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In the early 1980s, electrical engineer Constantin Rusu was one of the organizers of a group of intellectuals who formed a transcendental meditation group in Romania. At the time, before the fall of the Iron Curtain, Romania was under the control of Nicolae Ceausescu, arguably one of the most oppressive of the Soviet-bloc dictators. Ceausescu’s secret police, the Securitate, began to suspect that Rusu and his friends were potential subversives. After Securitate agents brutally tortured Rusu — removing his teeth with pliers and a screwdriver — he fled, eventually coming to the United States, where he applied for political asylum. Rusu’s political asylum hearing became more than a referendum on the evils of totalitarian governments. After Rusu’s hearing on the merits was held via videoconference from a federal detention center, his case became a legal battleground on the use of trial technology. Rusu v. INS, 296 F.3d 316 (4th Cir. 2002). Although the 4th U.S. Circuit Court of Appeals ultimately ruled against Rusu — primarily because Ceausescu was no longer in power and thus did not present a threat of persecution — the court was concerned about due process issues. Courts across the nation have increased their use of videoconferencing. Proponents cite many benefits, including reduction of expenses, easier access to remote courts and the protection of juvenile witnesses, who can testify without being subjected to a traumatic courtroom experience. Not all lawyers are on the videoconferencing bandwagon, however. Some claim that its use in court, especially in cases such as Rusu’s, violates basic constitutional rights. The American Immigration Law Foundation (AILF), the Catholic Legal Immigration Network Inc., the Lutheran Immigration and Refugee Service and others joined in an amicus brief in support of Rusu, arguing that the use of videoconferencing in asylum hearings on the merits constitutes a violation of procedural due process. These lawyers and social services organizations maintain that videoconferencing denies asylum applicants the opportunity to face the court directly, critical in a case where the credibility of the applicant is a crucial factor. In addition, the groups claim that videoconferencing reduces the effectiveness of counsel — the lawyer can’t be in two places at once. HAPHAZARD HEARING The performance of the videoconferencing system in Rusu’s case was something less than spectacular. The groups referred to the “haphazard manner” in which Rusu’s videoconferenced asylum hearing was conducted, noting that the transcript of the hearing was “marked ‘indiscernible’ a total of 132 times.” During the proceeding, Rusu was being held at a federal detention facility in Farmville, Va. The actual hearing was held at the U.S. Immigration Court in Arlington, Va., just outside Washington, D.C. According to Susan Eastwood, a representative of the Justice Department’s Executive Office for Immigration Review, the videoconference system was operated by the Immigration and Naturalization Service (INS). Although he did not represent Rusu at the now infamous hearing, Michael Begland of the Richmond, Va., office of Hunton & Williams is representing Rusu pro bono on a motion to reopen filed with the Board of Immigration Appeals. According to Begland, the Farmville detention center’s videoconferencing system consisted of outdated equipment in a temporary trailer. AILF attorney J. Traci Hong, author of the amicus brief, agreed, noting that video and sound quality problems plagued the hearing. Begland stressed the inherent problems when an attorney is separated from his client. “How can you say you’re represented if you’re separated?” Begland asked rhetorically, noting that there was no chance for confidential communication between lawyer and client. The 4th Circuit recognized Begland’s argument. It said the use of videoconferencing in asylum hearings “results in a ‘Catch-22′ situation for the petitioner’s lawyer” because he must choose between interacting with the judge and opposing counsel and interacting with his client. The court also quoted from its opinion in U.S. v. Lawrence, 248 F.3d 300 (4th Cir. 2001), where it noted, “virtual reality is rarely a substitute for actual presence … . [E]ven in an age of advancing technology, watching an event on the screen remains less than a complete equivalent of actually attending it.” University of Florida law professor Kenneth Nunn agrees, noting that, were Rusu a criminal defendant, both the Sixth Amendment and the Federal Rules of Criminal Procedure would guarantee him a right of presence at any adversarial hearings. He noted that the U.S. Supreme Court has permitted videoconferencing in criminal cases in narrow circumstances only. “The defendant’s Sixth Amendment right to presence cannot be overcome simply for the convenience of the court,” Nunn added. However, not all courts have expressed such reservations about videoconferencing. In fact, in one Ohio federal courtroom, videoconferencing may have prevented a due process problem. DEMONSTRATIVE DEFENDANT U.S. District Judge Kathleen O’Malley of the Northern District of Ohio uses a videoconferencing system in her Cleveland courtroom. “I think it’s extremely useful. I’ve been disappointed that lawyers and parties have not embraced it as much as I thought they would,” O’Malley said. She said it would be inappropriate for her to comment on whether she would compel a party to use videoconferencing for a criminal proceeding on the merits. Yet she did share an experience where her videoconferencing system was an important part of one criminal matter. In that case, a criminal defendant yelled, and said that if they were going to try him, it would have to be with him in shackles and an orange prison jump suit. O’Malley said that in similar circumstances with obstructionist parties, judges have taped their mouths shut, but she added, “the potential for prejudice is obviously huge.” Instead, enter the videoconferencing system. During voir dire, O’Malley used the system so that the defendant could witness all proceedings. She gave defense counsel a mobile phone to allow private client consultations. She muted the system volume into the courtroom in the event the defendant decided to start screaming. In the end, the defendant decided to discard the shackles, don court attire and join the proceedings in person without vocal outbursts. O’Malley noted that, in civil matters, attorneys have used videoconferencing for witnesses such as records custodians and secondary experts, rather than for the parties or critical witnesses. Yet with the unruly criminal defendant, the system may have saved O’Malley from a difficult situation. FUTURE OF VIDEOCONFERENCING Legal technology consultants who supply such systems, such as David Goldenberg of Rockville Centre, N.Y.’s Doar Communications, feel that court videoconferencing systems can be designed to avoid potential legal pitfalls. “The systems can be designed to take away 99 percent of the problems,” he said, noting that, if attorneys wish to consult with their clients privately, the systems can be designed with “red phones,” allowing private attorney-client conferences. However, AILF’s Hong remains unconvinced. Although the 4th Circuit ruled against Rusu, holding that it need not decide the videoconferencing issue because of the facts in Rusu’s case, Hong believes that the court has made it clear that compulsory videoconferenced asylum hearings on the merits, although not criminal hearings, violate due process. Rusu and Begland are pursuing Rusu’s case, and Hong and her fellow public interest lawyers are searching for another test case to end the compulsory use of court videoconferencing. In the meantime, however, it will be business as usual at the Arlington Immigration Court. Justice’s Eastwood noted that the court’s system has been updated, including the installation of new speakers and monitors. She added, “It’s an efficient way to do business.”

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