By Jon English
Prosecutor, Special Prosecution Unit
Do you remember when you were a kid, if you were watching a TV show or movie set in the future, everyone spoke to each other on some kind of video phone?
From the bridge of the U.S.S. Enterprise, to the living room of Marty McFly in Back to the Future II, we all just knew that when you spoke to a person in the future, you’d be able to both see and hear them, and they’d be able to see and hear you. Then, in 2010, the iPhone introduced us to FaceTime and it … didn’t change our lives. Like flying cars or jet packs, two other things Hollywood promised we’d all own by now, just having the technology available didn’t create demand.
It took the pandemic for us to willingly turn on the cameras in our phones and laptops and intentionally point them at our washed-out, poorly lit faces and adopt video teleconferencing for, well, just about everything in our lives now. Today, the default meeting type is a “Zoom” meeting. Just the company title, Zoom, something most of us had never heard of in March 2020, has become a generic term like Kleenex or Legos.
In large part, conducting court over teleconference has been possible only because of the Texas Supreme Court’s emergency orders during the pandemic.[1] Eventually, those pandemic orders will expire and not be renewed, and the question becomes whether Zoom court is here to stay. Some of that depends on pending legislation that would theoretically make it possible to have all forms of court proceedings over Zoom indefinitely.[2] Even if that legislation passes, it’s not clear which courts would choose to continue on with virtual hearings over traditional in-person hearings.
There’s no legislation required at all to continue with pleas over Zoom: It’s already codified. Many of you have become familiar with the requirements of Texas Code of Criminal Procedure Art. 27.18, which sets forth guidelines for how to conduct a felony plea over videoconference. All you need is a program like Zoom that fulfills all the statutory requirements of CCP Art. 27.18 and a written waiver from all parties saying they consent to the use of videoconference.[3] And of course, always remember that even Zoom court has to be available to the public, so make sure you’re simulcasting on YouTube or making the proceedings visible and audible in open court.
Pleading a prisoner
But what do you do when you need to obtain a plea from someone who is incarcerated in the Texas Department of Criminal Justice (TDCJ)? At least pre-pandemic, my guess is that most of you were having the inmates bench-warranted to your county. Maybe they’re coming from a prison unit hundreds of miles away from your court. Maybe they have chronic medical issues. That’s a lot of expense and risk on the part of your sheriff’s office and your jail.
“Jon,” I hear you saying. “There’s got to be a better way!”
Well, I’m here to tell you there is! And it’s just next door to CCP Art. 27.18, the videoconference statute’s lesser-known cousin: CCP Art. 27.19.
This is the statute that allows prosecutors to take pleas from inmates the same way we take pleas from anyone else over videoconference. Legally, just like with CCP Art. 27.18, all you need is a platform like Zoom and a written consent form, and all of your prison-Zoom dreams can come true![4]
Except for one small problem. Who the heck knows how to logistically accomplish all the steps necessary to get an inmate in front of a camera, onto the internet, and into a Zoom meeting? I can tell you that the Special Prosecution Unit (SPU), the organization I work for, most certainly did not. And that’s surprising, because practically all our criminal division does is prosecute people who are already in prison for crimes they commit on TDCJ property while serving their sentences.
But teamwork makes the dream work. Or hang in there, kitten—it’s almost Friday. Or when there was only one set of footprints, that’s when I carried you. Or whatever motivational-poster saying floats your boat—the bottom line is a lot of unsung heroes (mostly our fearless investigators), dug in, worked the problem, and had us slowly moving our dockets again from remote locations all across the state.
Now that we’ve successfully completed several hundred of these online pleas, I can share with you the secrets of the trade that we at SPU have guarded with our lives, lo, these past 10 months. Mostly because we didn’t want anyone to see how wince-inducing it was at the beginning. Also, because no one asked until now.
Step One: Access to Courts
When an inmate has been scheduled on a docket and you have decided he should appear by Zoom, your journey begins by contacting the Access to Courts division of TDCJ. In a nutshell, Access to Courts has existed in the past to allow inmates access to legal materials that educate them on the law so they can fight perceived injustices while confined. Notice nowhere in that job description does it say “field calls from around the state so you can help put inmates in front of a laptop computer to plead a case.” But like so many of us, folks in the Access to Courts division of TDCJ have found themselves in an “other duties as assigned” situation while they wear all the hats required to bring the justice system through this pandemic.
Through hard work and diligence on the part of people such as Travis Turner, Deputy Director of the Administrative Review and Risk Management Division of TDCJ, the department has put into place its own policies and procedures for when an office requests an inmate for a plea. That process begins by emailing a request to Jeania Pegoda at [email protected]. Include in the email the inmate’s name, his TDCJ and SID numbers, the unit where he is, and the day and time you will need him for the hearing. It doesn’t hurt to include the cause number of the case you’re trying to plead, just to make it easier to match up the plea paperwork later. And of course, it goes without saying that you need to include all of your contact information, including the county you work for.
