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Social distanced justice? Courts restart trials, struggle to adapt to COVID-19 precautions

Judges say a positive COVID-19 case in a jury could paralyze an ongoing case.

June 9, 2020, 4:06 AM

As courts across the country begin to cautiously resume in-person hearings through the COVID-19 pandemic, judges are confronting a vexing challenge: how to safely convene jury trials at a time when health officials continue to caution against public gatherings.

With no real federal guidance or uniform system governing the nation’s vast judiciary, current and former judges from the local to federal level described to ABC News a puzzling process that will go into mapping out different methods to implement social distancing practices -- with each community and facility presenting its own unique set of challenges.

While all agreed there is no catch-all solution to protect every citizen who enters a courtroom, the judges say they are seeking to avoid what has been described as a "nightmare scenario" in which a single confirmed COVID-19 diagnosis of a participant or juror would likely throw a case into a state of paralysis.

“Obviously if we just found out that a juror had tested positive, then because of the fact that the other jurors had been in proximity we would probably declare a mistrial and not be able to go forward with the trial,” said judge Stephen McIntosh, who serves on the Franklin County Court in Columbus, Ohio.

One current federal judge who spoke to ABC News on the condition of anonymity in order to be candid described the dilemma as a “terrible burden,” in judges not being able to guarantee the safety of those they're asking to carry out their civic duty.

“We’ve got to do everything we can to stay safe for the protection of each and every person in the courtroom,” the judge said.

A California court uses the whole space; in Ohio there's plexiglass

The spread of COVID-19 across the country resulted in a near-universal halt to in-person jury trials with only limited exceptions through at least the start of June.

For the hardest hit state of New York, courts have since resumed limited in-person operations with judges, chambers staff and other support personnel returning to courthouses and members of the public being allowed to drop off papers with the clerk, but there's still no clear timeline on the local or federal level for the resumption of jury trials.

In some areas around the country that were not as severely impacted by coronavirus, several courts have already begun resuming jury trials with social distancing and sanitary measures. Judges from separate jurisdictions who have not yet resumed trials are closely monitoring the measures taken elsewhere in an attempt to learn potential best practices.

In California, the local court in Monterey County, which has seen less than 700 COVID-19 infections and 10 deaths as of Monday, began resuming jury trials last week with safeguards that included spacing out jurors throughout court rooms rather than seating people in the typical jury box.

The court required all citizens who enter the building to wear facemasks but also stated that all “who have health concerns related to COVID-19 will be allowed to defer their service to a future date.”

Judges are typically afforded broad discretion over how to manage jury summons and who they determine should be granted exemptions, but there is currently no clear set of guidelines related to those seeking deferment because of COVID-19 related reasons.

But some judges have expressed concern that such a standard for deferring service will likely make it impossible to impanel juries that are representative of the broader public.

“The problem with jury trials is that juries are always involuntary participants,” former Northern District of Texas district judge Joe Kendall said. “So we already know that statistically, reports that this virus has adversely affected the African-American community, those folks might be a lot more afraid. People over 65 are more at risk.”

Kendall added, “They may not want to be put in an environment that puts them at risk. And then, too, you add a layer on to that of -- [defendants are] entitled to a jury of a cross-section of the community.”

The current federal judge who spoke with ABC News on the condition of anonymity also acknowledged that some may seek to skirt jury duty by just using COVID-19 as an excuse, but said that judges would typically like to avoid seating such people on a jury in the first place.

"My view is if somebody is going to lie to me, do I really want them to be the person who decides someone else's fate?" the judge said.

In McIntosh’s Ohio courtroom he has overseen a complete structural transformation -- with plexiglass partitions erected between each individual juror seat in the jury box, in addition to plexiglass in front of the witness stand, the bailiff’s station and even his own judge’s bench.

“We decided on plexiglass around the witness stand because that would allow the witness to testify without a mask so that the jurors could hear the witness better,” McIntosh said.

PHOTO: Glass partitions are seen in the Franklin County Court of Common Pleas in Columbus, Ohio, in this undated handout photo.
Glass partitions are seen in the Franklin County Court of Common Pleas in Columbus, Ohio, in this undated handout photo. The partitions are intended to help the court experiment with resuming jury trials during the COVID-19 pandemic.
Judge Stephen McIntosh

However, McIntosh added that one potential problem is that for some of the juror positions the plexiglass appears to partially obstruct either his own line of sight to the jury box or the jurors’ line of sight to the witness.

