Order — No. CR420-021 (Dkt. 17, S.D. Ga.)

Summary

An order in United States of America v. Brendell Williams, CR420-021, in the U.S. District Court for the Southern District of Georgia, Savannah Division, dated March 20, 2020 over the signature block of United States Magistrate Judge Christopher L. Ray. It denies at this time the Government's motion (doc. 9) for leave to appear telephonically at the defendant's initial appearance and arraignment. The court reasons that the Federal Rules of Criminal Procedure do not contemplate appearance by telephone but expressly contemplate video teleconference with a defendant's consent (Fed. R. Crim. P. 5(f), 10(c)), and notes that plans are in place in the Division for defendants to appear by teleconference. It encourages the Government to confer with the defense bar on video alternatives for counsel and states that the denial is not a definitive disposition of the question.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA, )
)
v. )
) CR420-021
BRENDELL WILLIAMS, )
)
Defendant. )

ORDER

The Government has moved for leave to appear at defendant’s initial

appearance and arraignment telephonically. See doc. 9. The

Government’s request, understandably, seeks to accommodate the

uncertain and rapidly evolving circumstances created by the coronavirus

pandemic.1 Id. Although the Court is sensitive to those issues and

recognizes that telephonic appearances by counsel may, eventually, be

warranted, the motion is DENIED at this time. Doc. 9.

1
The Government’s brief suggests the benefit of its presence at such proceedings is
“minimal.” Doc. 9 at 2. The Court appreciates that this assessment may be intended
to express the Government’s position that the benefit of its presence is minimal,
relative to the benefit, indeed the necessity, of defendant’s presence. Nevertheless, the
Court cannot pass over such a comment in silence. The presence of a representative
of the entity prosecuting the defendant can hardly be construed as of “minimal”
benefit. The Sixth Amendment guarantees the publicity of criminal proceedings. Such
publicity implies that the Government cannot prosecute cases in absentia any more
than a defendant can be prosecuted in absentia.
The principal obstacle to the Government’s request is the lack of any

authority authorizing telephonic appearance. The Federal Rules of

Criminal Procedure do not contemplate appearance by telephone. See

Fed. R. Crim. P. 5 (Initial Appearance), 10 (Arraignment). They do,

however, expressly contemplate conducting those proceedings via video

teleconference, subject to a defendant’s consent. Fed. R. Crim. P. 5(f),

10(c). There can be little doubt that the drafters were aware that the

technology for non-video telephone conferences existed, and, nevertheless,

declined to include telephony in the rules. That suggests, at the very least,

that video teleconferences are preferable to audio-only teleconferences. As

explained below, there is some hope that the use of video conferences for

purposes of defendants’ presence at hearings of this type may reduce the

risks of in-person appearances without venturing beyond the express

provisions of the Rules. Until the means provided in the Rules are

exhausted, however, the Court is loath to exceed them. While the option

of permitting counsel to appear by phone in the current situation may

seem like a “no-brainer” to some, the reality is far more nuanced. The

balance between public health considerations and Constitutional

obligations is delicate and fluid. Phrased more bluntly, as the facts change,

2
so too could the Court’s analysis.

In order to accommodate the extraordinary circumstances of the

pandemic, the Court has undertaken to investigate the feasibility and

logistics of conducting such proceedings via video teleconference. At this

time, plans are in place in this Division to permit criminal defendants to

appear for their initial appearances and arraignments by teleconference,

either from the Court’s detention facilities or from the facilities where

they are otherwise detained. Given those procedures, and the fact that the

courtroom will accommodate counsel and court staff’s observance of

“social distancing” recommendations, i.e. maintaining a six-foot distance

from others at all times, the risk created by counsels’ in-person appearance

at the hearing seems limited.

Given the more limited, and rule-sanctioned, procedures the Court

has already undertaken, the Government’s request to appear

telephonically is, at least, premature. The Court recognizes that any in-

person appearance creates some risk of exposure. At this time, however,

that minimal additional risk is overbalanced by the lack of any specific

authority for such a procedure. That balance may change, however, as the

circumstances created by the pandemic evolve. Neither the Government

3
nor defense counsel should interpret this denial as the Court’s definitive

disposition of the question. If circumstances change, the Court welcomes

suggested procedures for minimizing the risk of disease transmission

while protecting the parties’ rights.

Finally, given the Rules’ express contemplation of video

conferencing, the Court would encourage the Government to confer with

members of the defense bar to investigate alternatives that would allow

counsel to appear by video conference. As discussed above, the Court has

taken steps to provide means for defendants to appear remotely. The

Court is not in a position, however, to provide such alternatives for

counsel. The Court would be receptive, however, if the Government is able

to propose a video system whereby all parties could appear from remote

locations.

SO ORDERED, this 20th day of March, 2020.

______________________________
CHRISTOPHER L. RAY
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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