Courts rethink the jury trial for the coronavirus era
By ANN E. MARIMOW AND JUSTIN JOUVENAL | The Washington Post | Published: July 31, 2020
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WASHINGTON — The prosecutor reported to courtroom 4J with a tape measure. The public defender rolled in with bag full of six-foot lengths of rope. A defense attorney showed up lugging a hockey stick.
Their mission on a recent afternoon in suburban Virginia was to figure out how to salvage the most fundamental aspect of the nation's criminal justice system from the clutches of the coronavirus: the jury trial.
The attorneys in suits and masks pushed chairs around to reconfigure the Fairfax County Circuit courtroom. They examined where to put plexiglass guards. And they used the tape measure, rope and hockey stick to mark off the proper social distancing for everyone who would be involved in a future proceeding.
After months of closures, many of the country's court systems are gradually reopening, having embraced technologies such as Zoom and YouTube to safely hold pleas, sentencings and even Supreme Court hearings. But the jury trial, which most feel can only happen in person, has remained largely stalled.
As in Fairfax County, judges, prosecutors and the defense bar in many jurisdictions nationwide are racing to re-engineer the jury trial for the covid-19 era in the hopes of restarting the proceedings before the end of the year.
They face the tricky balancing act of protecting the health of jurors who are compelled by the law to serve, while also providing the constitutionally mandated right to a speedy and public trial to tens of thousands of defendants, some of whom have languished in jail for months awaiting their day in court.
"The difficulties are pretty daunting, so it will be really slow coming back," said Paula Hannaford-Agor, principal court research consultant of the National Center for State Courts. "Unlike the individual choice of going to a grocery store, restaurant or a salon, jury service is compulsory, so courts have to be extra careful because people don't have the option to self-select out if they don't feel comfortable in that environment."
Courts are rethinking virtually every aspect of the proceedings: Do courthouses need HEPA air filters to remove contaminants? Who can wear a mask during a trial? Should juror questionnaires include queries about health?
With many old courthouses too cramped for social distancing, some jurisdictions are turning to high school gyms and ballrooms. Others are exploring the possibility of staging trials outdoors as courts did during the flu pandemic of 1918.
The challenges of administering justice in a pandemic quickly became apparent to the attorneys in Fairfax County. After the exercise in early July, they realized only a few of the courtrooms in one of the area's largest courthouses were spacious enough to accommodate a jury trial and the jury might have to sit in the gallery to offer adequate social distancing. The only way for the public to watch would be by video.
"The biggest takeaway is that it's possible, it's just going to be super expensive," said attorney Anna Dvorchik, who said the costs of cleaning courtrooms between proceedings alone would be a major issue. Fairfax County officials hope jury trials can resume in the fall.
Nearly all states have restricted jury trials during the pandemic, with D.C. and nine states postponing indefinitely, according to statistics from the National Center for State Courts.
In Maryland's federal courthouse in Baltimore, officials have retrofitted courtrooms, pulling out benches and installing plexiglass barriers. Grand jurors returned for the first time this month — a group of about 25 people in a ceremonial courtroom with stadium-style seating for 140. Only witnesses removed their masks from behind a clear face shield and plexiglass barrier.
The court is preparing to select new jurors for two trials scheduled for the end of August. The court is also summoning double the number of usual candidates and will prescreen jurors through questionnaires that give jurors the option of raising health concerns related to age or medical condition.
"The mountain is very steep," said Chief Judge James Bredar of the U.S. District Court in Maryland. "We're conscious of the fact that we're compelling regular citizens to come in, and we're trying to be extremely careful and prepare and make sure the courtrooms are safe."
Many courts are grappling with how to handle jurors who request dismissals for coronavirus-related concerns.
In preparing to bring jurors back inside D.C. Superior Court — possibly before the end of the year, if health conditions allow — Judges Juliet McKenna and Danya Dayson are mapping out how to safely accommodate a socially distanced trial. Like their colleagues in Fairfax, they are using tape measures, too.
"So much about jury service runs counter to social distancing," said McKenna, who leads the busy criminal division with Dayson. "The idea of putting 12 or 14 individuals in a jury room together is a non-starter."
The stakes are high for defendants charged with serious crimes, but not convicted, and awaiting trial behind bars. In D.C., McKenna said the court will prioritize and start with the roughly 125 detained defendants who already had trial dates come and go since the start of the pandemic. Not all would have gone forward, and a portion would have had defendants who pleaded guilty or cases that would have been continued or even been dismissed.
During the pandemic, the courts in many jurisdictions have paused speedy trial rights, which require prosecutors to bring a defendant to trial within a certain period after charges are filed.
Even so, some defendants say the long delays in going to court have abrogated their rights. Evan Rogers, 35, of Washington, has been held at the D.C. jail since his arrest in late January for allegedly brandishing a gun at a Lyft driver.
