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.

Scotland will hold jury trials in movie theaters

Courts across the world are continuing to think creatively in light of the ongoing COVID-19 pandemic. Some Scottish courts will now be holding socially distanced jury trials in movie theaters, where the 15-person juries can spread out, watch the presentation of testimony and evidence on the big screen, and then deliberate in person.

This follows similar efforts in the UK and US to use large open spaces for trials, including fairgrounds and convention centers. While we all look forward to the day when trials are back in a proper courtroom, the efforts to keep the wheels of justice turning are surely praiseworthy.

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.

Federal courts issue guidance for reopening, including conducting jury trials

The federal courts’ COVID-19 Judicial Task Force released a detailed report on Wednesday, containing recommendations for conducting jury trials and convening grand juries during the coronavirus pandemic. This Bloomberg Law piece provides a bit of additional context.

The report relies on guidance from the Center for Disease Control, and acknowledges that district courts may be ready to open, and open more fully, at different times during the next few weeks. It is a careful, detailed, and thoughtful report. It also illustrates the complex issues that virtually every organization — public or private — is facing right now regarding reopening: cleaning, social distancing, virus screening, transparency, scheduling, travel safety, and so on. Ask any school administrator, business owner, local bureaucrat, or public official, and you’ll hear about the same predictive difficulties.

The bottom line: courts are navigating this crisis just like the rest of us. Preparation is essential, but only time will provide real clarity.

 

Florida courts to pilot civil jury trials by videoconference

Florida’s state court system is creating a pilot program to hold civil jury trials via remote technology. Up to five trial circuits across the state will participate.

This is a nod to ongoing concerns about reopening courthouses, but it also creates the possibility of some jury trials remaining fully online even after the pandemic subsides. The more experience that courts have with remote trials now, the more they will be able to assess the strengths and weaknesses of remote trials going forward. This pilot program will be worth watching carefully.

Face mask requirements pose a new challenge as courts reopen

Courthouses around the country are slowly reopening, with a panoply of health and social distancing guidelines. One of the most basic rules is that everyone in the courthouse must wear a face mask — a wholly sensible approach from a public health perspective. But mandatory face coverings also pose interesting new challenges for lawyers, judges, and juries, because of our reliance on facial expressions to assess emotion and credibility.

Courts are awakening to the problem, and trying to develop creative ways to permit certain participants to uncover their faces while protecting public health. One possible solution is to conduct voir dire by videoconference.  Another is to cover witness and jury boxes with clear plexiglass, an admittedly second-best solution. As one Texas judge noted,

in Harris County, the courts are already installing plexiglass to protect the clerks, court reporters and bailiffs, who sit in high-traffic areas of courtrooms.

“I joke our courtrooms are going to look like a hockey rink,” he said. “We’re not putting plexiglass up around the jury box, because we haven’t figured out how we are going to conduct the jury trials. This is an issue that’s causing a lot of concern, because people sitting in the jury box are sitting shoulder-to-shoulder.”

Whatever the solution, the courtrooms will certainly feel different for a while.

Texas holds first Zoom jury trial

Yesterday, Texas held the first jury trial to be conducted exclusively through Zoom videoconferencing. The one-day summary jury trial was also livestreamed on YouTube.

This represents a major development, given that every other jurisdiction has simply postponed jury trials until courthouses reopen.  And judges are increasingly opening to the idea of remote trials in some form. On the other hand, some judges remain steadfastly opposed to trials outside the physical courtroom, and with courthouses beginning to reopen in the coming weeks, it remains to be seen how common videoconference trials will become.

Oregon forges ahead with some jury trials

While most states are delaying trials or holding them via videoconference, Oregon’s courts are continuing in-person jury trials for many criminal defendants. Social distancing guidelines have been put into place, but there is much trepidation on the part of jurors and observers alike.

“It is very unusual,” said Paula Hannaford-Agor, the director of the Center for Jury Studies at the National Center for State Courts, a nonprofit organization that supports state court systems. “To the best of my knowledge, Oregon has been the only state that I’m aware of that has been doing trials.”

Across the country some of the orders limiting or halting court functions are set to expire, Hannaford-Agor said, while others states have closures or limited court functions that extend until June and even July. Though Multnomah County has reopened trials, neighboring Clark County, Washington, has decided to delay all trials until at least July 6.

“Jury service is the very definition of community spread,” Hannaford-Agor said. “There’s probably no better way to spread the infection than putting anywhere from 50 to 300 people in a room together sitting side-by-side for hours at a time.”

In Oregon, many trials have been rescheduled. But for some criminal defendants who are in custody that’s not possible. Oregon law has less flexibility than other states when it comes to speedy trials and no emergency provision to delay them. In custody defendants get the right to a [trial] within 60 days of their arrest.

State courts extend and explain COVID-19 protocols

Yesterday, the Supreme Court of Colorado and the Supreme Judicial Court of Massachusetts respectively sent letters to their registered attorneys, informing them of recent measures taken to address the COVID-19 pandemic. Massachusetts will be extending its courthouse closures for most matters, including all jury and bench trials, while tolling statutes of limitations through the end of May. Colorado has delegated considerable administrative decisionmaking authority to the chief judge of each judicial district, in acknowledgement of the different circumstances and available resources in each district.

Decline in jury trials the “single biggest loss” to the legal profession, judges say

At a conference at Berkeley this week, several prominent federal judges address the rapid decline in jury trials at the federal level, with Judge David Campbell of Arizona calling the decline the “single biggest loss” to the legal profession.

Law360 has a good roundup, including efforts by judges to make trials affordable and efficient again:

The trend has driven judges to try to incentivize lawyers and their clients to accept expedited litigation schedules so that the parties aren’t embroiled in protracted pretrial disputes for years, according to federal judges speaking at the event, which was hosted by the University of California, Berkeley School of Law’s Berkeley Judicial Institute and the California Law Review.

Judge Campbell said he tried giving parties the option of sending their cases to trial within four months of filing suit. At the outset, he would require the lawyers to provide their clients with two budgets: one budget that estimated the costs of “old-fashioned” litigation and another that would estimate how much it would cost to go to trial within four months, which was always cheaper, he said.

Out of about 800 civil cases, Judge Campbell said not a single one went to trial under the expedited format.  About 80 to 100 parties expressed an interest in the shorter litigation schedule, but the counter party in the case wouldn’t agree to it, the judge said. In three instances, both parties took him up on the offer, but then all three cases were either settled or dropped before trial, Judge Campbell said.

The decline of the jury trial is deeply troubling on many fronts, not the least of which is that is denies affected parties the opportunity to tell their stories in a dignified and open forum. The power behind the opportunity to be heard cannot be stressed enough — it is one of the primary reasons why courts have maintained their legitimacy as institutions.

Not every case should go to trial, of course. But too many cases settle for the wrong reasons — cost, delay, emotional toll, or the desire for secrecy. Restoring a culture of jury trials in our courts would be an important step toward restoring confidence in American democracy as a whole.