hear because someone didn't say, you're not muted fast enough.
Part II of this interview will appear later this month. Judge Barnette will talk about the effect that the killing of George Floyd had on the court, how they navigated the international spotlight, and how he takes care of his own wellbeing.
Ayah Helmy
ahelmy@brighthealthplan.com
Ms. Helmy works as counsel for Bright Health and teaches at the Mitchell Hamline School of Law and the University of Minnesota. She formerly worked in private practice and as an assistant Ramsey County attorney, advising and litigating on behalf of county agencies.