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Masks and social distancing will remain the new normal in courts

Judge Frank P. Geraci Jr. is the first to admit that the unknowns keep him up at night.

First, it was the tsunami known as Covid-19 and the dilemma of how to protect his federal court workforce and at the same time keep the courts up and running.

And now, as the region prepares to reopen, Geraci faces the equally difficult decision of how to resume trials and in-person court proceedings while again keeping the people who use and work at the courthouse safe.

"We weren't taught this in law school," said the region's Chief U.S. District Judge. "No one saw this coming. But we're not talking about processing cases. We're talking about saving lives."

If you talk to Geraci about his plans, he will tell you, probably more than once for emphasis, that it will be a deliberative and phased-in approach.

He will also tell you that masks and social distancing will be part of the courthouse landscape for the foreseeable future.

To appreciate what that means, imagine a trial where jurors sit six feet apart or a jury selection that requires not one courtroom, but two.

A few blocks away from the federal courthouse, state court officials are also planning for a resumption of in-person court proceedings and yes, caution is the watchword there, as well.

"As we reopen our community, we are very much doing a phased approach," said Andrew B. Isenberg, district executive for the 8th Judicial District. "There's a strong desire to make sure we're protecting the public."

The region's courthouses, state and federal, never really closed, but life there is far from normal, and that is likely to continue for some time.

On Monday, state, town and village courts in Wyoming, Genesee and Orleans counties reopened but with many of the rules and restrictions that began because of Covid-19.

In Erie County, the resumption of pleas and felony hearings was announced Tuesday with officials stressing the need to continue using a virtual courtroom.

Anyone visiting the courts in the next few months will be required to wear a mask and undergo a Covid-19 screening. Courthouses will also be regularly sanitized and carefully marked to allow for social distancing.

The reopening will mean the return of judges, clerks and some staff but, for now, all court proceedings will be done through videoconferencing.

Last week, Janet DiFiore, New York's chief judge, said the incremental approach is the only practical response given Covid-19's deadly and unpredictable profile.

"Here in New York, the virus appears to be in retreat," Fiore said in a video message. "But it has not been defeated, and it remains a dangerous enemy, and one we are told is likely to return."

In the region's two federal courts in Buffalo and Rochester, the return to on-site operations is underway now that Western New York is cleared to reopen.

Geraci said the Rochester courts, which are located in the already-open Finger Lakes region, could have resumed partial operations earlier but that the decision was made to wait until the Buffalo courts could also open.

With the reopening now approved, the courts can begin a four-phased plan for returning to the arraignments, trials and sentencings that used to dominate courthouse life.

Geraci said each of the first three phases will last at least 14 days, enough time for court officials to monitor the public health impact of their actions before moving forward to the next phase. He said the last phase will continue until the virus is under control.

The goal is to add courthouse staff and increase in-person court appearances during the second phase and resume civil and criminal trials in the third phase.

But with those changes come a myriad of obstacles, from jurors potentially reluctant to serve to courtrooms far too small to allow for social distancing.

One of the Covid-19-related changes that might not go away is the videoconferencing that became the rule, not the exception, during the pandemic. Judges used the technology for most essential court appearances.

"Because it works so well, I can see down the line Congress giving us the authority to continue using this technology beyond the crisis," Geraci said.

Isenberg said lawyers and judges in the state system also embraced the "virtual courtroom."

"I think there's a desire by the bench and the bar to keep the wheels of justice moving as smoothly as possible at a time when a lot of our community is under pressure," he said.

One of the consequences of the pandemic was a dramatic drop in new civil and criminal cases, a trend that's likely to end once the courts are back up and running at full speed.

Geraci, who for years has voiced concern about the backlog of cases in his courts, is expecting a surge of cases in the coming months.

So is Isenberg, who pointed to the landlord-tenant, child support and other financial disputes rising out of the crisis. In addition, as each region opens, the state court system is dropping its partial ban on new civil lawsuits.

When Geraci and Isenberg talk about the court systems' response to the pandemic, they will tell you that, despite these difficult times, they have seen courthouse workers, and the larger community, come together like never before.

"People here really want to do the right thing," Isenberg said. "It really makes me proud of the community where I live."

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