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Trial by Zoom? Some Florida courts delay test of virtual juries — for now

By MONIVETTE CORDEIRO | Orlando Sentinel | Published: June 29, 2020

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ORLANDO, Fla. (Tribune News Service) – Reporting for jury duty in Orange and Osceola counties could in the coming months mean turning on your computer and tuning into a Zoom video call.

Criminal and civil trials have been suspended in Florida since early March because of the coronavirus pandemic, but earlier this month, the Ninth Judicial Circuit was picked to be among a handful across the state that would test remote jury trials, to be conducted by online video conferencing.

The program was temporarily put on hold Thursday after the circuit decided to pull back on court operations following a spike in local COVID-19 cases, Chief Judge Donald Myers Jr. said.

"We're going to have to set it aside for now," he said.

When it's allowed to begin, the pilot is expected to be for civil trials only.

"The first hurdle is identifying cases and getting lawyers to volunteer cases for the pilot," said Circuit Judge Lisa T. Munyon, who's in charge of the project in Orlando. "We're hopeful that we will have people come to this party."

But Orlando attorney John Morgan, founder of Morgan & Morgan, the largest law firm in Central Florida, said his attorneys would advise clients not to participate in the program because it's a "very bad idea."

"It's a violation of due process," he said. "Every case would be appealable."

The circuit's pilot is planned to be a "hybrid method" that combines in-person jury selection with remote proceedings, Munyon said.

People would gather for jury selection in a very large room, either in the courthouse or at an alternate site following safety protocols. After being picked, jurors would attend the trial itself remotely from their homes or offices, Munyon said.

"Jurors will be remote, the court will be remote, the lawyers and the witnesses will be remote – everything will be on the computer," she said.

The jury will come back to the courthouse for in-person closing arguments and deliberations with the appropriate social distancing space, Munyon said.

"We all may have to leave the courtroom during deliberations and let them deliberate in the courtroom where they have more space," she said. "We're just trying to think outside the box."

The plan is to experiment with multiple platforms, including Zoom, Microsoft Teams and Cisco WebEx. Jurors who don't have a computer or a good Internet connection at home would be offered a room at the courthouse, the judge said.

"They will not be excluded because of that lack of resources," Munyon said.

The pilot is a binding process for the parties, said Orange County Bar Association President LaShawnda K. Jackson. To participate, attorneys and their clients have to agree to waive any appellate issues regarding the manner in which the case was tried.

"Whatever happens in this trial, the attorneys will have to accept," she said. "They can't say, 'Well, I don't like the outcome' and ask for a non-virtual trial."

Jackson said she has heard some concerns from attorneys about how to make sure virtual juries are following a judge's instructions and not doing anything improper. But others are "very interested" to see how the first trial goes, she said.

It's important do civil trials remotely because when the courts reopen, they will be devoted to going through an enormous criminal trial backlog, Jackson said.

"We don't know when we're going to have a civil trial again," she said. "If we have cases that fit the bill, why don't we give it a shot?"

Morgan said his firm tries about five to eight cases a week across the country, including about eight to 10 trials a month in Central Florida – a number that's been reduced to zero since the pandemic began.

Still, Morgan said he believes virtual juries are a violation of a client's due process rights. While regular juries are not allowed to talk to each other or anyone else about the trial until it's over, anyone in a remote juror's home could watch the trial, including spouses, children and friends.

"(Jurors) don't even have to watch – they could lay down on the couch and fall asleep," he said. "If a juror falls asleep in the courtroom, that juror's moved on and an alternate comes in."

Morgan said he is concerned the jury pool would not be as diverse because poor people may have spotty WiFi or no WiFi at all. If someone's Internet goes down, there could be a mistrial, he said.

But Munyon argues the circuit has made provisions in the pilot for those who don't have access to a computer or the Internet. Regarding concerns about anyone watching along with jurors, the judge said trials are already public events and, as part of the pilot, they will be livestreamed or uploaded to the web.

"When jurors go home, a judge instructs them not to talk about the case with anyone, including family members," she said. "I don't think this would really be any different because we're still relying on jurors to follow our instructions."

The pilot will require trials to have a number of alternate jurors in case a juror is disconnected, which would avoid a mistrial, Munyon said.

"There are some professions that have been built upon thoughtful, slow progress, and the law is one of those, so getting attorneys interested in this very novel concept for one of their cases may be a challenge," she said. "But I think once lawyers realize that it could be a very long time before they can have their case heard in the traditional way, they may be more interested."

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