Judges differ on when it's safe to hold in-person jury trials

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Lynn Winmill

U.S. District Judge B. Lynn Winmill says courts need to weigh local circumstances when deciding whether to hold live trials. Courtesy of the U.S. District Court for the District of Idaho.

Editor’s Note: For nearly a year, legal professionals have been grappling with the implications of delayed justice while trying to balance the safety of court employees, jurists, lawyers and clients as the COVID-19 pandemic continues to ravage the United States. With thousands of trials delayed since the pandemic began last March, judges are tasked with prioritizing which cases to handle first and deciding whether to try cases in person. Courts nationwide are embracing remote technology, using video and audio platforms to conduct hearings and trials. These adaptations expand access to court proceedings; they also deepen the divide for those who lack proper internet access. Meanwhile, states are actively debating whether courts can open safely and summon citizens to sit on juries. The ABA Journal explores these challenges in this and Going Virtual: Courts attempt to balance innovation with access in remote proceedings.

Despite reports from federal courts of in-person jury trials being held safely, many judges across the country are still deliberating whether to hold in-person jury trials at all.

In September, the Administrative Office of the U.S. Courts posted an article sharing judges’ accounts of in-person pandemic-era jury trial success stories in which precautions taken ensured participants’ safety. But as COVID-19 rages on, not every judge practicing on the front lines agrees moving forward with in-person trials is safe.

State and federal courts resumed jury trials at different paces, some doing so as early as June. But across the country, including in the huge Los Angeles federal system, battles are ensuing over safety and due process, representative juries and the overall fairness of altering a system never designed to withstand video appearances, mandatory masks, 6-feet social distancing and regular temperature checks.

Two days before the U.S. Courts posted the article about in-person trials, Chief Judge Sidney R. Thomas of the San Francisco-based 9th U.S. Circuit Court of Appeals, which includes the Central District of California, praised Central District Chief Judge Philip S. Gutierrez’s decision to keep jury trials off-limits, writing in a Sept. 8 letter to all Central District judges that resuming jury trials “prematurely” in other districts was “causing coronavirus spread.”

Thomas’ letter came amid litigation in which Gutierrez’s Central District colleague Judge Cormac J. Carney asked Gutierrez to summon a jury for an Oct. 13 trial of a physician accused of illegally supplying patients with drugs including oxycodone. Carney denied prosecutors’ pandemic-related request for a continuance, then dismissed the case with prejudice after Gutierrez declined his order to summon a jury. At press time, jury trials in the Central District remained suspended.

A judge in Sacramento shared Carney’s belief that such a delay violates the U.S. Speedy Trial Act. U.S. District Judge William B. Shubb in October dismissed without prejudice a criminal indictment against a neurologist accused of harboring noncitizens on her property and forcing them to work. But unlike Carney, Shubb said in his dismissal he believed jury trials were not safe.

The debates over public safety versus timely justice have experts questioning the best way to manage an unprecedented disruption in the U.S. judicial system. Some are warning of a dire health threat, and others are advocating for in-person proceedings with safety measures to ensure the already increasingly rare jury trial doesn’t disappear during the indefinite length of the pandemic. As judges weigh constitutional claims, lawyers are navigating the safety and strategic aspects of agreeing to or fighting delays, with wide-ranging opinions on the value of in-person witness examination, the need to see facial expressions in a time of masks and the danger of excessive no-shows leading to slanted jury pools.

And the changing nature of the pandemic is adding an extra layer of uncertainty. At press time, rising infection rates were again altering policies at courthouses across the country, with many jurisdictions postponing and canceling in-person trials amid new local restrictions and surges.

Anna Offit

Anna Offit says defendants have to consider their rights while going virtual. Photos courtesy of Southern Methodist University, Hillsman S. Jackson.

Anna Offit, a professor at Southern Methodist University’s Dedman School of Law, says some defendants “may be forced to make significant decisions with implications for their constitutional rights.

“This can come at the expense of having an in-person trial,” Offit says. “And if a trial is going to be virtual, this could very well entail compromising other rights.”

