Administrative Orders Relating to COVID-19

                                            IN THE 32ND JUDICIAL CIRCUIT

                                                    STATE OF ALABAMA

 

                                         ADMINISTRATIVE ORDER 2020-07.2

 

                                    A Revised Order Relating to Virtual Court Hearings

WHEREAS, the Alabama Supreme Court issued an administrative order dated March 13, 2020 that “[a]ll in-person proceedings in all state and local courts in Alabama, including, but not limited to, proceedings in the circuit court, district court (including cases on the small claims docket), juvenile court, municipal court, probate court, and appellate courts, are suspended beginning Monday, March 16, 2020 through Thursday, April 16, 2020, subject to [certain] exceptions”; and

WHEREAS, the Alabama Supreme Court’s administrative order expressly provided that “…all judges and clerks are urged to limit in-person courtroom contact as much as possible by utilizing available technologies, including electronic filing, teleconferencing and videoconferencing …” and further provided that “[t]his order expressly does not prohibit court proceedings by telephone, video, teleconferencing, or other means that do not involve in-person contact…” and the Supreme Court order also temporarily suspended any rule that limits a judge’s ability to consider testimony by use of audio or video conferencing during the period of suspension; and

WHEREAS, Alabama Supreme Court Chief Justice Parker issued an order dated March 24, 2020 for court reporters in a court proceeding using audio video communication technology to administer oaths to witnesses who are not physically present before the court reporter; and for trial courts to consider the testimony of those witnesses as evidence; and

WHEREAS, the Alabama Supreme Court issued an administrative order dated April 2, 2020 that adopted the administrative orders previously entered by Chief Justice Parker dated March 16, 2020, March 18, 2020 and March 23, 2020. Further, the Alabama Supreme Court’s April 2, 2020 order provided that “[a]ny deadlines in the Court’s Administrative Orders that are set to expire on April 16, 17 or 20, 2020 are hereby extended through April 30, 2020, and the orders shall remain in full force and effect through April 30, 2020.” ; and

WHEREAS, after consultation with all other judges of this judicial circuit, the following rules are deemed necessary for the local implementation of virtual court proceedings;

It is therefore ORDERED that until April 30, 2020 or during any subsequent period of time the Alabama Supreme Court shall suspend or partially suspend in-court proceedings and allow for court hearings to be conducted by audio conference or video conference, the following rules and guidelines are hereby adopted and shall be followed by all parties appearing for any hearing or trial that is presently pending or hereinafter filed in this 32nd Judicial Circuit in which sworn testimony is taken by the use of audio or video conferencing equipment.

  1. Definitions:

The term "video conference" means the use of any interactive technology that sends and receives video, audio, and data so that two or more individuals can communicate with each other contemporaneously from different locations using cameras, microphones, speakers, and computer monitors or screens that allow the individuals participating to view and hear each other.

The term “audio conference" means the use of any interactive audio technology, including a cell phone or telephone, that permits two or more individuals to contemporaneously speak with each other from different locations.

  1. Each judge of this judicial circuit shall have the discretion to require that any non-jury court proceeding be conducted by audio conference or video conference. Every court proceeding conducted by the use of audio conference or video conference shall conform to the requirements of the administrative orders issued by the Alabama Supreme Court and Alabama Supreme Court Chief Justice Parker that are referenced above. Such proceedings shall hereinafter be referred to as “virtual court hearings”.
  2. Virtual court hearings may be scheduled and held in all non-jury cases, including, but not limited to, pendente lite hearings in domestic relations cases, domestic relations trials, contempt hearings, modification hearings, civil motion hearings, protection from abuse hearings, child support hearings, parentage hearings, hearings for injunctive relief, civil non-jury trials, small claims proceedings, traffic hearings; all juvenile proceedings, including but not limited to, shelter care hearings, adjudicatory hearings, dispositional hearings, termination of parental rights hearings, permanency hearings, juvenile court review hearings; criminal proceedings, including, but not limited to, initial appearance hearings, arraignments, preliminary hearings, hearings on motions to reduce bond, hearings on motions to revoke bond, probation hearings, probation revocation hearings, youthful offender hearings, hearings on habeas corpus petitions and petitions for post-conviction relief. The above list is not intended to be an exclusive or exhaustive list but is offered merely as examples of the kinds of proceedings that may be conducted by use of video conferencing or audio conferencing.
  3. All virtual court hearings with video capabilities must be conducted with Zoom software unless the judge presiding over the hearing authorizes the use of a different software or technology that has been deemed trustworthy and reliable for court use.
  4. All counsel of record and all self-represented litigants shall be timely notified of the date and time of a scheduled virtual court hearing via Alacourt.com, e-mail, regular mail or as otherwise allowed by the Alabama Rules of Court or by statute.
  5. Subpoenas. A subpoena issued for the appearance of a witness at a virtual court hearing shall clearly state the address that the witness will need to appear to offer sworn testimony. Typically, this location will be the law office address of the attorney who requested the subpoena but may be any location designated in the subpoena as permitted by this order. The subpoena shall also inform the witness that he or she has the option of testifying from his or her home or other location of his or her choice, provided the witness has: (i) a computer, smartphone, tablet, or other device with video conference capabilities (camera, microphone and monitor), (ii) free Zoom video conference software or such other video conference software permitted by the trial judge, (iii) an e-mail address and (iv) internet service with sufficient broadband for a video conference. If the virtual court hearing has been designated by the trial judge as an audio virtual court hearing only, video capability is not required. The subpoena also shall instruct the witness that if he or she intends to testify from his or her home, the witness must immediately contact the law office or person requesting his or her appearance to provide an email address and telephone number where the witness can be reached during the scheduled virtual court hearing. It is the responsibility of the person requesting the subpoena to confirm each of his or her witnesses’ ability to participate in a video conference or audio conference. If the witness is not able to participate in the virtual court hearing from his or her home or other selected location, the person issuing the subpoena shall decide whether the witness is material and, if so, it is the responsibility of the person issuing the subpoena to make arrangements for the witness to appear at a location having sufficient video conference or audio conference capabilities.

At least seven days prior to the scheduled virtual court hearing, each party shall provide the court clerk with a list of witnesses who will be called to testify. The list shall include: (i) the name of each witness, (ii) telephone number where the witness can be reached at the time of the virtual court hearing and (iii) the e-mail address of each witness expected to be called as a witness. If the identity of a witness is unknown to a party seven days prior to the hearing, the identity, phone number and e-mail of the witness shall be provided to the court clerk as soon as it is determined the witness may testify.

If the witness sequestration rule is invoked at a virtual court hearing, all witnesses testifying must be at different physical locations and unable to hear the testimony of other witnesses, except as may be otherwise agreed by the parties on the record. If necessary, witnesses may be telephoned by counsel of record or by a party and prompted to log onto the video conference or audio conference when it is time for the witness give his or her testimony. A witness may also be placed on hold by the judge at any time that a discussion is needed to be held out of the presence and hearing of a witness.

Notwithstanding the foregoing, a witness need not appear at a location other than his or her residence if, at the time of the scheduled virtual court hearing, the witness is: (1) running a fever, (2) is in quarantine due to possible exposure to someone testing positive for COVID-19, (3) is over the age of 60 years or has an underlying medical condition that would create a greater risk to the witness if exposed to COVID-19, (4) if sick, or (5) if a general State-wide shelter in place order has been issued by the Governor of the State of Alabama or if a similar shelter in place or quarantine order has been issued by a local governmental entity having authority to issue such orders. Further, each subpoena issued for a virtual court hearing shall contain a prominently displayed notice that “all witnesses are required to have in their possession a government issued photo ID to establish his or her identity at the virtual court hearing.” Before a witness is administered his or her oath and allowed to testify, the government issued photo ID shall be shown to the court reporter who is transcribing the proceeding or to the judge presiding over the proceeding, if no court reporter is present.

  1. All counsel of record and all self-represented litigants are hereby ordered to provide written verification of their e-mail addresses to the court clerk within 10 days from the entry of this order and a telephone number, if not previously provided. The court clerk shall provide a copy of this order to all attorneys of record and to each self-represented party who does not currently have an e-mail and telephone number listed in the case record.

In the event an attorney wishes to withdraw from a case, the motion to withdraw shall contain a certification that the attorney has notified his or her client of the requested withdrawal, that the client has been informed of all pending hearings or trial dates, including virtual court hearing dates, and that the attorney has notified the client that it is the client’s responsibility to immediately contact the court clerk to provide a current regular mailing address, telephone number and e-mail address for future court hearings, including virtual court hearings. If counsel is unable to communicate with his or her client, the attorney shall provide a brief account of attempts made to notify the client of his or her intent to withdraw and of the client's responsibility to provide the court clerk's office with a current mailing address, telephone number and e-mail address.

  1. All persons appearing for a virtual court hearing at an office or other location shall adhere to the protocols adopted by the Centers for Disease Control to limit the transmission of COVID-19, including maintaining a social distance of at least six feet, to the fullest extent practicable.
  2. Communication Between Counsel and Self-Represented Parties Prior To Filing Request For Virtual Court Hearing.

