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Law360 (December 21, 2020, 8:00 PM EST ) A U.S. Immigration and Customs Enforcement contractor is resisting the prospect of a remote trial in a wage suit brought by the state of Washington, claiming that such a scenario would violate both parties' constitutional rights to a fair day in court.
In a joint report submitted by the parties Friday about the possibility of conducting the trial entirely over the Zoom videoconferencing platform, The GEO Group Inc. said that the "scope and magnitude" of the case should prevent the court from moving forward with that approach.
The Florida-based corporation, which owns and operates a detention center in Washington state and contracts with ICE, is facing accusations that it breached the state's minimum wage laws by paying detained immigrants $1 per day for services, including cleaning and painting.
GEO said that the "complex case" is not suited for a virtual trial, despite the ongoing COVID-19 pandemic, and that a remote setting would deprive it of an opportunity to fairly present its positions. It also argued that the Seventh Amendment is a "constitutional command that the jury be at hand to the judge who is to superintend them."
A full Zoom trial is not only "unprecedented" but "unconstitutional," the company said.
"With ... the dissemination of the vaccine beginning across the country, the trial of this matter could conceivably continue in-person in 2021," GEO said. "There is no reason to rush the case to trial at the risk of jeopardizing both sides' right to a fair trial."
U.S. District Judge Robert Bryan first raised the idea of remote trial in early December, saying in a letter that he's effectively conducted hearings and one nonjury trial via Zoom. However, the judge said he had doubts about such a scenario working for this case because of the number of witnesses and the amount of evidence. He noted it would require cooperation from all parties and that the alternative is to "wait out the pandemic."
Attorneys for the state and the private plaintiffs in the case said they would be open to a completely virtual trial in 2021. They also disputed the "facts and statements of law" used in GEO's argument against a Zoom trial.
The Washington attorney general's office, which is representing the state in the case, declined to offer further comment on its problems with GEO's position.
GEO owns and operates a 1,575-bed facility in northwestern part of the state and has contracted with ICE for the detention of adults awaiting resolution of immigration matters, according to court documents. Washington has said that the company must pay detainees the state minimum wage in the same way that other private corporations doing contract work with the state are required.
Judge Bryan allowed the case to move forward in October 2019, noting that "material issues of fact" in the dispute remained.
Attorneys for GEO said Friday that both parties have identified more than 50 witnesses for the trial and that the hearings are expected to last at least three weeks. Virtual trials have failed to find effective ways to ensure jurors are paying attention throughout each hearing, they said, noting one juror was found to be playing video games during a previous virtual trial.
The company also argued that a Zoom trial presents issues associated with protecting the jury pool's identity and ensuring jurors are not seeking outside information about the parties or witnesses via the internet during the trial.
"At a minimum, GEO has the right to present its case where it has the undivided attention of jurors," it said.
The state of Washington is represented by Andrea Brenneke, Lane Polozola, Marsha J. Chien, Patricio A. Marquez and Eric A Mentzer of the Washington attorney general's office.
The GEO Group Inc. is represented by Adrienne Scheffey of Akerman LLP and Joan K Mell of III Branches Law PLLC.
The case is State of Washington v. GEO Group Inc., case number 3:17-cv-05806, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Sarah Martinson. Editing by Andrew Cohen.
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