No national uniformity

Many courts, whether federal or state, are simply unprepared, says Melanie D. Wilson, a professor and dean emeritus at the University of Tennessee College of Law.

“It’s really been a struggle and patchwork for courts that have been requiring masks sometimes but not other times; doing health inspections sometimes but not other times,” Wilson says.

No national policies exist regarding in-person proceedings, resulting in vastly different approaches to jury trials during the pandemic. While statewide guidelines and policies exist, many state courts differ by county and sometimes by courthouse. And despite the uniformity of the federal system, the chief judges of the 94 districts are tasked with determining how their courthouses should approach hearings, sentencings and trials amid differing infection rates and safety approaches, locally and by state.

A few chiefs have allowed individual judges to decide whether to halt trials. Some prohibited trials for several weeks but have since resumed them with restrictions. Others have stopped them indefinitely and are rejecting requests to resume activity, leading to outcries among some jurists wary of the Speedy Trial Act and adamant that the Constitution trumps any local restrictions.

Melanie D. Wilson

Courts’ policies are a patchwork, law professor Melanie D. Wilson says. Photo courtesy of the University of Tennessee College of Law.

By early September, 30 federal district courts issued orders allowing jury trials to resume, according to the Brennan Center for Justice. But as COVID-19 infections surged in the fall, some courts halted them for a second time. Some state courts found themselves in the same situation. The Idaho Supreme Court in November halted jury trials after resuming them in September. Colorado’s 1st Judicial District resumed jury trials in August but suspended them in November after court staff became infected, and in January it continued that suspension through Feb. 15. Maryland also stopped trials in November through Jan. 15 after reopening in October, though trials with already-seated juries continued. The suspension had not been extended past Jan. 15 at press time.

Judge insists live trial OK

In Orange County, California, the state-run superior court resumed in-person trials in June and had held 100 by the end of October with no major problems reported. The main courthouse in Santa Ana is a block from the U.S. District courthouse where Carney’s Central District chambers are located, and Carney cited the nearby trials when he dismissed the physician’s criminal indictment.

In his ruling, Carney said the successful trials prove trials in his geographic area are possible, and caselaw indicates the Speedy Trial Act’s “ends of justice” exception applies only in situations where conducting trials is impossible, citing delay examples after Sept. 11, 2001, and the Mount Saint Helens explosion in 1982.

Prosecutors argued against Carney’s dismissal of the charges against the physician during an Oct. 13 in-person hearing, saying it was the Central District’s pandemic policy, not them, preventing the trial. But Carney said at the hearing that the judges who don’t want to hold trials fear people getting sick, which is “blinding them to the Constitution,” and he invited prosecutors to appeal his decision to the 9th Circuit. They did so in November, but no decision was expected for several months.

The majority of Carney’s district colleagues disagree with him, as do many of his colleagues across the country.

But Kate Corrigan, a criminal defense attorney in Orange County, says she understands the public health concerns but can’t understand why the Central District won’t hold trials when the nearby superior court has conducted more than 100.

“I think the public should be very concerned over the idea that due process has come to a screeching halt,” Corrigan says. “People are being detained for lengthy periods of time.”

Balancing safety and speedy trial rights

The dismissal issued by Carney in California came nearly four months after U.S. District Judge Robert Lasnik in the Western District of Washington rejected a similar argument from a public defender representing a man awaiting trial on child pornography charges.

Lasnik cited unfeasible social distancing requirements, a lack of personal protective equipment and his belief that risks to certain demographics, including the elderly and people with underlying health conditions, make it “difficult, if not impossible, to obtain a jury pool that would represent a fair cross section of the community.”

Some judges may give leeway to people who say they’re at high risk, but the larger concern is that many simply won’t show up for initial selection. U.S. District Judge Barbara M.G. Lynn, chief judge of the Northern District of Texas, conducted the state’s first in-person federal trial in early June.

She discussed her pandemic trial experiences at a July panel sponsored by the ABA Judicial Division, saying she was skeptical that she could seat a cross-section jury. “I was very concerned about whether minority members of our community would feel themselves at great risk and therefore do their best to drop out,” Lynn said. “That did not turn out to be the case.”