 

If a party wishes to request that a case be set for a virtual court hearing that has not already been set, counsel for the party making the request shall first confer with counsel of record for all other parties involved (or if a party is a self-represented party, then directly with the self-represented party) and determine whether all parties consent to holding a virtual hearing pursuant to the requirements mandated in the administrative orders referenced above and this local order. Each party shall thereafter file a notice with the court clerk, giving consent to the virtual court hearing or objecting to the hearing. In the event an objection is made to the virtual court hearing, the party making the objection shall state specifically each and every basis for the objection, and the judge presiding over the case shall make a determination whether the virtual court hearing should be conducted. The provisions of this paragraph nine shall not apply to those types of hearings exempted from the in-person suspension orders of the Alabama Supreme Court referenced above. Those in-person hearings will be held at the courthouse or such other facility designated in the order setting the matter for hearing unless: (i) all parties to the proceeding waive their right to an in-person court proceeding and agree to a virtual court hearing, or (ii) the judge presiding over the case makes a determination that a virtual court hearing is necessary to safeguard the public health and to the protect the health of those individuals involved in the court proceeding.

With respect to all civil cases, including small claims cases, and domestic relations cases, a party filing a request to schedule a virtual court hearing shall first certify to the court in writing that he or she has made a good faith attempt to communicate with the opposing attorney and each self-represented party in an effort to resolve the matters in dispute prior to filing a request to set for hearing and shall briefly describe the efforts made to communicate with opposing counsel or any self-represented party. This requirement shall not apply to protection-from-abuse proceedings.

  1. Pre-trial Conference. Counsel of record and any self-represented party may also request that a pre-trial virtual court hearing or telephone conference call be held with only counsel of record and any self-represented party to discuss the scheduling of discovery, to narrow the issues that may be in dispute, or to discuss other matters that may facilitate a settlement of the case or matter in dispute.
  2. Procedure for Virtual Court Hearings. The judge assigned a case will schedule a virtual court hearing and notice of the date and time for the proceeding will be provided to all parties by Alacourt.com, by regular mail and by e-mail, or as otherwise allowed by the Alabama Rules of Court, statute or administrative order of the Alabama Supreme Court. Counsel shall contact his or her client and arrange for the client and all the client’s witnesses to appear at the attorney’s office or other designated location AT LEAST 30 minutes before the proceeding is scheduled to commence. A self-represented party shall do likewise with respect to all witnesses he or she expects to call at the virtual court hearing. Counsel for the parties and any self-represented party shall also ensure that all necessary equipment and software are in proper working order prior to the time of the scheduled hearing and that bandwidth is adequate for video conference. Self-represented litigants shall contact the clerk’s office at least seven days prior to the scheduled virtual proceeding, except when the times have been shortened due to the necessity of scheduling an emergency hearing, and notify the clerk in writing whether he or she has the ability, equipment, software and bandwidth required to participate in the virtual court hearing and, if so, shall confirm that the clerk has the e-mail he or she will use to connect with Zoom or other approved software and a telephone number that the party can be reached during the virtual court hearing, if it should be necessary. If a self-represented litigant notifies the clerk in writing that he or she does not have the knowledge, equipment, software or bandwidth necessary to proceed with the virtual court hearing, the judge presiding over the case may hold a telephone conference with all self-represented parties and counsel of record to determine the best way to proceed. The judge and counsel of record and any self-represented party shall explore other possible options for conducting a virtual court hearing, including the use of the local access computer in the Cullman County law library and any other available local facilities that may be equipped with the appropriate technology for virtual court hearings. Failure to attend a virtual court hearing may result in dismissal of the action or entry of a default judgment or appropriate sanction, as may be proper under the circumstances.

It is the responsibility of the parties, whether represented by counsel or representing themselves, to have all of their material witnesses present at a virtual court hearing. Each witness who appears must have a government issued photo ID with them at the time of the proceeding or the witness will not be allowed to testify, except by consent of all parties or with another acceptable proof of identification. Shortly before the virtual court hearing is scheduled to begin, counsel of record and any self-represented party shall contact each of their respective witnesses at the telephone numbers provided by them and instructed to be on standby to give their testimony.

At the time the virtual court proceeding is scheduled to begin, the judge or a member of the judge’s staff will connect with all parties and counsel of record using Zoom software or such other software that has been approved. Once it has been determined by the judge that all necessary individuals are present and able to see and hear what is transpiring at the proceeding, the hearing shall progress as though the parties were physically present, subject to the rules specifically adopted for virtual court hearings.

Virtual Court Hearings with Court Reporter. If a court reporter will be transcribing the virtual court hearing, before testimony or other evidence is taken, the judge shall obtain the verbal consent of all the parties and attorneys on the record to have the court reporter record the proceedings to create a record, even though the court reporter may not be physically present in a courtroom as provided in Section 12-17-275, Ala. Code 1975. Once all parties and counsel of record consent, the official court reporter shall be present through-out the video conference and able to see and communicate with every witness who appears remotely using Zoom software or such other video conference software that has been approved by the judge presiding over the virtual court hearing. Prior to a witness testifying, the court reporter shall ascertain the identity of the witness and administer the oath to the witness remotely. At all times during the witness’s testimony, the court reporter shall be able to see, hear and communicate with the witness who is testifying. The court reporter shall record the video conference court hearing just as though the hearing were being conducted with all parties and counsel appearing in person, but if the court reporter is requested to transcribe the record, the court reporter’s transcript shall reflect in the transcript that the transcript was made with all individuals appearing remotely with video conferencing, except for any individuals who may have been physically present with the court reporter during the virtual court hearing.

When the testimony of a witness is needed, the judge or a member of the judge’s staff will send an invitation to the witness who is being called to testify by a party or remove the party from Zoom hold. Counsel of record or a self-represented party may contact his or her witness by telephone if the attempt to connect the witness to the video conference is unsuccessful and attempt to determine the cause of the problem and assist with possible solutions. At the conclusion of a witness’s testimony, the court shall inquire whether the witness may be excused or released from any subpoena. If a party indicates that further testimony from the witness may be required, the witness will be notified by the court to remain on call at his or her present location pending further instructions from the party who has indicated further testimony may be needed from the witness.

Virtual Court Hearings in Which No Court Reporter is Present. In any virtual court hearing in which a court reporter is not present to record the proceeding, the hearing may be recorded in any manner permitted by statute, rule or administrative order of the Alabama Supreme Court. Before the virtual court hearing begins, the judge shall explain to all counsel of record and to the parties the process that will be used to make a record of the hearing and obtain the verbal consent of all parties to the recording method being employed. Further, all witnesses appearing for the virtual hearing may be administered the oath by the judge presiding over the hearing or as otherwise permitted by statute, rule or administrative order of the Alabama Supreme Court and the consent of all parties to this procedure shall also be obtained prior to taking evidence in the virtual court hearing.

Consents to VCH. All acknowledgments, waivers and consents to the virtual court hearings required by this order may be signed by all counsel of record and parties in advance of the virtual court hearing and filed of record in the case.

Recordings Prohibited. No electronic device or other means may be used by a party, attorney, witness, or any other person to capture images, videos, or sound recordings of any portion of a virtual court hearing without the express written consent of the judge presiding over the judicial proceeding. Any person violating this rule may be held in contempt of court.

Exhibits. No later than seven days before a scheduled virtual court hearing (emergency hearings excepted), counsel for the parties and any self-represented litigant(s) shall confer with one another regarding the use of exhibits at the virtual court hearing. Consistent with the duty of client representation, counsel and any self-represented litigant shall discuss potential exhibits that may be introduced at the virtual court hearing and stipulate as to the authenticity and admissibility of any proposed exhibit, to the extent they are willing to do so. No authentication or other foundation will need to be established at the virtual court hearing for any exhibit the parties have agreed may be allowed into evidence by their stipulation.

Exhibits Capable of being Displayed in an Electronic Format. Each party shall cause an exact copy to be made of all photographs, videos and documents intended to be shown to a witness or offered into evidence at a virtual court hearing. The original and each copy of the original shall be pre-marked with the same number, with the first exhibit being denominated as exhibit number one and each original and copy thereafter numbered sequentially. Each marked exhibit shall also clearly identify the party who will be offering the exhibit. All originals shall be retained by the proffering party and copies of the exhibits (hereinafter referred to as “court copies”), shall be placed in either a sealed envelope or sealed box and mailed or delivered to the court reporter who will transcribe the virtual court hearing. The court reporter shall keep the court copies in a secure location and shall not open them until the beginning of the virtual court hearing. Once the virtual court hearing has begun, the court reporter shall unseal the court copies for the judge to view during the course of the hearing. If a court reporter will not be present at the virtual court hearing to record the proceeding, all court copies shall be delivered to the judge presiding over the hearing, who will open the court copies and keep them secure.

Physical Exhibits not capable of being reduced to Electronically Stored Format and Exhibits used in Rebuttal.

