DETROIT – There have been endless debates about when and how schools, and parks and bars should reopen in Michigan.
But what about the courts?
“Trials are going to be the hardest of all,” said Michigan Supreme Court Chief Justice Bridget Mary McCormack, whose job, in addition to helping decide the state’s most important cases, includes administrative oversight of all the courts in the state.
But her state has an advantage in that “Michigan is far and away the national leader in moving our court operations on line,” for one big reason. Before the pandemic happened “we, as part of our administrative functions, purchased Zoom licenses for all the courts in the state,” not because she saw this coming, but because “this is a big state, and we thought we ought to start doing things in a more convenient way to both lawyers and litigants.”
That’s a lot of courtrooms: There are 242 trial judges in Michigan, who last year processed a total of nearly three million cases.
The judicial system isn’t often eager to embrace change, and she admitted that “not many judges were using (Zoom)” before COVID-19 hit, but the high court had a support system in place when it did.
And now all over the state judges are doing hearings on the Zoom platform, and live-streaming them to YouTube, she said.
“So you can watch what’s happening in the courts on your laptop or smartphone,” she added.
However, the courts cannot compel any defendant accused in a criminal case to have a remote trial; she and the other six Michigan Supreme Court justices ruled unanimously last month that this would violate the Sixth Amendment to the U.S. Constitution.
Most cases — more than 95 percent of them — never go to trial, and are settled with a plea bargain instead. But some do, “and that is a really important feature of our democracy,” she said.
As a result, there is “definitely a backlog of cases” awaiting trial. Since social distancing began, there have been only two trials, both in far northern Michigan. One took place in a high school auditorium in Traverse City, the other in a huge courtroom in Petoskey, where the jurors were dispersed and not in the jury box.
Nobody yet knows when in-person trials will again resume, but the Michigan Supreme Court held a mock trial by Zoom recently, to try to help determine a list of best practices for those cases in which defendants do agree to a remote trial.
Ten years ago, the Michigan Supreme Court was in many ways an embarrassment, one in which justices issued bitterly partisan decisions and dissents, and even attacked each other in personal terms. One justice secretly recorded her colleagues’ conversations, and then published a book essentially denouncing the entire court.
Another justice made fun in public of the way a fellow justice dressed. A University of Chicago law school study listed Michigan’s Supreme Court as among the most politicized and worst in the nation.
That’s all changed since McCormack was elected in 2012. By all accounts, the atmosphere has become considerably more collegial and less partisan. Supreme Court candidates are commonly placed on the ballot by the two major parties, something Bridget McCormack is still somewhat uncomfortable with.
In the end, she was nominated by the Democratic Party over the objection of some traditional party leaders, though she made it clear that she sees the job as essentially a non-partisan one.
She was then endorsed by both conservative and liberal newspapers, and won more votes than any other candidate.
Michigan’s Supreme Court is unlike the federal one, in that the justices elect their chief justice themselves. Last year, at least one of the Republican-nominated justices backed McCormack , a nominal Democrat, for the top spot, something that would have been unimaginable just a few years ago.
Since then, she has thrown herself into the work, not only deciding cases, but working hard on reforming Michigan’s courts and pushing a study to find out why the number of inmates in county and local jails has tripled even as the crime rate has declined.
“The short answer is poverty,” she said. People get traffic and other fines they cannot pay, and end up being thrown in jail, “not usually for long, but even a short time in jail is extremely disruptive to keeping a job and family life,” she said, a practice which makes no sense.
The study called “Michigan Joint Task Force on Jail and Pre-Trial Incarceration,” led to a package of reforms now before the legislature.
Prior to being elected to the high court, Justice McCormack, now 54, practiced law in New York, taught at Yale, and then was a dean at the University of Michigan law school, where she founded the Michigan Innocence Clinic, dedicated to helping free wrongly convicted inmates in cases where DNA evidence isn’t available.
This year, she is running for re-election, though it is unlikely she has much to worry about. Not only is she highly regarded, there will be seven names on the non-partisan ballot in November. The top two vote-getters are elected, and hers will be the only name to carry the designation “justice of the Michigan Supreme Court.”
If she is reelected, she wants to do more to demystify the court system in the mind of the public, and have the courts be a positive force for good in society. “We are trying to do that,” she said.
(Editor’s Note: A version of this column also appeared in the Toledo Blade.)