Still, due to rising infection numbers, in a June 19 order and a subsequent July order, Lynn postponed in-person jury trials in the district’s Dallas Division scheduled to start through July 31. And on Nov. 18, she postponed all in-person trials in the district—except one in the Fort Worth Division—until after Jan. 1.

U.S. District Judge Stefan R. Underhill, chief of the District of Connecticut, said last fall his judges were deciding themselves whether to resume trials after the court-imposed moratorium on civil trials expired in September and the one for criminal trials ended in November.

“The processes are safe,” Underhill said, adding that the jury pools have shown the diversity needed to properly represent the public. Judges are prioritizing trials for in-custody defendants.

“Obviously, everybody has speedy trial rights, but I think it’s a different issue when you have defendants who have been detained versus defendants who haven’t been detained,” Underhill said.

But he cautioned, “Certainly not all of our judges are interested in getting going yet.”

The reluctant judges got a reprieve through the fall and winter surges: Underhill on Dec. 3 suspended jury trials until Feb. 1 “in the hope that circumstances may permit them to proceed safely.”

Once trials resume, Underhill’s order says priority “will be given to short criminal trials involving defendants who have been detained the longest.”

Like most aspects of pandemic-era trials, however, priority for in-custody defendants isn’t universal: Lynn said out-of-custody defendants were more likely to be tried sooner because of the infection risks associated with jails and transporting defendants.

COVID-19 precautions in the courtroom

Brandon Draper, an assistant county attorney for the Harris County Attorney’s Office in Texas, says socially distanced in-person trials may be problematic, but videoconferencing could be worse because of the limitations on the accused’s ability to privately confer with counsel and confront witnesses.

In an August article for the Boston College Law Review, Draper urged in-person trials to proceed with caution because “if we do nothing, we will ensure that justice delayed is justice denied.”

U.S. District Judge Anthony J. Battaglia in San Diego presided over four jury trials between Sept. 1 and mid-October after the Southern District of California worked with health experts to implement safety precautions such as digital presentations of evidence, reconfigured courtrooms, jury selection in large waiting rooms and sequestering requirements that keep jurors at the courthouse for breaks, including lunch.

Each juror receives hand sanitizer, clean notebooks and pens, and clear masks that allow their facial expressions to be seen during voir dire. Witnesses also wear clear masks during testimony, Battaglia says.

The Southern District of California suspended jury trials in December and in January extended that suspension through Jan. 22; it had not been extended past that date at press time.

But even with precautions in place, courts aren’t immune to spreading COVID-19. U.S. District Judge Amos L. Mazzant in the Eastern District of Texas paused a jury trial in November after learning at least one juror and one attorney had become infected, according to court clerk David O’Toole.

The District of Idaho hired an epidemiologist to recommend safety measures, such as a new air filtration system, for the resumption of trials in its three courthouses, which began Sept. 1, U.S. District Judge B. Lynn Winmill says. Jury trials in the district were suspended from mid-November through Jan. 31; at press time, that suspension had not been extended.

Winmill says a woman who appeared for jury selection but wasn’t seated reported the next day she was sick with COVID-19. However, no one in the courthouse appeared to become infected, which he credits to new safety measures.

Winmill says courts need to weigh local circumstances but should try hard to do something.

“I don’t think we can just decide we’re not going to do it at all,” Winmill says. “It’s not easy, but I think we really have to make a concerted effort to try. We’ve got to keep justice moving.”

This story was originally published in the Feb/March 2021 issue of the ABA Journal under the headline: “Go-Live Debate: Judges differ on when it’s safe to hold in-person jury trials” as part of the “Keeping Up Appearances” package along with “Going Virtual: Courts attempt to balance innovation with access in remote proceedings”.


The print and initial web versions of this article incorrectly identified Brandon Draper's position at the Harris County Attorney's Office in Texas. Draper is an assistant county attorney.

The Journal regrets the error.

Meghann Cuniff is a journalist based in California who's reported for the Washington Post, the Orange County Register, the Los Angeles Daily Journal, the Idaho Statesman and the Spokesman-Review.

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