 

Notwithstanding the foregoing, any exhibit that is not capable of being reduced to an electronically stored format need not be delivered to the court reporter or judge prior to the commencement of the virtual court hearing. Examples of such exhibits include physical objects such as weapons, equipment, clothing, bullets, etc. Such exhibits may, if properly authenticated and otherwise admissible, be allowed into evidence at the virtual court hearing as permitted by the Alabama Rules of Evidence. The court may also allow exhibits offered in rebuttal to be introduced at the virtual court hearing even though the exhibits have not been provided to the court in advance of the hearing. Any physical or rebuttal exhibit offered by a party shall first be appropriately marked and shown to opposing counsel and to any self-represented party before it is offered into evidence. Prior to a virtual court hearing’s concluding for the day, each party shall place all of their exhibits that have been admitted into evidence or disallowed by the court that day into a large manila envelope(s) or box and the envelope(s) or box sealed in view of the judge, court reporter, if present, and all other parties. Each exhibit envelope or box shall be accompanied by a certification from the offering party that the exhibits have not been altered or changed in any way once placed in the envelope or box and sealed in the presence of the court and other parties. The admitted and excluded exhibits shall be delivered with the seal unbroken to the court reporter recording the virtual court hearing as soon as possible after the hearing recesses each day. If no court reporter is present to record the proceeding, then the exhibits shall be delivered with seal unbroken to the judge presiding over the virtual court hearing at the end of each day’s proceeding.

Procedure for Presenting Electronically Stored Exhibits at Virtual Court Hearing. Parties wishing to offer a document, photo, or video as an exhibit at the virtual court hearing shall cause a true and exact copy of the document, photo or video to be created and stored electronically on the computer or other device that will be used at the virtual court hearing. Before an authenticating witness is brought into a virtual court hearing or while the witness has been placed on Zoom hold, the party seeking the admission of the exhibit into evidence shall use the share feature available on Zoom (or such other software being used with permission of the court) to show the marked exhibit to opposing counsel and any self-represented litigant. Once the exhibit has been shown to opposing counsel and any self-represented litigant, the authenticating witness may be removed from Zoom hold and returned to the virtual court hearing.

Retention of Exhibits at Conclusion of the Virtual Court Hearing. All exhibits admitted into evidence during the virtual court hearing and all exhibits that have been offered into evidence by a party and not admitted into evidence shall be retained by the court reporter in a secure location for the same period of time prescribed for in-court proceedings. If no court reporter is present to record the proceeding, the judge presiding over the virtual court hearing will retain the exhibits as provided by law.

Attire. Appropriate courtroom attire, whether in a traditional courtroom or a virtual one, helps preserve the dignity of the occasion and promotes public trust and confidence in the judicial proceeding. Therefore, judges, attorneys, parties and witnesses should dress for virtual court hearings just as they would dress if they were appearing in a traditional courtroom. The judge presiding over a virtual court hearing will determine the specific dress code for his or her court. 

  1. Juvenile and Youthful Offender Proceedings. Virtual court hearings in juvenile and youthful offender cases shall proceed in a manner consistent with the procedures described in the above paragraphs, subject to the additional safeguards provided herein. The judge presiding over the case shall initiate the virtual court hearing using additional privacy measures provided by Zoom to make the virtual court hearing private, including the use of PIN numbers that are only available to necessary participants. However, despite all reasonable efforts to ensure that privacy and confidentiality are preserved with encryption, it is widely understood that no software can possibly be deemed perfectly secure from a breach and that if a breach were to occur a computer hacker could eavesdrop on a video conference or otherwise gain access to a virtual court hearing. Therefore, as an additional precaution, it is ordered that in all juvenile and youthful offender proceedings conducted with video conference, only the initials of the youthful offender or juvenile shall be used and no one at the hearing shall disclose any information that could identify the juvenile or youthful offender, except to the extent that may be reasonably necessary given the nature of the case. Further, prior to the commencement of each juvenile or youthful offender virtual court hearing, the court shall inform all lawyers, parties, guardians ad litem, witnesses and other participants at the hearing of this rule.

Further, with respect to juvenile proceedings in which a child is not physically present with his or her attorney at the time of the virtual court hearing, the child shall be afforded an opportunity at any time during the virtual court hearing to communicate privately with his or her attorney either in person or by use of a phone or video software that ensures confidentiality of the communication and the child shall be informed by the court of this right before the virtual hearing commences. Virtual court 72-hour detention hearings, or pleas taken at these hearings in juvenile delinquency cases, must meet the legal requirements set out by Order of the Supreme Court of Alabama dated June 22, 2006 (and extended by Orders dated June 3, 2008, April 19, 2011, September 17, 2014, and April 17, 2017), the Court’s Guidelines for Videoconferencing Detention Hearings (Temporary), and the Alabama Judicial System Policies, Procedures and Guidelines Governing Videoconferencing Appearances in Juvenile Courts which was approved by memorandum dated September 4, 2009.

  1. Criminal Proceedings Generally. Virtual court hearings in criminal cases shall proceed in a manner consistent with the procedures described in the above paragraphs, subject to the additional safeguards provided herein when a defendant is not physically present in the same room with his or her attorney during a virtual court hearing. A defendant in any criminal case may waive his or her right to be present at a virtual court hearing. However, if a defendant is incarcerated in the Cullman County Detention Center and does not waive his or her right to be present, the defendant shall be brought into the detention center’s on-site video conferencing room before the hearing begins and shall be connected to the virtual court hearing so that he or she is capable of hearing and seeing everything that transpires during the virtual court proceeding. Further, the defendant shall be afforded an opportunity at any time during the virtual court hearing to communicate privately with his or her attorney either in person or by use of a phone or video software that ensures confidentiality of the communication and the defendant shall be informed by the court of this right before the virtual court hearing commences.
  2. Procedure in Criminal Cases for Guilty Plea Hearings. If the State and Defendant reach a plea agreement, the agreement shall be reduced to writing and signed by all parties and counsel of record. The attorney for the defendant shall submit the signed agreement to the judge assigned to hear the case, along with all other properly executed forms required for the court to accept the defendant’s guilty plea. Once it has been determined that all necessary paperwork has been submitted, the judge will schedule a virtual court hearing date and time and notice provided to all parties.

For Defendants on bond at time of Plea. If a defendant is not incarcerated, the attorney for the defendant shall contact his or her client and arrange for the client to appear at his or her attorney’s office AT LEAST 30 minutes before the scheduled time for the hearing or at some other location designated by the attorney. The attorney for the defendant shall verify that all necessary equipment and software are in proper working order prior to the time of the scheduled hearing, including the equipment the defendant will be using if the defendant is appearing at a location other than the attorney’s office. Either the judge taking the guilty plea or a member of the judge’s staff will connect with the defendant, the defendant’s attorney and the Cullman County District Attorney’s Office, (unless the District Attorney waives his right to be present) using Zoom software or other approved software. Once it has been determined by the judge that all necessary individuals are present and able to see and hear what is transpiring at the plea hearing, the judge shall proceed to take the defendant’s plea after first determining that the defendant consents to enter the plea by video conference, that the plea is freely, intelligently and voluntarily made and all other requirements for entry of the guilty plea have been satisfied. Where available, the official court reporter shall be present through-out the video conference proceeding and able at all times to see and hear the defendant who is entering a guilty plea and shall record the hearing just as though the hearing were conducted with all parties and counsel appearing in person. It shall be the responsibility of the prosecuting attorney to contact any victim that may require notification of the plea hearing and arrange for the victim to appear at the District Attorney’s office for the virtual court hearing or in such other location approved by the judge accepting the guilty plea.

If a plea agreement calls for a defendant to serve a jail or prison sentence, the Sheriff shall be informed in advance of the date, time, and physical location of the defendant at the time the plea is entered so that a deputy will be on hand to take the defendant into immediate custody. If the plea agreement calls for probation or an application for probation has been made, the defendant shall immediately report to his or her probation officer.

For Incarcerated Defendants. The general procedure outlined above for taking guilty pleas by video conferencing shall apply when a defendant is incarcerated in the Cullman County Detention Facility at the time of his or her guilty plea. The Cullman County Detention Center shall utilize Zoom software at its on-site video conference room, which the court hereby designates as a temporary courtroom, so that pleas can be taken without defendants being transported to the courthouse. Other video conferencing software may also be used at the discretion of the judge accepting the guilty plea. The attorney for the defendant may appear with the defendant at the detention center or may appear from another location, provided that the defendant’s right to communicate privately with his or her attorney is preserved. Each defendant entering a guilty plea shall be afforded an opportunity at any time during the plea to communicate privately with his or her attorney either in person or by use of a phone or video software that ensures confidentiality of the communication.

  1. Public Access to Some Criminal Proceedings. Because Alabama law recognizes the existence of a general First Amendment right of the public to have access to some criminal hearings, it is hereby ordered that any person may make a request for access to a criminal virtual court hearing that relates to matters that have traditionally been open to the public. The individual making the request shall be given permission to enter any virtual court hearing held in this circuit as a spectator only, unless the defendant or the State asks that the hearing be closed and “advances an overriding interest that is likely to be prejudiced” if the hearing is made open to the public. Press–Enterprise II, 478 U.S. at 7, 106 S.Ct. at 2739. Ex parte Birmingham News Co., 624 So.2d 1117, 1124–25 (Ala. Crim. App. 1993). 

