Omar Rosales: Justice in the Age of Corona – Will Artificial Intelligence Be Employed in Our Legal System?

By: Omar W. Rosales, J.D.

With the rapid outbreak of COVID-19, longtime court observers are watching as the justice system faces serious challenges.

Of concern is that many judges and magistrates, who staff our nation’s courts, are because of their age, prime candidates for infection and death due to Coronavirus.

So, how exactly is the system coping?

New York

New York State has seen the worst COVID-19 outbreak in the United States. Its hard-working judiciary has not been spared from the Coronavirus plague. In the New York Supreme Court System (equivalent to Texas State District Court and Superior Court in California), one justice has died and 15 others are infected with COVID-19.

On April 1, 2020, the New York State Bar Association announced that Brooklyn judge Johnny Lee Baynes died from complications of Coronavirus on March 26, 2020. Judge Baynes contracted COVID-19, then pneumonia, then succumbed from the infection. On Judge Baynes, the Office of Court Administration for the Second Division said:

“He was a long-standing, well-liked judge then justice,” Lucian Chalfen, spokesman for the Office of Court Administration, said in a statement. “He will be missed by all his colleagues both judicial and non-judicial.” Baynes was elected in 2011 to a 14-year term of the Kings County Supreme Court in the Second Judicial District located in Brooklyn. He presided over civil court. Chalfen said 15 judges in New York have tested positive for COVID-19.

The first Federal Judge died of coronavirus on April 1, 2020 in New York. Retired Judge Kevin Thomas Duffy, who spent 44 years on the bench as a U.S. District judge in the Southern District of New York, died April 1 from coronavirus. Duffy was nominated by President Richard Nixon in 1972 to the federal bench, making him the youngest member of the federal judiciary at the time. He presided over several famous organized crime and terrorism cases including the 1993 terrorist bombing of the World Trade Center.

Texas

The effects of COVID-19 are also manifesting in the Lone Star State as the coronavirus has shut down multiple Federal Courthouses. In the Southern District of Texas, Houston Division, it was announced that a staffer tested positive for COVID-19, thus forcing the District Clerk’s Office to shut down the courthouse completely.

And the health of the Federal Judges is a concern, because most jurists work long hours, don’t have excess time for exercise, and are usually above 50. A Federal courthouse is the perfect breeding ground for Coronavirus. How exactly do you clean a courtroom? Most of the courts have soaring ceilings, wood paneling, carpet, granite, marble. How do you clean all of these surfaces? And how do you know the surface is really disinfected? Are workers supposed to soak the courtroom in bleach solution?

California

The Federal Courts in the Golden State are also experiencing a tough stretch. In the Northern District of California, where most lawsuits involving tech companies are based, the District Clerk’s Office has closed all of the Divisions’ courthouses. The offices and courthouses in Oakland, San Jose, and Eureka are closed. The only courthouse to remain open in the entire Northern District is the San Francisco court, located in the newly-completed Phillip Burton Federal Building.

Advancements in Technology

We are also seeing courts shift to a digital mindset. That is, courts are now relying more on videoconferencing, Zoom, telephone calls, and computers to move the docket. In aggregate, we are seeing the COVID-19 situation push technology and use of technology ahead about five years.

Dockets are being processed more quickly, fewer oral arguments are made, and cases are moving forward. Arraignments are being done by video, as are some guilty pleas. The oral arguments that take hours to prepare for, are done in less than 15 minutes, and are usually not as important as the briefs (arguments submitted on paper, pdf, MS Word), are no longer necessary.

So, in this period of increased efficiency due to unimaginable obstacles, how do go back to ‘normal’ in the aftermath of Coronavirus?

The bottom line is that forced adoption of technology will push courts forward in unknown ways. Necessity is the impetus for technology, invention, and innovation. And the next question is, will Courts adopt AI or Artificial Intelligence? Will our society ever be ready for a digital judge or law clerk? Some companies are already selling AI-drafted motions, tailored to an attorney’s input. But, is it ethical for a computer to decide someone’s guilt or innocence? Are we elevating the programmers who build the algorithms to judges?

And what does it mean to be a judge? Does it require heartbeat? Will a digital heart suffice? In the Hebrew bible, in the Book of Judges, the ‘Judges’ were the leaders of the tribes. Will humanity ever cede control to machines? And what will that justice look like?

Does a sentient AI have rights? Constitutional rights? Does a ‘jury of his peers’ mean that an AI can only be adjudicated by a panel of other AIs? All of these are interesting questions.

It is unfortunate that it takes a national disaster and thousands of deaths, for us to ponder these questions.

Correspondent