jury trials – The Interdependent Third Branch

Does requiring jurors to be vaccinated raise due process concerns?

As part of their public safety planning in the wake of the pandemic, a number of courts across the United States are beginning to require that jurors for in-person trials be vaccinated against COVID-19. That is a perfectly sensible policy. But it raises complex ancillary issues about the makeup of the jury pool once unvaccinated — but otherwise eligible — citizens are excluded from jury service.

An editorial in Massachusetts Lawyers Weekly articulates the problem:

Barring unvaccinated individuals could, in some parts of the state, make it more difficult to secure enough prospective jurors. It could also skew the jury pool, leading to more homogenous and less diverse juries.

Generally speaking, vaccinated Americans are more likely to be older, female, white, college-educated and liberal in their political leanings, while unvaccinated Americans are more likely to be younger, conservative, male or people of color.

In Massachusetts, statistics show that in cities such as Brockton, Lowell, Springfield and Worcester the percentages of Black and Hispanic individuals who are vaccinated are well under 50 percent, and the percentages of vaccinated individuals in their 20s are significantly lower than is the case for older people.

As the editorial further notes, there is no constitutional bar to excluding unvaccinated individuals, since they are not being denied the chance to perform jury service on the basis of race, gender, religion, or another protected category. But it could skew the jury pool away from the reasonable cross-section of the community.

There is also the perverse satisfaction that some might take in knowing that being unvaccinated gets them out of jury service. Perhaps such jurors should still be required to serve on virtual –or even outdoor — trials, if the demand for such proceedings continues.

Minnesota’s federal court will continue with Zoom trials even after COVID

In an interview with Law360, Chief Judge John Tunheim of the U.S. District Court for the District of Minnesota said that his district will continue with civil trials over Zoom even after the coronavirus pandemic no longer makes them necessary. A snippet of the interview:

Our plan at this point is to resume jury trials, and in-person hearings to the extent necessary, on May 3. All of our staff will be vaccinated and beyond the two-week period following the second shot, so we think that by May 1 we should be in pretty good shape for jurors coming in.

I do plan to continue, and urge our other judges to continue, to do as many hearings on Zoom as possible. It’s worked really, really well, and we’re still not in a position where we want a lot of people coming into the courthouse.

I think using Zoom is a very effective tool for bench trials. For jury trials it’s a little more complicated, as we know. But we have a backlog of civil cases that we’re probably not going to get to right away because of the criminal case backlog. We are, for the time being, using only two courtrooms, one in Minneapolis, one in St. Paul, both with substantial amounts of plexiglass. Only using two courtrooms makes it hard to catch up.

I expect to see much more along these lines in the coming weeks and months.

People are ducking jury duty amid COVID concerns

Bloomberg Law reports that while some state courts have reopened their courtrooms to live trials, most people called for jury duty are not showing up. In California Superior Court in San Diego, only 5% of those receiving a jury summons actually came to court on their appointed day.

It’s not that courthouses are inherently dangerous, or likely super-spreader locations. Indeed, courts nationwide have made every effort to insure juror safety, and — as importantly — to make jurors feel safe. Massachusetts, for example, has temporarily reduced the jury size from twelve to six, and has installed so much plexiglass in courthouses that, according to Chief Justice of the Trial Courts Paula Carey, some jurors felt safer in the courthouse than at the grocery store.

Still, this is going to be a slow climb back to normalcy. The length of the pandemic has conditioned our brains to think differently about being in enclosed areas with others, and even after we hit herd immunity, it will be a while before we can loosen up again. To keep the docket moving, courts should think about hybrid models, using both live and video components, even after the pandemic subsides.

Defendant seeks delay of major patent trial due to COVID

The primary defendant in a major patent case pending in the U.S. District Court for the District of Delaware has requested a delay of its scheduled trial due to concerns about conducting an in-person trial while COVID-19 rages on.

3G Licensing sued LG Electronics and others more than four years ago, alleging infringement of U.S. Patent No. 6,212,662. The patent concerns a method and devices for detecting transmission errors in data streams. Trial is scheduled for April, but in a letter to the court LG’s counsel worried about the ability to get a representative jury in the midst of a pandemic.

Courts have struggled to deal with trials during the coronvirus surge, with most delaying in-person trials or attempting to conduct them over video. Notwithstanding tireless efforts to assure due process and transparency for all parties, reactions to the videoconferenced trials have been mixed. At some point this year, courts should return in earnest to in-person trials (and will likely have a serious backlog to deal with). But it’s not fully clear whether that moment will come as soon as April.