Remember, your perception of time in the free-world is not the same as time in TDCJ-world. Everything takes longer in TDCJ-world than you think it’s going to, through no fault of the folks who staff the units. People who work for TDCJ know this and have become accustomed to it. Now that you have read this paragraph, you know it too, so no pleading ignorance. Get requests in early. We’re told a week is technically early enough, but that’s cutting it extremely close. Two weeks is better. A month is fantastic. If your court resets cases four to six weeks out or more, start setting up the Zoom call as soon that happens.
The Access to Courts division needs advance notice partly because people there need to ensure that the unit housing the inmate is set up for a Zoom hearing. Not all TDCJ units are already outfitted with the technology needed for Zoom calls; some don’t even have reliable internet connections. Setting everything up in advance with Access to Courts means they can send an IT strike-team out in anticipation of the hearing. Many catastrophic headaches are avoided this way.
The other reason Access to Courts needs advance notice is because they have now essentially become air traffic controllers when it comes to coordinating these dockets. My office, the SPU, with the sheer volume of defendants we request from around the state on a weekly basis, has more than enough work to keep the prisons hopping. Throw in requests from other free-world prosecutor offices, and some of the units may have several inmates scheduled to be in front of the sole laptop at the unit at the same time. Proper notice is essential to keep things from crashing, literally and figuratively.
Step Two: Law library
Access to Courts will put you in touch with the person or people at the unit who will be the contacts for getting the plea paperwork to the unit and for actually getting the inmate online the day of the plea. Most likely it will be someone at the law library who helps with these important but time-consuming steps.
The reason things get so tricky at this point in the journey is because the prosecutor, law library, and defense attorney all have to coordinate to make the next steps happen. The defense attorney has to schedule a lay-in (prison lingo for “visitation”) with the defendant/inmate. Almost certainly this will happen over the phone. That means the defendant/inmate and his attorney must both have identical copies of the plea paperwork to review together.
For this to happen, the prosecutor has to let the contact at the law library know when the lay-in is and coordinate with that contact about the best time to get her the paperwork. This is important because, again, these employees have lots of other jobs and lots of other responsibilities that do not involve the headaches of Zoom hearings. You need to be like Goldilocks and get them the papers not too early, not too late, but just right. That’s going to solve a lot of headaches going forward.
After the lay-in has happened and the paperwork is all signed by the defendant/inmate, the law library will send it back to you. At this point, it’s just up to you and the defense attorney to shuffle the papers back and forth like you would with any other Zoom plea until everything is signed and filed according to your local customs.
The law library will also be the go-to on the day of the plea. Supply these folks with the Zoom link and any other pertinent information you’d send to anyone else attending a Zoom hearing. Best practice is to touch base with your contact in the law library the day before to make sure she has received everything she needs from you to have the inmate in front of a laptop the next day.
Don’t forget the judgment
Now that I prosecute all across the state in multiple jurisdictions, I can tell you this: No two counties anywhere in Texas seem to have the same procedure for preparing judgments. Some have the local prosecutor’s office do it. Some have designated departments that do it. Some have the district or county clerk’s office do it. Some have the court do it.
No matter who is supposed to do the judgments in your jurisdiction, you’re not going to have a thumbprint on your judgment if you don’t send it to the TDCJ unit along with the other plea paperwork. The unit will happily get the defendant printed for you, solving a major logistical problem. They’ll even mail the originals of the documents back to you if that’s what your office or court has decided needs to be filed (it’s essentially the only way the fingerprint on the judgment will be legible enough to ever be used for enhancement purposes; once it’s been faxed or scanned three or four times, it just looks like an unfortunate beetle was smushed into the thumbprint box).
Warden, I’m worried about the Beaver
Whenever you have business with a TDCJ unit, it behooves you to check in at some point with the warden’s office. Not because the warden is your point person in securing a plea from an inmate (although he or she may prove to be so), but because in the TDCJ universe, the warden of the unit is absolutely the commander-in-chief and should be thought of as such. It is therefore at the very least a courtesy and at the very most a necessity to give the warden a heads-up about your plan to Zoom in to the unit and broadcast a plea back out to the free-world.
In fact, in some units, the warden’s office is the only place where there is sufficient internet connection to even join a teleconference. Don’t be that person who makes the warden come to work one day, only to find out his or her office isn’t available because it’s been hijacked for a plea by an out-of-county prosecutor who forgot to make a phone call.
Conclusion
I can’t predict how long Zoom calls will be a tool that Texas courts choose to utilize for daily proceedings. And based on the number of pairs of cargo shorts I still own (and wear), you don’t want me trying to predict the lifespan of fads. But even if Zoom court falls out of favor, it will remain an option for pleading inmates, and that means it’s a tool you can keep in your own toolbox to meet your county’s needs. At least until the next wave of technology comes along and changes everything again.
Endnotes
[1] See 36th Emergency Order Regarding the Covid 19 Disaster, Misc. Docket No. 21-9026 (Tex. 2021).
[2] See SB 690 and HB 890, 87th Legislative Session.
[3] Tex. Code Crim. Proc. Art. 27.18(a)(2) and (3) (allowing for videoconference if “the videoconference provides for a simultaneous, compressed full motion video, and interactive communication of image and sound between” all parties, and requiring the software to allow counsel and client to communicate privately).
[4] Tex. Code Crim. Proc. Art. 27.19(a)(1).