An individual may request access to a criminal virtual court hearing by filing a written request with the court clerk. The individual making the request shall provide the court clerk with the defendant’s name, the case number, if known, as well as the requester’s e-mail address. Notice of the request shall be provided to the prosecutor and defendant and if no objection is filed within 14 days of the notice, the requester will receive an invitation to attend any virtual court hearing held in the case that involves matters that have traditionally been open to the public. If an objection is made by a party within the time provided, the court shall schedule a hearing to determine whether the request for access should be denied and the hearing closed to the public. The court also finds that there is a compelling reason to implement this special access rule due to the community safety threat posed by COVID-19 and finds that any burden placed on an individual by these procedures is substantially outweighed by the need to protect the public from further spread of COVID-19.

  1. Access in Civil Cases. Any person making a request to gain access to a virtual court hearing in a civil case may also use the same procedures described in the above paragraphs. After notice to all parties and an opportunity to be heard, the court will determine whether access to the civil virtual court proceeding should be permitted under existing laws.
  2. Audio, Video or other Technical Problems. If the judge presiding over a virtual court proceeding determines at any time that the audio or video connection is so poor as to interfere with the fair administration of justice, the hearing shall be postponed until such time as a better connection can be obtained or the matter can be set for an in-person court proceeding. However, it shall be the responsibility of a party or counsel for a party to promptly inform the court if there has been a disruption at their end of the communication that substantially interferes with his or her ability to see or hear what is occurring during the video conference. An objection to the quality of an audio conference or a video conference should be made at the time the connection is substantially impaired but must be made to the court on the record before the virtual court hearing has concluded. Any objection to the quality of the audio conference or video conference made thereafter, will be deemed untimely.
  3. It is ORDERED that the Circuit Clerk shall provide the Alabama Administrative Office of Courts with a copy of this Order and a copy shall also posted on the Cullman Courts official website and in such other places that are reasonably calculated to provide the public with notice of this order.

Done this the 6th day of April, 2020.

                                                                        /s/_Gregory A. Nicholas_________

                                                                        Gregory A. Nicholas

                                                                        Presiding Circuit Judge

                                                                        32nd Judicial Circuit

                                                                        State of Alabama

                                                       

 

 

                                                     

                                               IN THE 32ND JUDICIAL CIRCUIT

                                                        STATE OF ALABAMA

 

 

                                               ADMINISTRATIVE ORDER 2020-09

 

                         An Order Relating to In-Person Judicial Proceedings During Phase One

 

Pursuant to the authority granted to the presiding circuit judge of each judicial circuit of this State by Administrative Order No. 7 of the Supreme Court of Alabama dated May 13, 2020, the undersigned presiding circuit court judge finds it necessary to adopt the following procedures to minimize the risk of potential harm posed by COVID-19 to the health and safety of the general public and to court staff during in-person judicial proceedings. Therefore, after consultation with other judges of this judicial circuit, the District Attorney, the Cullman Circuit Court Clerk, and the Cullman County Commission, it is ORDERED that all in-person court proceedings, other than jury trials, will restart in this judicial circuit beginning May 18, 2020, subject to the following rules and procedures:

                                                            Definitions

“Courtroom” as used in this order refers to District Court courtroom number one, District Court courtroom number two, Circuit Court courtroom number one, and Circuit Court courtroom number two, as well as the areas immediately adjacent to those courtrooms.

“Court Clerk’s Area” as used in this order refers to magistrate interview rooms, court clerk’s counters or windows designated for the filing of court documents and receipt of court ordered monies, the waiting area adjacent to the clerk’s window or counter, and other rooms used for passport procurement, absentee voting, magistrate interview rooms, and other similar court clerk functions.

“Public Judicial Area” refers to witness and client interview rooms, the law library, and public bathrooms adjacent to those areas.

“Private Judicial Area” as used in this order refers to Circuit and District Court Judge’s chambers, each judge’s judicial assistant’s offices, each judge’s waiting room, jury rooms, court reporter’s offices, and private workstations and offices of the Circuit and District Court Clerks, and employee breakrooms and bathrooms. All private judicial areas shall be made non-accessible to members of the general public during Phase One.

Sick Individuals Prohibited Entry to Courtrooms and Judicial Areas

An individual who exhibits any of the symptoms associated with COVID-19 that have been recognized by the Centers for Disease Control (CDC), such as a cough or shortness of breath, or who has been instructed by a medical provider or government official to self-quarantine due to possible exposure to the COVID-19, may be denied entry into a courtroom by the judge presiding over any court proceeding in this judicial circuit. The presiding judge may likewise exclude individuals from any public or private judicial area or from the court clerk’s area if there is sufficient indication a person may be ill and pose a threat of transmitting that illness to others.

                                    Procedure When Access Denied to Courtroom

When an individual has been denied entry to a courtroom for a trial, hearing, or call docket as a result of suspected illness, the bailiff shall immediately inform the judge presiding over the court proceeding, and the judge shall determine whether the individual should be allowed entry or allowed entry under certain conditions, which may include requiring the individual who is suspected of being ill to wear a mask at all times or increasing the amount of social distancing between the individual and all others.

If entry is not permitted due to the suspected illness of a person, the judge presiding over the proceeding shall, after consultation with all counsel of record and any self-represented party, determine whether the judicial proceeding may proceed as scheduled or will need to be continued due to the absence of the person displaying signs of illness. If the person excluded is a party or material witness in a judicial proceeding, the judge presiding over the proceeding may also, after consultation with all parties and counsel of record, permit the individual suspected of being ill to appear at the judicial proceeding using videoconference technology as agreed to by the parties or as permitted by law or any administrative order of the Supreme Court of Alabama.

Procedure When Access Denied to Court Clerk’s Area or Other Public Judicial Area.

If access to a court clerk’s area or public judicial area is denied to an individual due to suspected illness, the bailiff shall immediately inform the presiding judge of this judicial circuit, and the presiding judge, in consultation with the circuit court clerk, shall determine whether the individual should be admitted or denied entry to the requested area or whether some other accommodation can be made that will not endanger the health and safety of others.

 

                                    Maximum Occupancy During Phase One

The maximum number of people admitted entry into a courtroom, court clerk’s area, or other public and private judicial area at any one time shall conform to guidelines adopted by the Supreme Court of Alabama in Administrative Order No. 7. Signs showing the maximum number of people permitted to assemble in a courtroom, court clerk’s area or other public or private judicial area at any one time shall be posted in plain view near each area. The court bailiff assigned to each courtroom, or such other individual(s) that may be designated from time to time by a circuit or district court judge, shall keep a count of each person entering and leaving the courtroom, court clerk’s area or other public judicial area, using an electronic or other counting device designed to keep track of individuals.  Once the maximum number of people allowed to enter a room or area has been reached, no other person shall be allowed entry except as provided herein. If a courtroom has reached its maximum occupancy, the judge presiding over the proceeding may consider moving the trial or hearing to a larger courtroom, if one is available or using nearby courtrooms as a waiting area.

If an individual appears seeking entry to a courtroom, court clerk’s area or other judicial area that has reached its maximum capacity, the bailiff, or other designated person having responsibility for maintaining proper social distancing in that area, shall inform the person that maximum occupancy has been reached and entry is not allowed until space becomes available. The bailiff, court clerk, or other designated person, shall either: (i) instruct the individual to wait on “stand here” social distancing markers located adjacent to each courtroom, (ii) instruct the person seeking entry to wait in a vacant courtroom or other designated waiting area, or (iii) if no waiting areas are available, obtain the name and cell phone number of the person and telephone him or her to return when space becomes available. If an individual who is called fails to return within 15 minutes from the time the call is placed, that individual forfeits his or her right to immediate entry but may request to be returned to a call waiting list.

 

Courtroom and Court Clerk Occupancy

Court Clerk’s Area.

A maximum of 12 people shall be allowed into the court clerk’s area at any one time. A designated court clerk shall keep a record of each person entering the court clerk’s area and when the number of people allowed entry equals the maximum number permitted for the area, no other individual shall be allowed entry until a person has first exited the court clerk’s area.

Only four individuals shall be allowed in the hallway adjacent to the court clerk’s payment and filing window at any one time and each must position himself or herself on a “stand here” social distancing marker affixed to the floor. If more than four individuals appear to speak to a court clerk or magistrate at any one time, each additional person shall be escorted by a court clerk to one of the two adjacent waiting rooms until the person can be assisted. Only four people at any one time shall be allowed in each of the two waiting rooms situated near the court clerk’s filing windows, and each person shall sit on or stand near social distancing markers that have been placed more than six feet apart in the waiting rooms. In all other publicly accessible rooms within the court clerk’s area, such as magistrate interview rooms and absentee voting rooms, all individuals must maintain a consistent social distance of six feet from each other and strictly adhere to all other safety protocols provided for herein.

