Ray Cassar has specialized in criminal defense for 35 years and has handled a variety of criminal cases all over Michigan in both state and federal courts. Earlier in the year, he spoke with John Swift and me about what it has been like defending criminal cases during the pandemic and has some practical tips for other criminal defense attorneys.
Transcript
John Swift: Hello, my name is John Swift from ICLE.
Max Matthies: Hello, my name is Max Matthies from ICLE.
Ray Cassar: And my name is Ray Cassar. I'm a criminal defense attorney for the last 35 years. I practice out of Farmington Hills, but I'm all over the tricounty area. And I'm glad to be here.
John: Well, we're really happy to have you and to be able to talk to you today, Ray. You have been doing criminal defense for a while. Obviously with the pandemic, for the last six months, everything's gone remote. You have to keep doing your hearings and keep representing people. How has that been going? I'm sure it's a new thing. I know when I was in practice, I hadn't ever done a remote hearing. What's it been like?
Ray: It's been a challenge. It truly has. For all the claimed benefits of Zoom hearings, the biggest benefit is the lack of travel. You're doing it from your office or from your home or from your laptop or from your actual iPhone. The downside to this, as far as I'm concerned, is the difficulties with Zoom. There are really no consistent protocols amongst the courts. And I've done Zooms in many, many different courts, including federal now. And you know, everyone's got their own procedures. Some have to require a password, and they don't give you the password until the day before. So you're going to be checking your email like crazy, because otherwise you're trying to log in, you don't have a password, and you're calling the court. Nobody's answering at the court. There are still a lot of technical difficulties with Zoom.
John: Okay.
Max: We know that some of the courts are streaming this on YouTube. What are your thoughts about that?
Ray: It's a little bit uncomfortable, right? Some of the really good judges are saying, you know, do you consent to this, and they ask your client, and your client consents to this. And then they give that warning that this is also being streamed on YouTube. And it is a little uncomfortable, because you've got to be careful what you say, right? There's really no way of approaching the judge as in a regular courtroom saying, Judge, can we speak? Can we talk off the record just for a moment about this? You've got to be very, very careful because it's being recorded and it's being livestreamed, so people can access it later on. And they're hearing what's going on. And if they want to follow it, they can follow it.
Max: Right.
John: It’s probably worth mentioning that you commented on one of our blog posts that was some advice that a few judges around the state have had about what they wanted to see from attorneys in their courtroom. And the thing they kind of harped on a little bit is people dressing appropriately and taking the hearing seriously and so forth. It brings up the idea that courtroom etiquette has changed now. I was watching a hearing this morning; some of the litigants were in their car, they were shopping, whatever. And so the idea of etiquette seems to get a little bit gray. I was kind of curious—you obviously want to show the court that you're taking things seriously, because you are. How does that play into how you present your case, when you are in the Zoom hearing?
Ray: It's an excellent question. And I think that you're absolutely right. Because it's over video, people, including attorneys, don't all take it real seriously. I mean, I've been to Zooms where there have been 50 people, literally 50 little pictures of people that are all waiting, right? And you would think that we're all hanging out at some sort of a party. Everyone is interrupting everyone. “Hey, my case is ready.” “Hey, my case is ready." “Hey, I checked in, you know, 20 minutes early.” And you can look around and you can see—I actually saw an attorney smoking a cigarette, and he didn't have a suit on, and it’s his business and stuff. But you're right—the etiquette. We have to remember this is a court proceeding. I tell my clients, “dress like we're going to court; you're going to be seen on this video. We want the judge to take you seriously. I'm going to dress neat. So you need to dress neat.” Now, obviously, from the waist down, they can wear whatever they want, pajamas. I'm sure many attorneys, Max and John, are doing just that—wearing pajamas from the waist down. But I think that there is a problem with the lack of etiquette. I don't think it's an overwhelming problem, but it's there. But the biggest issue that I've seen is on some of the huge Zooms where it's just uncontrolled. Where you're all checking in at 8:30, for your hearing at 8:30. And there's literally 50 people in the screen. People are angry, right? “Hey, when's my case going to be called?” “When's my case going to be called?” “When's my case going to be called?” And they don't mind interrupting and saying, “hey, Judge, I'm here. And I've been waiting since such and such.” Things that you probably wouldn't see normally in the courtroom. People forget that they are still supposed to be respecting the court. And I get it. There's a lot of frustration. So I think that we have the two types. John. We have the types where they say, “okay, your hearing is going to be a 10:15. Please check in no earlier than five minutes before 10:15.” And oftentimes, they go smooth. At 10:15 you are admitted, your client’s admitted. And you know what, in five minutes, you're out, you're done. That case has been taken care of. And then we have the judges that have absolutely no clue as to what's going on or how to do these. And everyone's checking in for 8:30 hearing. And it becomes, instead of Zoom, it becomes a zoo. At least that’s what we call it. Are we going to join the zoo this morning? Or is this going to be a Zoom hearing? So it is a problem. I see it as a problem.