Rogers denies the allegation, but has watched his trial date slip from April 27 to an undetermined date. Meanwhile, he has endured a major covid-19 outbreak at the jail that has kept inmates on lockdown for 23 hours a day on many days.
"You're just kind of in limbo," Rogers said in a phone call from the jail." I've been here six months on a matter that should have been adjudicated in three months . . . there's no real end in sight."
The concerns extend to those who represent criminal defendants. The National Association of Criminal Defense Lawyers expressed "grave concern" in recent weeks about court's trying to resume normal operations amid the pandemic. The group said defendants may be forced to choose among their constitutional rights to a speedy trial, the right to confront witnesses, or access to counsel during a trial because of restrictions on proceedings to stem the spread of covid-19.
Fairfax County Public Defender Dawn Butorac said she is eager to get her incarcerated defendants their day in court but is also worried about ensuring that juries represent a cross-section of the community and that rules on masks are carefully crafted.
Butorac said groups that can't afford care for children stuck at home or the elderly who are susceptible to the virus may not end up on juries. She also has concerns about the racial diversity of juries, given black and Latino communities have been especially hard-hit by the virus and may be especially worried about exposure.
Butorac said she didn't want her clients wearing masks because it could make them appear guilty. She said if witnesses or jurors are allowed to wear masks, it could obscure key nonverbal cues during testimony and jury selection.
"We need to be able to see someone's face in order to judge their credibility," Butorac said.
For the few courthouses that are holding jury trials in the interim, lawyers, judges and jurors are adjusting to a different setting with jurors dispersed throughout the gallery in some instances and voices muffled through masks.
Michigan Judge Thomas Power was in the middle of his first trial in three months earlier in July after selecting jurors in the auditorium at Traverse City Central High School. About 50 people took their seats in the audience with 12 at a time taking turns onstage to be questioned by the lawyers.
At trial, Power said, all participants were wearing masks except for witnesses who must uncover their faces to testify. Instead of sending jurors out of the courtroom every time the judge and lawyers need to confer, jurors stay put and the others decamp to a conference room across the hallway. When it comes time for the jury to deliberate privately before rendering a verdict, Power said, "the courtroom will become the jury room."
"The whole strategy has been to change as little as possible, but to spread out," Power said.
There have been few outbreaks of the coronavirus linked to jury trials, but at least one case offers a cautionary tale about bringing so many people together in a courtroom during the pandemic.
A juror in an Albany, Ga., murder trial fell ill with the coronavirus in March, prompting court officials to send letters to 110 people in the jury pool telling them they were potentially exposed. A probate judge at the same courthouse died after contracting the virus weeks later, although it is unclear whether her exposure was related to the juror.
Some states are experimenting with remote jury selection, virtual grand jury proceedings and even civil trials on Zoom, although few legal experts think video proceedings could pass muster for a criminal trial.
In New Jersey, Bergen and Mercer counties are testing out remote grand jury proceedings despite pushback from defense attorneys concerned about the diversity of the jury pool and maintaining confidentiality.
Secrecy is critical in grand jury meetings, where prosecutors present evidence and witness testimony targeting those accused of a crime. Jurors can question witnesses, who appear without lawyers, and are then asked to decide whether to indict the accused, who is not present during the proceeding.
Matthew Adams, vice president of the Association of Criminal Defense Lawyers of New Jersey, called the online endeavor an "ill-advised experiment" that he said will exacerbate inequities in the justice system by compromising confidentiality and allowing "prosecutors to phone in" indictments.
"It is an affront to everything that's supposed to protect the presumption of innocence of our society," he said, emphasizing concerns about potential jurors who cannot afford the necessary technological equipment.
Judge Glenn Grant, the acting administrative director of the New Jersey courts, said no jurors were turned away because of a lack of equipment or private space, and the two panels have returned at least 33 indictments since June 18. Court officials have hand-delivered tablets with broadband access to seven jurors and Web cameras to four others. In-person proceedings during a pandemic, he noted, would leave out other people with medical conditions or transportation constraints.
To guard the secrecy of the proceedings, the court updated the oath grand jurors take to include a promise to remain in a private location, to use headphones so others cannot eavesdrop and to report technical problems immediately.
"Just as we do with live grand juries, we rely on virtual grand juries to honor the oath they are sworn to follow," Grant said in a statement.
In Texas, Judge Emily Miskel organized a one-day, nonbinding jury trial in a civil matter in which all proceedings, including jury selection, were handled through Zoom. Miskel was the high-tech bailiff, moving jurors or the judge and two attorneys into breakout rooms to hold private conversations. Jurors participated on laptops, tablets and smartphones and were highly engaged, she said. Attorneys concerned about being able to gauge the demeanor of jurors were surprised that the online view provided even more information.
Online, she said, "you see the whole face, eyebrow twitches and panel members are way more relaxed" sitting at home, instead of in a courtroom.
But for all the convenience of technology, the reliance on it has also led to some unexpected issues. A Supreme Court hearing live-streamed in May was interrupted briefly by the sound of a toilet flushing.