Taiwanese groups call for reforms to combat judicial corruption

In the wake of a major corruption scandal involving more than 200 members of Tiawan’s judiciary, legal reformers are pressing for signficiant changes to the legal system, including the abolition of life tenure for judges and the introduction of jury trials in criminal cases. According to the Taipei Times:

Attorney Chang Ching (張靜), who previously worked as a judge and prosecutor, said that he hoped the ministry and Judicial Yuan would take this opportunity to reflect on themselves “and make real changes” to fix problems revealed in the case.

“If they do not, Taiwanese will no longer have faith in the justice system, nor will they expect to have true judicial reform,” Chang said.

Officials have promised a more complete investigation of the corruption scandal, addressing gaps in their original report.

Some Georgia courts to broadcast live trials — sort of

I got excited when I saw the headline from a Columbus, Georgia television station: City of Columbus purchasing courtroom cameras to allow public to watch jury trials. After all, one major lesson from the coronavirus pandemic has been that the presence of cameras in the courtroom is far less disruptive than some believe. To be sure, one needs to be cautious about protecting privacy and due process, but those values can coexist comfortably with video technology.

But it turns out that the Georgia court cameras will only broadcast trials into the next room, not out to the public in general. This artificially limits the number of people who can view the trials, learn about the court system, and see it in action.

It’s good, of course, that the courts are at least opening trials again for public view — and cameras are the only safe way to open courtrooms to the general public for as long as the pandemic lasts. But this strikes me as a missed opportunity to bootstrap a transparency measure and turn it into a much larger positive for the courts and the public.

Western District of Pennsylvania to halt jury trials for three months

As COVID-19 cases begin to rise in the Pittsburgh area, the U.S. District Court for the Western District of Pennsylvania has announced a halt to nearly all jury trials until at least February 8, 2021. Law.com explains:

The unavailability of health care workers, high-risk citizens, those who rely on now-limited public transit, “and those who will face substantial childcare challenges arising from the renewed closure of schools … creates a serious impact” on jury selection, the court said.

The situation would demand “ever-larger jury venire pools for potential service and potentially diminish … the representative nature of the pool of summoned jurors,” the court said.

For criminal defense lawyers, they are experiencing huge challenges in being able to communicate with their clients behind bars, a necessity for a fair defense, the order said.

Unfortunately, this is probably just the first of many orders that will similarly affect state and federal courts this winter.

In-person jury trials to resume in Brooklyn

For the first time in seven months, Brooklyn courts will begin to hold jury trials inside courthouses. A number of safety measures have been implemented, including temperature checks, plexiglass screens, and upgraded air filtration systems.

During the last several months, a number of courts worldwide held jury trials outdoors or in large, socially distanced venues. As winter approaches (in the Northern Hemisphere, at least), trials will have no choice but to move indoors. Hopefully they prove to be safe and successful.

Coming soon to your local fairground: jury trials?

Court administrators have had to act nimbly during the entirety of the coronavirus pandemic, in order to balance public safety with the requirements of due process. Now, some county courts in Oregon are considering yet another creative solution: holding jury trials at local fairgrounds in order to meet the requirements of social distancing.

The fairgrounds are already owned by the respective counties where trials might be held. They are easy to get to, have ample parking, and offer wide-open and largely unused buildings, making them an attractive option for courts. Still, there are many logistics that have yet to be worked out:

So far in Deschutes County, court officials have developed lists of what will be needed at the fairgrounds. On the to-do list is to look at the costs of renting tents and other furnishings like chairs, tables, maybe a riser to put a bench up on.

Heating, air conditioning and restrooms will be needed to keep people comfortable, because jurors need to be focused only on listening to the evidence, Ashby said. Secure and private rooms are needed for lawyers to meet with clients and jurors and judges to deliberate. Boxes and boxes of computer and recording equipment must be relocated and tied in with the county IT system and the fairgrounds PA system. Security is another primary concern.

“Our number one priority is making the courthouse as safe as humanly possible,” Ashby said. “Competing with that are statutory timelines, which require us to try cases, the most pressing of which are in-custody criminal defendants.”

Plans like this are born of necessity, but it will be fascinating to see what courts learn from the experience, and how some of these options might influence court administration after the pandemic subsides.