On Friday, Sept. 4, the Mississippi Supreme Court issued an order allowing plea hearings in felony cases to be conducted by video conference to reduce the spread of COVID-19 in jails.
Chief Justice Mike Randolph signed Emergency Administrative Order 16, which said trial judges have the discretion to use interactive audiovisual equipment to conduct plea hearings “in the interest of balancing the health risks presented by COVID-19 with the courts’ constitutional and statutory duty to remain open and accessible.”
The Supreme Court said that video conferencing for a plea hearing can be done only if a defendant willingly agrees to this method, and only if the defense attorney is physically present with the defendant. The Court issued these requirements:
- a full record of the proceedings shall be made, which may include an electronic recording (digitally or on tape);
- after consultation with counsel, the defendant shall provide written consent to the use of “interactive audiovisual equipment” during the proceedings;
- the court shall determine that the defendant knowingly, intelligently, and voluntarily agrees to appear at the proceeding by interactive audiovisual means; and
- counsel shall be physically present with the defendant during the proceedings, with each taking appropriate and/or mandated measures to minimize the potential transmission of COVID-19 (e.g., face coverings over the nose and mouth; social distancing), and provisions shall be made to allow for confidential communications between the defendant and counsel before and during the proceeding.
On March 25, the Mississippi Attorney General and the State Public Defender filed a joint motion requesting the Supreme Court to adopt a temporary rule suspension that would allow felony plea hearings, sentencing hearings and probation violation hearings to be done by way of interactive audiovisual equipment. The request was made to prevent the introduction of COVID-19 into jails. On March 26, the Supreme Court declined to allow plea hearings by video conference, but agreed to temporarily suspend Rule1.8(c) of the Mississippi Rules of Criminal Procedure to allow sentencing hearings and probation violation hearings to be conducted by video conference.
The president of the United States signed the CARES Act the next day, March 27. The CARES Act authorized federal courts to use video conferencing, under certain circumstances, for various criminal proceedings during the COVID-19 emergency, including felony pleas.
The Supreme Court said it would reconsider the issue of trial courts using video conferences to conduct plea hearings Aug. 5. The Court told the Attorney General and the State Public Defender to provide more information via supplemental briefs.
In a document filed Aug. 11, State Defender Andre’ de Gruy said, “The purpose of our request in March and still today is to protect the health and safety of detainees while ensuring their constitutional rights are protected as well. Protection of this vulnerable population also protects everyone involved in the system including jailors, court personnel and defense lawyers but the defendant’s rights must be paramount.”
The office of the attorney general asked the court in a document filed Aug. 20 to protect vulnerable populations of jails by “vesting complete discretion in Mississippi’s trial court judges to decide on a case-by-case bases whether in-person hearings can be conducted safely or should be handled remotely.”
The attorney general noted that all U.S. District Courts in Mississippi as well as in neighboring states use video conferences for accepting felony pleas. The attorney general wrote that after the CARES Act allowed federal district courts to utilize video conferences to conduct plea hearings, “all federal district courts in Alabama, Arkansas, Florida, Georgia, Louisiana, and Tennessee have found that felony plea proceedings cannot be conducted in person without seriously jeopardizing public health and safety and authorized the use of interactive audiovisual technology for these proceedings where the defendant consents and the court specifically finds that the plea cannot be delayed without serious harm to the interests of justice.”