Max: And how are your clients dealing with it? This new way of appearing?
Ray: Well, several of the clients that are not as savvy, we make it easy for them. We say, “Hey, listen, you're welcome to come here if you're uncomfortable with Zoom, or if you don’t know how to download the app, or you're just technologically delayed a little bit.” And they will come here. They'll come and sit in a giant conference room, and we'll be able to do that hearing. That makes it a little bit easier for them. But I agree with your comments, some of the clients are actually doing it in their car, on their phone. Now I understand why that's happening. In many cases, they're trying to get away from their kids. Right? I've had situations where I'm looking at my client, I'm thinking, you're not going to the beach, literally, I said this to a client. “Hey, what were you thinking? You're not going to the beach? What was with the top? What do you think's going on here?” “Oh, well, you know, I didn't think it was that big of a deal.” “I told you, we want to dress neat.” But again, they're in their car. And they're figuring it's just a video, right? It's a video thing. So it's no big deal. We tried to accommodate those that are not comfortable with it. And those that are comfortable with it, great. Sometimes it goes smooth. Sometimes there are audio problems with the court. There’s the feedback—it's always a problem, you know, the audio feedback, the whistling noise, or again, three people are talking at the same time, four people are talking at the same time.
John: It's probably worth talking about—this is not necessarily something that's entirely new to criminal defense. I mean, we've had defendants appearing in a video conference for a while now when they're in custody. But now you're appearing via video conference, or you're not in the same room with the judge anymore. How do you see that as different, I guess?
Ray: It is difficult, especially since, you know, John, not all of them understand the waiting room aspect and having the technology to put us in a waiting room. So that we converse with the client. And the client sometimes doesn't understand he probably shouldn't say anything, unless we tell him to say something. So I think it's going to be a long learning process for everyone. Until we all get used to it. I think if judges come down—and I know, Justice McCormick has been great, because she's really tech savvy, and she loves this—I think if they can come down with a protocol to help all of the various district courts, and circuit courts, I think it's going to be a lot easier for all of us. But I just think it's going to take a long time to do that. Everyone's got their own plan, their own protocols. And, you know, if you're like me, and you're going to different courts on a regular basis, then you know, geez, I better call ahead of time and find out what's going on. And if the Zoom is going on, and you're trying to call in, you're not going to get ahold of anyone, no one's going to talk. So being prepared ahead of time is really important.
Max: Right. We interviewed Judge Warren a couple of weeks ago about virtual trials and virtual voir dire. I'd like to get your take on that. Especially in the criminal context. I think maybe civil trials may have a different issue. But what are your thoughts for the criminal bar?
Ray: That’s such an excellent question. We are really concerned. And again, having been a criminal defense attorney for 35 years, I can't imagine going to trial over video. I can't imagine questioning a witness, doing an opening statement, or closing statement over video. For instance, I will give you a really good example. Most of my Zooms have been pretrials. Maybe some pleas. But only one has been a sentencing. And it was not a good feeling. You know, you're talking over a video, so nobody has to really pay attention to you. Right? They're probably looking down at their phone, or they're doing other things. And I think that there's that disconnect when you're trying to allocute for your client and show that you really care about them, it's not coming through. It's not. Saying again, “your honor, you're sorry for this, and here's what we've done to correct the matter.” But the end result left me feeling like this was a mistake, and that I am not going to allow another client to be sentenced over Zoom proceedings. So getting back to your original question about Judge Warren—who's a great judge, and he's willing to be the first to try a jury trial, a criminal jury trial over Zoom—I just don't feel comfortable with it. I don't think you're going to have that type of seriousness from the jurors. I really don't. They're watching TV, right? It's kind of like watching People's Court and you're sitting there going, oh, okay. Okay. And I'm sure they're doing other things, too. You know, maybe checking their phone, because I know a lot of attorneys are doing that while they're waiting for the judge to respond to them; they're checking their phone when they're doing things. So I think it's a dangerous precedent. And I'm pretty sure Justice McCormack would agree with that, at least for criminal trial.