“Generally speaking, there's not real issues with that except for the last couple of jurors, who would probably need to either move up or move back depending on where the witness decides to sit,” McIntosh said. “We don't know if it will work, but it's going to require all of us to conduct trials a little bit differently.”

Virtual voir dire? Where technology could help

Judges pointed to the jury selection process, or ‘voir dire,’ as potentially the most onerous in terms of facilitating proper social distancing -- as tens of millions of Americans are summoned for jury duty every year.

Typically after receiving a summons in the mail from their local court, a select number of people from a particular jurisdiction convene in a court room to answer questions that may be related to a case as they are considered to be chosen for the jury.

“You're going to be around during the jury selection process, 30 or 40 total strangers,” Kendall said. “You have no clue where they've been or who they've been around or what safety precautions they have or have not taken, because we know that safety precautions, as we've seen recently, is kind of polarizing.”

Various counties in states like Washington and Texas have proposed moving jury selections to larger venues like convention centers or even former shopping centers, while officials in San Diego County have raised the idea of renting out vacant movie theaters.

But other judges told ABC News that virtual video services like Zoom that courts have relied on the past three months of the crisis could actually be compatible with the voir dire process.

McIntosh noted that he recently heard from an attorney affiliated with the National Center for State Courts who had participated in such a virtual voir dire and “liked it.”

“When the person was talking, you actually get to see their face closer than you would have in the courtroom,” McIntosh said. “And they felt that the people were a little bit more open because they were in the comfort of their own home as opposed to being in a courtroom.”

At the same time, McIntosh and others acknowledged potential logistical difficulties in the event that some sent jury summons don’t have access to the proper technology, in which case it would likely fall on the court to provide it.

“Because you don't want to say, well, you can't serve because you don't have a laptop or you don't have WiFi at your home,” McIntosh said. “I think that would be improper to excuse someone for that reason.”

No substitute for in-person criminal trials

One process all the judges who spoke to ABC News agreed would not ultimately be compatible with fully virtual operations is criminal trials.

Preserving the dynamic nature of such trials, with public presentations and numerous private conferences conducted between the judges, witnesses, jurors, attorneys and their defendants is seen as essential in order to protect the rights of the criminally accused.

PHOTO: Glass partitions are seen in the Franklin County Court of Common Pleas in Columbus, Ohio, in this undated handout photo.
Glass partitions are seen in the Franklin County Court of Common Pleas in Columbus, Ohio, in this undated handout photo. The partitions are intended to help the court experiment with resuming jury trials during the COVID-19 pandemic.
Judge Stephen McIntosh

“Some of the defendants and defense lawyers are demanding their right to a trial, which is a constitutional guarantee,” one federal judge said. “And you do also have the attention of the Confrontation Clause, which, of course, says defendants are permitted to confront their accusers and the witnesses. So the criminal jury trial is the most difficult component.”

Any alteration from the status quo and defense lawyers could technically argue grounds for dismissal of the case based on alleged unfair treatment of their clients.

“Cases will last a lot longer,” former Rhode Island State magistrate judge Ken Schreiber said. “There'll be modifications within the framework of how people are sitting, where they're sitting, their ability to communicate. They may have your client not sitting next to you, but you may be able to say something in a microphone that only you and your client can hear.”

Despite such protections though, a juror or other participant in the trial testing positive for COVID-19, McIntosh said, would not only likely lead to a mistrial -- but would likely require the immediate involvement of the local public health department.

"Utilizing the protocols that they have outlined to us we would have to, or they would then have to engage in the process of getting in contact with all the persons that may have had some contact with [the confirmed positive participant]," McIntosh said. "All persons that have come in contact with the juror would have to be tested and you would have to declare a mistrial."

Seeking to tackle the broad array of complexities at stake, the Administrative Office of the U.S. Courts System recently convened a task force of judges and other stakeholders to specifically debate the issues surrounding resuming jury trials and any broader recommendations they could put out as guidance for judges and court clerks to consider.

A person familiar with the task force’s progress says it’s not clear when the group will put out its guidance, and once it does, courts won’t technically be required to adopt any of the recommendations.

“People are perplexed as to how to make it useful on a very broad scale,” the person said. “This is probably going to have to be formulated on a local level with some just general guidance from a national group, recognizing that you can't prescribe one formula for everyone.”

ABC News' Aaron Katersky contributed reporting to this article.

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