     Courtrooms

In addition to the judge presiding over a judicial proceeding and two other court employees who may be present in a courtroom to assist with the proceeding, the maximum occupancy for each courtroom is as follows:

(i) District Courtroom number 1 .….……..……………………….……….16

(ii) District Courtroom number 2 ………………………………………….21

(iii) Circuit Courtroom number 1 ………………………………………….30

(iv) Circuit Courtroom number 2 ……...…………………….………….…16

A person wishing to enter one of the four courtrooms shall present a copy of his or her summons, court notice or subpoena, if available, to a bailiff or courthouse security officer at the time entry is sought. If a court notice or subpoena is not presented, a bailiff or security officer shall obtain sufficient information from the person seeking entry to determine the correct courtroom the person should report to or direct the person to a court clerk for additional information to determine the correct courtroom.

A court bailiff or other person responsible for maintaining social distancing rules, shall keep a record of each person entering a courtroom, and when the number of people allowed entry equals the maximum number permitted for the courtroom, no other person shall be allowed entry to the courtroom until a person leaves.

Judges are encouraged to communicate with one another regarding the scheduling of court dockets and, to the fullest extent practicable, coordinate dockets to enable the most efficient use of courtroom facilities. When a court docket is staggered, a nearby courtroom that is not needed for a judicial proceeding may be used as a waiting area, provided that all individuals within the waiting area sit or stand six feet apart, using social distancing markers affixed to the benches in each courtroom as a guide.  If a courtroom is going to be used as a waiting area, the judge presiding over a judicial proceeding that wishes to use a vacant courtroom as a waiting area shall notify the bailiff and courthouse security assigned to his or her courtroom so that when the judge’s courtroom has reached its maximum occupancy, any person seeking entry to the courtroom may be escorted or directed to the nearby courtroom that is being used as a waiting area.

                                                Priority for Courtroom Occupancy

In the event the number of people wishing to enter a courtroom exceeds the maximum number permitted by this administrative order, those individuals deemed essential to a judicial proceeding shall be given priority access to a courtroom. Judges, court staff, parties, counsel of record for each party, and witnesses shall be deemed essential in determining courtroom access. Spectators and others who are merely accompanying a party may be excluded from a courtroom if space is unavailable, except that parents or guardians of a minor or incapacitated adult may remain with the minor or incapacitated adult throughout any judicial proceeding. Individuals who are merely providing another person with transportation to the courthouse should remain in his or her vehicle or at some other location rather than attempting to enter a courtroom or other judicial area. Any occupancy issue that cannot be resolved by application of the foregoing shall be referred for resolution to the judge presiding over the docket call, hearing or trial.

Court Notices, Summonses, and Subpoenas

All court notices, summonses or subpoenas shall include the date and time of the proceeding, the name of the judge presiding over the proceeding and the courtroom number. The court notice, summons or subpoena shall also include an instruction for the individual receiving the court notice, summons, or subpoena to bring the document to the judicial proceeding to show courthouse security and a court bailiff when seeking entry to a courtroom. Individuals having a case set on a court docket may not be permitted entry into a courtroom until the time designated on his or her court notice.

     Courtroom Seating

Signs shall be posted in each courtroom reminding individuals to sit at least six feet apart from one another, except as otherwise provided herein. Social distance markings shall be placed a minimum of six feet apart on each courtroom bench to denote safe seating distances and signs shall be placed on each bench instructing individuals to sit only on the marked areas so as to maintain a proper social distance. Typically, this will permit a court bench to be occupied only by two individuals seated near each end of a bench so that social distancing rules are not violated when a person is leaving his or her seat. Notwithstanding the foregoing, individuals residing in the same household are not subject to these social distancing requirements and may sit closer together if they choose.

If rows of courtroom benches are not spaced at least six feet apart, every other bench in a row shall be roped off so that the bench is not available for use. Chairs in a courtroom shall be placed a distance of at least six feet from all other chairs or benches in the courtroom and shall be situated so that individuals traversing a courtroom aisle or passageway do not violate the social distancing requirements mandated by the Supreme Court of Alabama. Any excess seating shall be removed from a courtroom. Further, before court proceedings commence, bailiffs assigned to assist in each courtroom shall periodically announce that individuals must remain at least six feet apart from other individuals who are not residing together in the same household and explain the purpose of the social distancing markers being used.

Once a judicial proceeding has concluded, all participants shall promptly vacate the courtroom so that staff may sanitize the courtroom for the next proceeding. No individual shall loiter about the courtroom or the hallways adjacent to a courtroom or otherwise congregate after the proceeding has concluded.

Violations of Social Distancing Rules

 It shall be the responsibility of each bailiff assigned to a courtroom to remind those in attendance of the social distancing protocols mandated by this court order and, if necessary, report violations of the order to the appropriate judge. An individual found to have willfully violated any provision of this order, including social distancing rules, may be held in contempt of court and punished accordingly.

 

   Masks

It is recommended that all individuals entering a courtroom, court clerk’s area, private judicial area, or public judicial area wear a mask for his or her own protection and for the protection of others. Masks shall be worn by courtroom bailiffs and any other person involved with a judicial proceeding as may be directed by the judge presiding over the proceeding.  Masks worn into court proceedings shall not contain writing or any image that would be inappropriate for a courtroom setting. When mask use is required by this order or the order of a judge presiding over a judicial proceeding, the mask shall at all times completely cover the mouth and nostrils of the person who is wearing the mask.

         Social Distancing

All individuals entering a courtroom, court clerk’s area, or other public judicial space, including hallways adjacent thereto, shall consistently maintain social distancing of at least six feet between individuals, as recommended by the CDC and as ordered by the Supreme Court of Alabama.

                                               Hallways

            No individual shall stand, congregate or loiter in any hallway adjacent to a courtroom or court clerk’s area, except as otherwise herein provided. Hallways shall be used only for ingress and egress to a courtroom or to a court clerk’s area, subject to permitted exceptions. When entering a courtroom or court clerk’s area, individuals shall at all times maintain a social distance of at least six feet from each other person, using social distancing “stand here” markers on the floor as a guide.

 

 

                                                Stairways and Elevators

            At the direction of the Cullman County Commission, only one person at a time shall be permitted to use an elevator, except that individuals who are living in the same household may use the same elevator. To maintain social distancing, the Cullman County Commission also has directed that stairways be used to travel in one direction only. The center stairwell of the courthouse has been designated by the Cullman County Commission as an “up” stairway and the stairways located at the north and south ends of the courthouse are designated as “down” stairways. Signs with arrows showing the direction of travel have been posted at stairway entrances on each floor of the courthouse and also on the walls at each stairway landing to inform the general public and individuals who work in the courthouse that the stairways are to be used for one-way travel only. The direction of travel may be altered by the Cullman County Commission in the future based on traffic use patterns. All individuals seeking entry or leaving a courtroom, court clerk’s area, or other public or private judicial area shall adhere strictly to the stairway procedure now in use or hereinafter adopted by the Cullman County Commission.

Personal Protective Equipment

All court clerks and judicial employees shall be provided masks and disposable gloves. Masks shall be worn by all court clerks and judicial employees whenever a court clerk or judicial employee has any in-person interaction with the general public and may be worn at any other times. Plexiglass or other clear screens shall be erected at all court clerk payment and filing counters and also in magistrate interview rooms and similar locations to provide a clear barrier between judicial employees and members of the general public or law enforcement officials who are seeking warrants, filing absentee ballots, who are seeking passports or otherwise seeking to avail themselves of any other judicial service requiring in-person contact with a court clerk, magistrate or judicial employee. To the extent practicable, plexiglass or other similar barrier shall be erected around each court clerk’s workstation of a sufficient height and width to prevent or inhibit transmission of the COVID-19 virus. Further, each judge may determine whether it is practicable or desirable to erect a plexiglass or other clear screen between a court reporter, the judge or other judicial employee, and other participants in a judicial proceeding in his or her courtroom.  

       Sanitizing Stations

Hand sanitizing stations containing a solution that is at least 60% alcohol shall be set up at the entrance to each courtroom, in the court clerk’s area and at various locations within each public judicial area.  Signs also shall be posted at conspicuous locations near the courtroom entrance, court clerk’s area, and other public judicial areas reminding individuals to wash their hands frequently and encouraging them to use hand sanitizer upon entering a courtroom, court clerk’s area, or any other public judicial area.

 

     Trial and Evidentiary Hearing Protocol

Lawyers, parties, witnesses, and all others in attendance at a judicial proceeding shall maintain a consistent distance of at least six feet from all other individuals who are present. To further limit the transmission of COVID-19, customary handshakes or similar greetings that do not conform to social distancing rules shall not be permitted in the courtroom before, during or after in-person court proceedings.

  On Call Witnesses

Attorneys and self-represented parties are strongly encouraged to place witnesses who will not be needed when a trial or hearing begins “on call” so that courtrooms and waiting areas do not exceed the maximum occupancy allowed pursuant to this administrative order. However, to avoid needless trial delays caused by a witness who has not yet arrived, each “on call” witnesses should be telephoned sufficiently in advance of his or her testimony so that a witness arrives shortly before his or her testimony is needed. Where feasible, the witness may report first to the office of the attorney who requested the witness to appear and wait at the office until it is time to testify.

