As the Missouri Supreme Court held its first-ever remote oral argument on April 14, Chief Justice George W. Draper III tried to make things seem as normal as possible.
“You may be seated,” he said to an audience he could not see as he welcomed them to a courtroom where almost no one was present. “We’re doing something a little different than normally, given the condition.”
During the COVID-19 crisis, most court hearings, including Supreme Court oral arguments, have been delayed or set aside. But the court agreed to hear a handful of cases remotely — including that of Lamar Johnson, for whom the St. Louis Circuit Attorney’s Office is seeking a new trial 25 years after it convicted him of murder.
Having agreed to hear the case remotely, the Supreme Court then had to figure out a way to make that happen. Using the videoconferencing program Webex, Draper, accompanied by a handful of court staff, faced a screen — propped up on boxes to account for the height of the bench — in the main courtroom in Jefferson City.
Draper and the three attorneys who argued the case could see each other. The court’s six other judges were connected from remote locations, but due to bandwidth restriction they had only partial video connections: The judges could see the attorneys, but the attorneys could not see them. Instead, Webex identified each judge by his or her initials.
“I would say most of the argument was delivered to the initials of whatever judge was talking at the time or had asked the most recent questions,” said Daniel Harawa, director of the appellate clinic at Washington University School of Law, who argued the case on behalf of the St. Louis Circuit Attorney’s Office.
As is the court’s standard practice, audio of the argument was livestreamed and archived on the court’s website. The event got off to a rocky start, at least for those members of the public who tuned in online. Supreme Court Clerk Betsy AuBuchon’s introduction of new attorneys wasn’t picked up by the microphone, resulting in a long stretch of near silence. Johnson’s attorney, Lindsay Runnels of Morgan Pilate in Kansas City, asked the chief justice to repeat some of his instructions when the sound became garbled.
And at some point in the argument, Draper’s microphone stopped working altogether, leaving Judge Paul C. Wilson to preside over the rest of the argument.
“I want to thank counsel on behalf of the court for a very well-argued case, and for each of you persevering in difficult circumstances. We appreciate it,” Wilson told the attorneys at the conclusion of the argument.
A few glitches aside, the overall argument appeared to run smoothly. Despite the lack of normal visual cues, judges and attorneys rarely talked over each other. AuBuchon, who stayed in contact with the judges via text message, helped to direct traffic by holding up cards when someone needed to speak.
Harawa said he appreciated the court’s flexible approach to the argument.
“It wasn’t a jumble of multiple people asking questions at the same time,” he said. “That was really kind of nice from a lawyer’s perspective, because even in in-person arguments you get judges talking over each other, asking questions at the same time. The fact that didn’t happen really let you answer each question before moving on to the next one.”
The Missouri Supreme Court isn’t the only state high court experimenting with remote arguments. Just four days before, the Kansas Supreme Court held arguments via Zoom to decide if a legislative panel could override Kansas Gov. Laura Kelly’s emergency ban on mass gatherings without an exemption for religious organizations. The court allowed Kelly’s order to stand.
Edward Greim of Graves Garrett in Kansas City, who argued the case on behalf of the Kansas Senate, said the argument was hastily arranged but well-executed, drawing about 3,400 live viewers.
Greim said it was his first oral argument via Zoom and that he preferred it to a teleconference, where the participants often speak over one another. Not only did the format allow him to see the judges all at once, he said, but it also offered a rare opportunity to observe his opponent’s and co-counsel’s reactions.
“In a lot of ways, it’s even better than in person,” Greim said.