An Onondaga County Sheriff deputy radio beeps as arraignments begin in Syracuse City Court.
The deputy leans into the walkie-talkie and interrupts the proceeding, where a defendant is about to hear the charges they’re facing read aloud.
“Judge, just a moment please,” the deputy says. “They can’t hear us.”
The defendant, sitting two buildings away in the Onondaga County jail, was set to appear for the first hearing in their case by livestream – but couldn’t hear the judge.
In this case, deputies fixed the problem by closing and reopening the streaming application. In all, the arraignment took 10 minutes, five times longer than the in-person arraignments that followed.
During another virtual arraignment later that day, a lawyer who had not been able to see his client was forced to interview him in front of the courtroom.
Virtual arraignments — introduced through emergency measures during the COVID-19 pandemic and intended to stop in June 2021 — are happening everyday in Syracuse city court.
Kathleen Dougherty, the executive director of Onondaga County’s assigned counsel program, estimated probably 1,000 defendants have appeared virtually in the last 20 months.
“If you’re sitting in a jail cell, the whole system is against you. Even to the point that you can’t go to court. You’re just sitting there. That’s a terrible feeling,” Dougherty said. “It was bad enough during COVID. But then everything is ‘returning to normal’ and there they sit.”
Advocates for defendants say virtual arraignments could be unconstitutional and are dehumanizing and deny defendants adequate access to their attorneys. Gary Pieples, who runs Syracuse University’s criminal defense law clinic, described how virtual arraignments prevent attorneys from adequately being able to talk to clients, and prevent clients from asking questions of their lawyers during hearings.
Every virtual arraignment is also a potential constitutional violation, Fifth District Administrative Judge James Murphy said.
How virtual arraignments began in New York
Virtual arraignments are a vestige from the beginning of the pandemic. In March 2020, Gov. Andrew Cuomo signed an executive order allowing the practice. In June 2021, Cuomo rescinded the order.
Yet in Onondaga County, they continued.
That’s due to shortage of deputies who can transport incarcerated people from the jail to the courthouse, which is a few hundred feet away, court and county officials told Central Current.
The county has not been able to resolve the issue of staffing for virtual arraignments. It’s the reason Onondaga County Executive Ryan McMahon gave for his proposal to close Jamesville Correctional Facility. Merging the two correctional facilities would allow the county to move staff to the jail to fix the problem, McMahon has said.
The county agreed to make sure defendants are seen in-person during arraignments as part of a 2014 court settlement. County attorneys have warned that continuing the virtual arraignments presents a liability.
The deputies shortage affects other court proceedings, too.
Murphy, the local administrative judge, said at least one defendant had to wait an extra week in jail because deputies could not transport them for a hearing at which they planned to plead guilty.
Dougherty contends the problem has persisted for far too long and has often been met without enough urgency.
“I don’t know who was paying attention outside the actual jail,” Dougherty said.
Why virtual arraignments continued in Onondaga County
To try to fix the ongoing issue, Dougherty held meetings with the district attorney’s office, sheriff’s office and court administration.
Esteban Gonzalez, Conway’s chief custody deputy who now works for McMahon, represented the sheriff’s administration in talks about how to resolve the problem, Dougherty said.
The sheriff’s office’s primary focus was on trying to recruit more deputies, by attracting corrections officers from Jamesville to the jail or getting retirees to work as transport deputies. They considered ways to arraign defendants in the jail, but learned that too requires deputies to transport defendants to the area where they would be arraigned, Dougherty said.
Conway himself was “not actively involved” in conversations about fixes for the staffing problem and the issues it caused in court, Murphy said. The former sheriff did not respond to calls and texts requesting an interview.
“I never had any sense that Sheriff Conway was at all focused on this issue,” Dougherty said.
The New York State Office of Indigent Legal Services had communicated a need for assigned counsel, court administration and the county to find a solution since at least September 2021, Dougherty said.
ILS enforces a settlement from a lawsuit brought about a decade ago by defendant Kimberly Hurrell-Harring that helped solidify due process protections.
Onondaga County’s assigned counsel program is funded by the state. Because the county was out of compliance with its requirements under Hurrell-Harring, the state could have pulled the program’s funding.
In July 2022, ILS sent Dougherty a letter laying out the legal justification for requiring that arraignments be held in person.
Murphy said he discussed deadlines with the sheriff’s office to fix the problem. Those deadlines came and went. After about a year, communication about the problem decreased, Murphy said. Little changed.
The push to end virtual arraignments
While Dougherty and Murphy say some of the problems caused by the staffing shortage have been patched, issues still exist.
The transport division still only has 27 deputies of the 45 it needs, according to sheriff’s office spokesman Tom Newton.
The transport deputy shortage continues to cause issues beyond virtual arraignments, too.
In county court, the sheriff’s office transport division at times has been so short-staffed they have to notify a judge all of the defendants that are locked up will have to appear virtually that day.
Until recently, that was happening about once a week, said Cindi Newtown, the head of the District Attorney’s Office’s municipal court bureau.
The assigned counsel director said the current system is out of whack.
“Instead of the court saying, you know, the client has to be here on a certain day, it’s transport who dictates the schedule,” Dougherty said.
At times, incarcerated people have missed hearings altogether. In December, defendants missed 11 hearings because of transport issues, sheriff’s spokesman Tom Newton said. In January and February this year, defendants missed six and 11 hearings respectively, he said.
About three weeks ago, Murphy met with Shelley for the first time to discuss this issue. The sheriff’s office has been able to transport more defendants for in-person hearings since, Murphy said.
During meetings about closing Jamesville, Shelley’s staff said they planned to make it easier for deputies to work temporarily in the transport division. Previously, deputies needed to train for a year. They occasionally assign patrol deputies to transport incarcerated people to court.
While those patches have helped, virtual arraignments have continued.
That’s still having an impact on attorney-client relationships, Dougherty said.
Attorneys who represent clients in arraignments have a short window to gather paperwork, print it out and schedule a visit before their client is set to appear in court at 9:30 a.m. Usually the paperwork comes through around 7 a.m. The timeline makes it difficult for attorneys to visit defendants who are incarcerated, Dougherty said. Often phone calls are the best option.
In some cases when defendants aren’t transported to court in person, attorneys aren’t able to talk to their client at all before the hearing.
There is no clear timeline to put an end to the practice. At earliest, the county could close Jamesville in about a month – but there is no certainty that will create an influx of corrections officers to easily fill the missing transport deputies’ duties.
“The only thing I think is clear right now is we need to end it,” Murphy said.
read more about the jamesville correctional facility
The proposal has drawn the ire of Sheriff Toby Shelley and Democrats on the Legislature.
Onondaga County Legislator Mary Kuhn and community member Andy Mager voiced displeasure about the process of closing Jamesville.
Officials from the sheriff’s office and county executive’s office offered competing accounts of how to fix a staffing problem at the jail.