   Communication between client and attorney

When communication is desired between a party and his or her counsel during a court proceeding, notes may be exchanged. If notes are insufficient to adequately communicate, counsel may request a brief recess to communicate confidentially with his or her client in a nearby private interview room.

   Exhibits

All exhibits shall be pre-marked before a judicial proceeding begins. Disposable gloves shall be available in each courtroom for use by all individuals present. An exhibit shown to a witness or offered into evidence shall only be touched by an individual who is wearing disposable gloves and the gloves shall be removed and disposed of according to guidelines adopted by the CDC when no longer needed. Further, an exhibit shall not be handed directly to a judge, witness, party, or to opposing counsel, but shall be placed on a table or other surface for retrieval and examination so that continuous social distancing is maintained.

 

Masks

If an individual is wearing a mask during a judicial proceeding, the court may require that the mask be temporarily removed: (i) for identification purposes, (ii) if the mask substantially interferes with the ability of the judge, parties, lawyers or court reporter to understand the witness, or (iii) if wearing the mask prevents an authorized recording device from accurately recording what is being said by an individual who is speaking.  

 

                                       Jury Trials and Large Docket Calls.

By order of the Supreme Court of Alabama, no criminal or civil jury trials will be conducted until September 14, 2020. Further, the number of individuals ordered to attend a court docket shall not exceed the maximum number permitted for the courtroom where the judicial proceeding will be held. Provided, however, that judges may use a nearby courtroom as a waiting area if it is not needed by another judge and is otherwise available. The maximum occupancy for a courtroom used as a waiting area shall not be exceeded and all those in attendance shall fully comply with social distancing requirements while waiting. Nothing herein shall be construed to limit the right of a judge to stagger court dockets, which practice is encouraged and promotes the best use of limited judicial resources.

 

Cleaning Requirements

Frequently touched surfaces including, but not limited to, courtroom benches, tables, doorknobs, light switches, writing instruments used by the general public, seats, witness stands, computer keyboards, countertops at the court clerk’s filing and payment window, tables, chairs, and all surfaces frequently touched in courtrooms, the court clerk’s area, and other public and private judicial areas shall be sanitized by cleaning staff or court staff at regular intervals throughout the day, depending on use. At a minimum, each courtroom shall be sanitized according to CDC recommendations at the conclusion of each court proceeding and before individuals involved with the next proceeding are allowed entry into the courtroom. All chemicals used to sanitize and disinfect surfaces must meet standards adopted by the CDC or the Alabama Department of Public Health as adequate to kill infectious agents, including COVID-19.

 

                                      Video Conference Use For Those At Risk

            Those individuals more than 65 years of age, having an underlying health condition that makes them more susceptible to COVID-19, or who is otherwise classified as a “vulnerable person” or subject to quarantine under the Safer-at-Home Order entered by the State Health Officer, may file a request to appear using videoconference technology that has been approved by the court. The testimony of a person appearing by use of videoconference technology may be considered by the court pursuant to an agreement of the parties to the proceeding or as otherwise allowed by the rules of court or authorized by the Supreme Court of Alabama.

 

                           Court Clerk’s Offices Not Accessible to General Public

No person shall enter the non-public offices of court clerks except as expressly authorized by the Circuit Court Clerk. Workstations used by court clerks shall be spaced at least six feet apart or separated by a barrier and each clerk shall consistently maintain the required social distance from other clerks throughout the workday, including breaks. Further, masks shall be made available to each clerk and disposable gloves shall be provided to a clerk when his or her duties require the handling of documents, money, checks or other physical objects received from the public. After use, disposable gloves shall be removed and disposed of according to CDC guidelines.

Warrants and other Court Clerk Business

Whenever it is necessary for a clerk or magistrate to have contact with a member of law enforcement or any member the public in an area where there is no glass screen or sneeze guard separating the clerk or magistrate from another individual, the meeting shall occur in a room designated for that purpose and the clerk or magistrate shall wear a mask during the interaction. Further, all individuals in the room must maintain a social distance of at least six feet from one another at all times. If documents or other physical objects will be exchanged or handled by the individuals present, disposable gloves shall be provided and worn by all those touching the document or physical object and the gloves shall be removed and disposed of according to CDC recommendations when no longer needed.  

 

Virtual Court Hearings

Virtual court hearings provide the best social distancing tool available to the courts for limiting the transmission of the COVID-19 virus and may be used at the discretion of a trial judge in all instances when practicable and permitted by statute, rules of court, or administrative order of the Supreme Court of Alabama. A virtual court hearing shall be held in every case in which all parties to the action have filed a written request asking for a specific judicial proceeding to be conducted as a virtual court hearing, provided the parties have unanimously agreed to the virtual court hearing procedures adopted by the Supreme of Alabama or as otherwise permitted by law.

 

                                                   Posting of Public Notices

Signs displaying the maximum occupancy for each courtroom shall be posted in a conspicuous place near the entrance to each courtroom. In addition, the following notice shall also be posted outside the entrance of each courtroom and at the Circuit Court Clerk’s payment and filing counter:

“No one who is experiencing symptoms consistent with COVID-19, or who has been advised to self-quarantine by a medical provider or government official shall enter a courtroom, court clerk’s area, or any other judicial area. Further, every individual is required to maintain a minimum distance of six feet from all other individuals while in a courtroom, the hallways adjacent to courtrooms, the court clerk’s area and in all other judicial areas, except for individuals residing in the same home. Failure to abide by these social distancing requirements may subject a person to being held in contempt of court.”

 

Social distancing signs reminding individuals to maintain a distance of at least six feet from others shall also be posted at regular intervals in the hallways adjacent to courtrooms, inside courtrooms, near the court clerk’s area and all other public judicial areas. In addition, signs shall be placed near courtrooms and other publicly accessible areas encouraging the public to frequently wash their hands and to use hand sanitizing stations before entering a courtroom, the court clerk’s area or any other judicial area.

The Circuit Court Clerk shall post a copy of this order on the court’s official website, cullmancourts.org and shall also provide a copy of this order to the Alabama Administrative Office of Courts.

            Done this the 13th day of May, 2020.

  

/s/_Gregory A. Nicholas___________

Gregory A. Nicholas

Presiding Circuit Judge

32nd Judicial Circuit

State of Alabama

                                                IN THE 32ND JUDICIAL CIRCUIT

                                                      STATE OF ALABAMA

 

                                         ADMINISTRATIVE ORDER 2020-12

 

                        An Order relating to the Empaneling of Grand Juries during 2020

 

 

WHEREAS, COVID-19 is a disease that is widely recognized to pose a serious threat to the health and welfare of the general public, and

WHEREAS, on March 13, 2020, Governor Ivey declared a state public health emergency due to the spread of COVID-19 within the State of Alabama, and

WHEREAS, effective March 16, 2020, in an effort to limit the transmission of COVID-19 and protect the health of court employees and the general public, the Supreme Court of Alabama entered an administrative order temporarily suspending most in-person court proceedings; and

WHEREAS, on April 30, 2020, the Supreme Court entered Administrative Order No. 6 that prohibited jury summons from being issued until at least July 1, 2020, which effectively prevented the empaneling of new grand juries; and

WHEREAS, pursuant to the May 13, 2020 Administrative Order No. 7 entered by the Supreme Court of Alabama, all jury trials in this state remain suspended until at least September 14, 2020; and

WHEREAS, Administrative Order No.7 of the Supreme Court of Alabama grants presiding circuit judges in each of Alabama’s judicial circuits the authority to determine when to resume most in-person judicial proceedings and expressly authorizes each presiding judge to continue restrictions of in-person court proceedings until at least August 15, 2020; and

WHEREAS, on July 2, 2020, Governor Ivey extended the state of emergency in Alabama until at least September 9, 2020 due to the continuing spread of COVID-19, and

WHEREAS, Section 12-16-190 of the Code 1975 requires that at least four grand juries be empaneled each year in counties having a population of more than 50,000, which would include Cullman County, Alabama; and

WHEREAS, the Supreme Court of Alabama has previously held in Wyres v. State, 32 Ala.App. 630, 29 So.2d 155 (1947), that “the provisions [of Section 12-16-190] for the selection, drawing, summoning, or impaneling of jurors are directory merely, and not mandatory” and that some discretion is vested in a circuit court to determine the number of grand juries to be empaneled in certain circumstances; and

WHEREAS, at common law the term of a duly impaneled grand jury continues until dissolved by order of the court and there appears to be no statue or rule of court that abrogates the common law rule; Now, therefore, in consideration of the foregoing,

It is hereby ORDERED as follows:

  1. Any Cullman County grand jury currently empaneled in the 32nd Judicial Circuit shall remain impaneled pending a court order that expressly dissolves the grand jury. Further, it is ORDERED that the presently empaneled grand jury sitting in Cullman County, Alabama shall remain subject to recall to consider any and all matters which may properly be brought before a duly empaneled grand jury sitting in the State of Alabama.
  2. The undersigned further finds that as a result of the administrative order of the Supreme Court of Alabama that limited the local court’s ability to summon and empanel a new grand jury, and because the COVID-19 pandemic continues to pose a serious and on-going threat to the health of Cullman County residents, that it is not practicable or desirable to summon and empanel four separate grand juries in Cullman County, Alabama during this calendar year. Therefore, it is hereby ORDERED that fewer than four grand juries may be empaneled in Cullman County, Alabama during the year 2020 and that empaneling one grand jury for 2020 constitutes substantial compliance with Ala Code Section 12-16-190 (1975), in light of present circumstances.