John: It's interesting, because the Supreme Court just handed down the Jemison decision, which had said the Confrontation Clause applies to a witness, at least testifying. And I'm guessing you haven't had any actual evidentiary hearings or any kind of testimony, right?
Ray: No, but you raise a great point, because next week, we have a preliminary exam that we insisted goes live. They said, “we'll use Zoom,” and we said, “no.” And they said, “Want to do it live?” And we said “Yes, we want it to live.” So if it's a preliminary exam, that’s where you're taking testimony, there's no way I want to do this over Zoom. No way. I want to able to confront the witness, I want to be able to question the witness, I want to see her body movements, what's going on as I'm asking these questions, and I want to do it live. And fortunately, the courts have been pretty good about that. They're saying, okay, we'll make accommodations to allow you to do this preliminary exam live. So next week is going to be a pretty big one on the 24th in Detroit, and we're going live on the preliminary exam.
John: Okay.
Max: Well, good luck with that, Ray. Say you could predict the future, what do you think the criminal bar would be like, in about a year and post-COVID?
Ray: Boy, where do you come up with these great questions, I mean, you think about post-COVID, and think, hey, that's a great question. I'm going to write this one down. That is terrific. Seriously, because I think Zoom is here to stay. I truly believe that. Now, do I think it's going to be on every case in every situation? No, I don't. But I do see some advantages. If it is a simple arraignment on, let's say, a misdemeanor case, boy, what a great thing, right? To be able to get your client arraigned on a straightforward drunk driving, you do it, you take care of it, you didn't have to travel anywhere. Pretty straightforward. I think the Zooms are here to stay for simple things; for formal hearings, I think that's going to be a here-to-stay thing. And I think it's easier on the court too. I think they can get a lot more processed. But if it's a serious case, something involving, you know, the person's life is at stake, and he could go to prison or he can go to jail for this. I think that the criminal defense bar is going to insist, “no, we have to have live in-court hearings.” So yeah, there's going to be a place for Zoom. And I think that it's here to stay; it's not going to leave. I think a lot of judges love it. They do, especially the judges that are doing it from home. And that's their right. As long as the case is being done. It's their right. I think some prosecutors like that, too. And probably some defense attorneys, and there is a place for it. And I would agree with that. But not in all cases. So a year from now, I think it's going to be part of our future. Wow. What do they say Max, change is the only constant, right?
Max: Exactly.
John: We had talked a little bit before, Ray, you've been going to the office, and you find you work better from the office. And I think you're probably not alone. I think a lot of people—they maybe missed the kind of the separation of home life and work life. And maybe that's not the case for some of the younger folks. How's it been, going to the office?
Ray: I thank goodness I've been able to do that. My staff has been able to come in. We've practiced all the things that we need to put in place to be safe when the clients are coming in. But I think you hit it on the head. If there wasn't that separation, I think I would probably drive my wife crazy. And we would be fit to be tied, right? I mean, fighting over a room, maybe you need privacy. You know, it's one of those things where I needed to be in my office to get work done. I truly needed, and maybe it's because I'm more old school and it's hard for me to adapt to it. But I just don't think working from home is going to be as productive. Now. I will tell you this. I think that we all got a little bit lazy too. Where it's very difficult, when you're trying to get a hold of the prosecutor and you're calling and stuff or you're emailing, and they're not returning their calls, because you know what? They're busy. They are eating breakfast or it's their lunch, and or they're looking something up. And whereas if you're in the office, you know, okay, it's busy time, you got to be working, you got to take that call, you got to respond to that email. That's the way I needed it. Is it a perfect solution for everyone? No. As I said, you know, my two sons who are both newer attorneys in the civil area—they're loving it. They're loving the stay at home and working from home; they can do it, they can function. They think that it's the way of the future, and they feel very, very comfortable with it. I needed to be in my office. Absolutely. With everything available to me. I needed to be right here.
John: Yeah. Well, Ray, I think we probably have to wrap it up here. But we really appreciate you taking the time to talk to us. And obviously all our listeners are definitely going to appreciate having your perspective on things, too.
Max: Yeah, it's a nice counterpoint to the judges. So I really appreciate your time. And I'm hoping you're taking care and your family is doing well.
Ray: And likewise, Max and John, it's been my pleasure. Thank you for inviting me. It was a very interesting discussion. And I'm sure that change will continue. Be safe, everyone.