Done this the 27tth day of July, 2020.

 

 

                                                           

                                                                        /s/_Gregory A. Nicholas___________

                                                                        Gregory A. Nicholas

                                                                        Presiding Circuit Judge

                                                                        32nd Judicial Circuit

                                                                        State of Alabama

 

 

                                                     

                                                      IN THE 32ND JUDICIAL CIRCUIT

                                                           STATE OF ALABAMA

 

 

                                                        ADMINISTRATIVE ORDER 2020-11

An Order Relating to Electronic Juror Selection and Qualification

 

 

Whereas, Rule 46, Alabama Rules of Judicial Administration, has recently been amended to permit electronic selection and qualification of potential jurors through an internet-based data processing program maintained by the Administrative Office of Courts; and

Whereas, Rule 46 Alabama Rules of Judicial Administration grants discretion to the presiding circuit judge of each judicial circuit in this State to authorize such electronic selection and qualification of potential jurors, subject to the provisions of Rule 46;

Now, therefore, it is hereby ORDERED that after the date of this order, each juror summons issued for a jury trial to be held in the 32nd Judicial Circuit of the State of Alabama shall include instructions for a prospective juror to, if possible, electronically verify his or her qualifications to serve on a jury through a centralized internet-based data-processing program maintained by the Administrative Office of Courts ("AOC").

 

Verification of Qualifications to Serve as Jurors

Each prospective juror completing an electronic juror qualification form, as adopted by the Alabama Administrative Office of Courts, shall declare, to the best of his or her ability, that he or she meets each of the following qualifications to serve on a jury in this judicial circuit:

(1) Is a citizen of the United States, has been a resident of Cullman County for more than 12 months, and is 19 years old or older;

(2) Is able to read, speak, understand, and follow instructions given by a judge in the English language;

(3) Is capable by reason of physical and mental ability to render satisfactory jury service and is not afflicted with any permanent disease or physical weakness whereby the prospective juror is unfit to discharge the duties of a juror even with reasonable accommodation;

(4) Has not lost the right to vote by conviction for any offense involving moral turpitude; and

(5) Does not display any signs and symptoms associated with diseases known to be transmitted through respiration;

 

Sworn Verification of Qualifications Required

          It is further ORDERED that, upon the completion of an electronic form showing his or her qualifications to serve on a jury, each prospective juror shall be required to affirm or disaffirm the following oath:

"Do you solemnly swear (or affirm) that you have well and truly answered all questions propounded to you touching on your qualifications as a juror, so help you God?"

 

A prospective juror that affirms the required oath shall indicate his or her affirmation of the oath by electronically signing his or her name to the oath and returning it according to the instructions provided. The electronic signature contained on the electronic juror qualification form adopted by AOC shall constitute a sworn acknowledgment by the individual who is electronically signing the form as to the truth of the declarations contained therein. The receipt and acceptance of a qualified prospective juror's affirmation of the above oath by the clerk of court or a circuit court judge sitting in this judicial circuit shall be deemed an acknowledgment of the prospective juror's affirmation of the oath.

 Electronic Signature Authorized.

The electronic signature of a prospective juror shall conform to the requirements of Rule 30(G) of the Alabama Rules of Judicial Administration or as otherwise authorized by the rules or statues adopted in this State for the use of electronic signatures.

Qualification of Prospective Jurors.

The receipt and acceptance of a prospective juror's affirmation of the oath by the clerk of court or by a circuit judge sitting in this judicial circuit shall be deemed an acknowledgment of the prospective juror's affirmation of the oath. However, even if an affirmation of the oath has been received electronically prior to the day prospective jurors are instructed to appear for court, a judge shall orally question prospective jurors regarding their qualifications to serve as jurors in this juridical circuit before voir dire begins to ensure that all prospective jurors continue to meet the minimum requirements to serve.

Disqualification of Prospective Juror.

If a prospective juror completing an electronic juror qualification form does not meet the minimum qualifications for serving as a juror or disaffirms the oath, the clerk or the court shall notify the prospective juror that he or she is not qualified to serve on a jury and/or inform the prospective juror that his or her service is not required.

Other Methods of Verification of Qualifications to Serve as Juror

If a prospective juror is unable or elects not to electronically verify his or her qualifications to serve as a juror in this judicial circuit as set forth in this order and as authorized by Rule 46, Alabama Rules of Judicial Administration, the court may determine the prospective juror's qualifications to serve on a jury as otherwise provided by law and, if qualified, shall administer the oath to the prospective juror as otherwise provided by law.

The Circuit Court Clerk shall post a copy of this order on the court’s official website, cullmancourts.org and shall also provide a copy of this order to the Alabama Administrative Office of Courts.

            Done this the 15th day of July, 2020.

  

/s/_Gregory A. Nicholas___________

Gregory A. Nicholas

Presiding Circuit Judge

32nd Judicial Circuit

State of Alabama

 

 

 

                                               IN THE 32ND JUDICIAL CIRCUIT

                                                       STATE OF ALABAMA

  

                                           ADMINISTRATIVE ORDER 2020-013

 

                                  An Order Relating to Resumption of Jury Trials

 

WHEREAS, the order of the Supreme Court of Alabama restricting jury trials until September 14, 2020 will soon expire; and

WHEREAS, the right to jury trial is guaranteed by both the United States Constitution and the Alabama Constitution; and

WHEREAS, COVID-19 remains a serious threat to the health of the general public and is expected to persist for at least the next several months. Therefore, the court finds it necessary to adopt and implement additional safety procedures to minimize the risk of potential harm posed by COVID-19 during jury trials until such time as the pandemic subsides.

NOW THEREFORE, It is therefore ORDERED:

          The Provisions of Administrative Order 2020-09 are applicable to jury trials

The safety protocols previously adopted by the court in local administrative order 2020-09 for the resumption of in-person judicial proceedings shall apply to all jury trials unless the context clearly indicates otherwise. In addition to the procedures adopted for in-person judicial proceedings, the following additional procedures are also adopted for jury trials.

                        Priority Plan for Jury Trials during the COVID-19 Pandemic

Pending further court order, only one jury trial shall be held at any one time in this judicial circuit. Further, all jury trials shall be held in the largest available courtroom, circuit courtroom number one.   Potential jurors summoned may be impaneled for the trial of either criminal or civil cases and combined criminal and civil jury dockets may be set for trial during any jury session. However, criminal cases shall be given priority for jury trial purposes and those individuals charged with criminal offenses who have been unable to make bail shall be tried before those individuals who have been released on bond. If there are no criminal cases ready to proceed to trial when called, the court will call civil cases for trial that have been set on the docket, beginning with the oldest civil case that has not been continued.

                                  Adoption of Online Jury Qualification System

An online jury qualification system has previously been adopted in this judicial circuit as permitted by Rule 46, Alabama Rules of Judicial Administration. Each juror summons issued for a jury trial to be held in the 32nd Judicial Circuit of the State of Alabama shall include instructions for a prospective juror to, if possible, electronically verify his or her qualifications to serve on a jury through a centralized internet-based data-processing program maintained by the Administrative Office of Courts (AOC).

                                     Notice to individuals who have qualified online

Ten days before the date potential jurors have been ordered to appear for jury service, the court clerk shall email those individuals who have qualified online and inform them they have successfully qualified to serve as jurors. The email shall also inform the individuals that they do not need to appear at 8:00 a.m. as instructed in the summons previously mailed to them. Instead, the individuals who qualified online shall be instructed to appear in circuit courtroom number one at 9:30 a.m. on the date indicated on their jury summons. Any potential jurors that qualify online after the email has been sent shall also be emailed and notified of their new reporting time. See appendix “A” for examples of emails to be provided.

 Jury Qualification and Orientation for Potential Jurors who do not use the online electronic qualification system

 

Individuals summonsed for jury service that have not qualified online because they do not have internet access or for any other reason shall appear at 8:00 a.m., on the Monday of their jury service, as instructed in their summonses, and the court will proceed to qualify them for jury service, explain the nature of their duties and hear requests to be excused.  

In the event more than 36 potential jurors appear for the morning session, only the first 36 shall be admitted entry to circuit courtroom number one. Those individuals who have received summonses to appear at 8:00 a.m. that cannot be allowed to enter circuit courtroom number one due to social distancing requirements shall be escorted to circuit courtroom number two and another judge will proceed to qualify those individuals as provided by law, explain the nature of their duties, and hear requests to be excused. Once all individuals in this group have been qualified and sworn, they shall be escorted to circuit courtroom number 2 and instructed to wait until their Jury Panel assignments have been made.

If seating capacity in circuit courtroom number 2 is insufficient to adequately socially distance the individuals in this group, alternate seating shall be provided in a different courtroom or other area of the courthouse. Prior to an individual being seated in a courtroom or other courthouse waiting area, the room shall be thoroughly sanitized according to the procedures adopted herein.

                           Random selection of potential jurors for jury venire panels

Immediately after the conclusion of the 9:30 a.m. docket call when he number of potential jurors present and eligible for jury service has been determined, the circuit court clerk shall compile a master list containing the names of all qualified potential jurors and shall randomly select 36 jurors for Panel A, 36 jurors for panel B, if numbers are sufficient and the remainder, if any, for Panel C.

                                                     Notification of Panel Assignment

All individuals that reported for jury duty on the date provided in their summonses shall be informed of their panel assignments as soon as they have been determined. Those individuals assigned to jury Panel B or C shall be informed they are being placed “on call” for possible jury service later in the week and may leave the courthouse for the remainder of the day. Before departing, individuals assigned to Panel B or C shall also be instructed to either: (1) check the official court website at cullman.alacourt.gov under the “juror reporting instruction” sometime after 5:00 p.m., that day or (2) call the juror information telephone number, (256) 775-4940, for their updated reporting instructions sometime after 5:00 p.m. that day.                                                    

The individuals assigned to Panel A shall be instructed to remain in the courthouse while circuit courtroom number 1 is being sanitized and to return to the courtroom at a designated time later that morning for jury selection.  As individuals assigned to Panel A return to the courtroom, the court clerk shall assign each of them a seat for jury voir dire. When the panel has been assembled, jury selection shall commence as provided by law.

                        Courtroom seating during Jury Orientation and Voir Dire

Before circuit courtroom number one is opened for the public to use on the morning jury trials are set to begin, all seats and frequently touched surfaces in the courtroom shall be sanitized with a solution designed to kill the COVID-19 virus. To ensure proper social distancing, no more than three potential jurors will be seated on a courtroom bench and each seat will be plainly marked with a unique number that will be assigned to potential jurors as they are checked in for jury service. Every assigned seat will be spaced at least six feet from other individuals and every other bench will remain empty and roped off in such a manner to clearly show that it may not be used for seating.  As each potential juror is checked in by a designated court clerk, the potential juror shall be assigned a seat and immediately directed to his or her assigned seat.

Potential jurors may remove their mask when seated, if they wish to do so and provided there is no state law in effect at the time of jury service that requires a mask even when seated at least six feet from others. However, all potential jurors must wear a mask during any recess and any other time they are unable to maintain a distance of at least six feet from others. Once all potential jurors that have not qualified online have been checked in for the morning session, the judge will proceed with jury orientation and qualification of the jury. After jury orientation and qualification has concluded and all potential jurors have left, the courtroom seats that are to be occupied by potential jurors for the later afternoon voir dire shall be sanitized again before any potential juror will be permitted entry to the courtroom.

                                                Newly Configured Jury Box

Because a traditional jury box would not allow jurors to maintain a consistent social distance of at least six feet from one another, the west side of the courtroom gallery shall be converted to a jury box during a jury trial. No more than three jurors shall be permitted on a bench and each juror shall be seated six feet apart from other jurors. To maintain this minimum six feet of distance between jurors, every other bench shall remain empty. 14 seats, spaced at least six feet apart, shall be clearly marked in the jury box with a number from 1-14 so that each juror and any alternate(s) selected may be assigned seats. Immediately after the jury is impaneled, the circuit clerk shall assign each juror a seat in the jury box, giving due consideration to any disability of a juror, and each juror shall be promptly informed of his or her assigned number and instructed to sit only in the seat so assigned. Whenever a juror leaves his or her seat and is no longer able to maintain a consistent six feet of separation from others, the juror must wear a mask covering his or her mouth and nostrils.

The new jury box shall be separated from the remainder of the public gallery by a rope or some other barrier designed to keep members of the general public a distance of at least ten feet apart from every juror and a court official shall be stationed between the jury box and the seats available to the general public to insure that no communication or comments are made by the public that could be heard by a juror.

                                                          Jury Room

                                    Circuit Courtroom Two designated as jury room

Because the traditional jury room is not large enough to permit each person to maintain a consistent social distance of at least six feet from other jurors, the court finds it necessary that circuit courtroom number two be used as a jury room during recesses and jury deliberations during the present COVID-19 crisis. Circuit courtroom number two shall be closed to the general public any time that a jury has been impaneled in this judicial circuit. The glass portion of any door leading into circuit courtroom number two shall be covered to prevent any person standing outside of the courtroom from viewing the inside of the courtroom. It is further ordered that during any jury recess or deliberation that a court officer shall be stationed outside of the entrance to make sure no unauthorized person enters or lingers about the entrance. White noise machines shall also be used outside of circuit courtroom number two, if necessary, to prevent any individual outside of the courtroom from hearing what is being said during jury deliberations.

                                    Sanitizing of Jury Room

Jury room seats, frequently touched surfaces and all writing utensils provided to jurors shall be thoroughly sanitized with a disinfectant sufficient to kill the Covid-19 virus before jurors report each day and also after the jurors depart for the day. In addition, a contactless hand sanitizing station shall be made available in the jury room and jurors encouraged to frequently use the hand sanitizer.

                                    Assigned Seating in Jury Room

14 seats, spaced at least six feet apart, shall be clearly marked in the new jury room with a number from 1-14 so that each juror and any alternate(s) selected may be assigned seats during any times the jurors or alternates may be present in the jury room. Immediately after the jury is impaneled, the circuit clerk shall assign each juror a seat in the jury room, giving due consideration to any disability of a juror, and each juror shall be promptly informed of his or her assigned number and instructed to sit only in the seat so assigned.

                                                 Handling of Exhibits

No exhibit shall be handled by jurors during the trial. During deliberations, exhibits that have been allowed into evidence may only be handled by a juror after putting on disposable gloves, which shall be made available to jurors in the jury room. After use, the gloves shall be discarded according to CDC guidelines.

 

                             Jurors shall be informed of COVID-19 procedures

At the time preliminary instructions are given to a jury, the judge presiding over a trial shall inform the jury of the COVID-19 safety procedures adopted herein. Further, the jurors shall be instructed to immediately raise a hand if, at any point during a trial, a juror is having difficulty hearing a witness, an attorney, or the court so that corrective measures may be taken.

                                                            Witnesses

All witnesses testifying during a jury trial shall be seated in full view of the jury, but at least 6 feet from all other individuals in the courtroom. A microphone shall be positioned directly in front of where the witness is seated, and an audio system employed that is of sufficient amplification and quality for the jury and all other court participants to hear the testimony of the witness. If a witness wishes to wear a mask during his or her testimony the witness shall be provided a clear shield mask that allows attorneys and jurors to fully observe the demeanor of the witness while testifying. Immediately after a witness testifies and leaves the witness stand, the court attendant shall sanitize the witness seat and surrounding area before the next witness is allowed to be seated.

                                                            Lectern

A lectern equipped with a microphone connected to the courtroom public audio system shall be used by attorneys during a jury trial whenever an attorney is questioning a witness or addressing the jury. The lectern shall be placed at least six feet from other individuals and shall face the jury and the new witness stand.

                                  Communication between client and counsel during trial

Counsel and client may communicate with one another during a jury trial by passing notes, provided that each of them wears disposable gloves, or through the use of instant messaging with an electronic device approved by the court.

                                           Judge’s microphone and audio

            A judge presiding over a jury trial shall speak into a microphone situated on the bench that is connected to an audio system that is of sufficient amplification and quality for all those present in the courtroom to clearly hear him or her during the course of a jury trial.

                                                      Bench Conferences

            Because it is not practicable for a judge and counsel to maintain a proper social distance from one another during a bench conference, bench conferences will not be allowed during the present COVID-19 pandemic. Any request for a conference to discuss evidentiary or procedural matters that should not be discussed in the presence of a jury shall be made during a recess or court adjournment.

                                    Adoption of additional safeguards

A judge presiding over a jury trial shall have discretion to implement additional safety measures if he or she deems those measures necessary for the protection of jurors or other court participants.

Done this the 11th day of September 2020.

                                                                        /s/_Gregory A. Nicholas___________

                                                                        Gregory A. Nicholas

                                                                        Presiding Circuit Judge

                                                                        32nd Judicial Circuit

                                                                        State of Alabama

 

 

  

  

                                                              APPENDIX A

 

E-mail to all individuals who qualified online (to be sent 10 days before jury selection begins)

 

Thank you for qualifying as a juror for the [DATE OF SUMMONS] jury docket. Your service is important and very much appreciated! Since you have qualified online, you will NOT need to appear at 8:00 a.m. on September 14, 2020 as ordered in the juror summons previously mailed to you. Instead, you will report to circuit courtroom number 1 at 9:30 a.m. on the date indicated in your jury summons.