Court system looks to slowly restart jury trials; judges, lawyers might hold sidebar conversations via text messaging
A committee of Massachusetts judgets has published a series of recommendations for how to re-start jury trials in Massachusetts that would balance the right to public trials with the need to reduce the risk of jurors, defendants, lawyers, court officers and judges not to contract a potentially fatal virus.
The Supreme Judicial Court is now seeking comments on the proposal to initially start a two-month phase of single trials with no more than six jurors in a limited number of courthouses and initially dealing with only minor charges or claims.
The courthouses would also have to take a variety of steps to reduce the chances of Covid-19 spread, from installation of virus-trapping air filters and increasing the flow of outside air into courtrooms to stationing court officers in hallways to ensure jurors don't come into close contact with each other as they go to and from courthouse restrooms. Masks would be required on everybody; court officers would have them at the ready for jurors who arrive without one.
If, after detailed consultation with court personnel and lawyers, the trials seemed to work OK, the court system would move to a second, two-month phase of more than one jury at a time - and with 12-member juries for the more serious cases - in the courthouses earlier outfitted and staffed to reduce the odds of Covid-19 spread.
The Jury Management Advisory Committee at first broached the idea of holding trials entirely remotely in meetings with lawyers, but:
Members of the bar unanimously and strongly prefer resuming jury trials in which all participants are physically present in one place, as compared to any arrangement that would rely on remote participation by jurors or others. Criminal lawyers assert strong constitutional objections to conducting any aspect of jury trials remotely. Civil lawyers were more open to presentation of some witness testimony by video-conference or in video-recorded form, as has often occurred in the past with expert witness testimony and occasionally with other testimony, but overall they feel strongly about preserving the essential features of jury trials in person.
Requiring people to be grouped together during the pandemic, however, necessitates protocols that reduce health risks to an acceptable level. The public must have confidence that the procedures implemented by the court system will not place them at unnecessary risk of exposure to COVID-19. Jurors and trial participants deserve an environment that enables them to focus attention on the trial, without distraction by fear for their health and safety caused by coming to court.
And that includes the lawyers, of course:
Attorneys are concerned about their own health and safety, especially if they fall into one or more of the higher risk categories because of age, health conditions, or having vulnerable members of their households.
The committee proposed that anybody called for jury duty who is over 70 be allowed to say no, and that any other potential jurors be allowed to postpone their service for at least a year. Jurors under 70 would be allowed to ask a judge to be just excused if they can prove they or a family member are particularly vulnerable to the virus because of any underlying condition.
Before reporting, potential jurors would have to fill out a questionnaire on whether they've had any Covid-19 symptoms in the preceding 14 days, is awaiting Covid-19 test results, is living with someone awaiting test results or has just returned from travel anywhere outside the governor's OK list, which currently consists of just New England, New York and New Jersey. At the courthouse door, court officers would take their temperature and ask the questions again; anybody whose temperature is above 100 or answers "yes" to the questions would be excluded from service.
People selected for jury duty for trials that might last a day or longer would be advised to bring their own lunch "to eliminate the need to leave the building or share food and beverages."
On arrival at the courthouse, the traditional video about the importance of jury duty would be supplemented with a new video about the importance of following courthouse directives about reducing Covid-19 risks.
Once the trial starts, parties will need to be given a way to communicate with their lawyers privately, even as they maintain six feet of distance:
Possibilities might include the use of electronic devices, with appropriate instructions to the jury, and recesses taken on request, when counsel and defendant can meet privately while maintaining distance in a conference room or other space as designated by security.
The same goes for sidebar discussions between the judge and lawyer:
The necessity of physical distance precludes sidebar conferences. Any necessary consultation between the judge and counsel will have to occur before the jury convenes or during recesses. Group text or email communications between counsel and the judge might be a feasible solution, provided the clerk is always included in such communication, and that all such communications are preserved in some manner and put on the record.
The committee also drafted a proposal for preserving the right of a public trial, within limits: To ensure social distancing, parties to a case would be given a limited number of seats in a courtroom for family members or others - and they would have to sit in assigned seats and not move around. The same would apply to any reporters who might want to cover the case.
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Based on my personal experience with jury duty, they should be able to get about 40-50 people in a big jury pool room while maintaining six feet of social distancing between potential jurors. And now they want to keep people in that poorly-ventilated space even longer? Now being called for jury duty isn't just a massive waste of time... it's a potential threat to your health!
With six-foot social distancing they might get 20 potential jurors in a courtroom for voir dire? Good luck with that.
Sure, because staying inside poorly-ventilated courthouses in close proximity to potentially infected individuals is a much, much better choice than going outside for fresh air.
Based on my experience in a
Based on my experience in a jury pool shortly before it hit the fan around here, in certain district courthouses, the poorly ventilated basement jury room could safely hold approximately 4 1/2 jurors at 6 foot distancing.
I thought about it a bit longer
How exactly do you even get six people in one of those jury boxes -- if maintaining six-foot distancing? You can only use a single row of seats and you'd have to leave at least two seats unoccupied between each juror. There may be seven seats per row (two alternates in addition to the usual twelve jurors) so basically you're talking about three jurors in the box.
How do you safely conduct deliberations in tight quarters? What do you do about jurors who refuse to wear masks or even wear them properly?
Seems like lots of thought has been given to pretty much everyone in the process except for the jurors -- which is pretty much par for the course for the court system.
That's why they're limiting the courts that can hold trials
And limiting the number of trials in those courts that do.
So BMC, in the big, new modernish building, has plenty of space with which to space out jurors. And at least in the first two months, there will only be one jury trial per day allowed.
I didn't mention it in the story, but one of the recommendations is to look at renting non-courthouse spaces for trials if need be.
Adam, how many trials are
Adam, how many trials are normally scheduled for a courthouse such as BMC?
Jurors under 70 would be
Better idea. Allow jurors to request to be excused due to underlying condition (either theirs or a family member) when they return the initial notice they've been selected for jury duty.
Being over 70 is already a
Being over 70 is already a voluntary disqualification for jury service in Massachusetts so it's somewhat peculiar for them to propose something that actually formally exists as part of their own process.
Yup, it's already too late
by the time they're standing indoors in the courthouse.
In such a situation, I would have to consider lying about symptoms so that I would not have to enter the courthouse. :-/
Need to embrace tech
Is there a way to conduct remote trials and is it allowed under state law/constitution? We are going to need to rethink the criminal justice system for a post-Covid society. The alternative is pray for a fast vaccine and drop most/all pending cases if one isnt available by end 2020 or so.
Jurors watching remotely via zoomlike app from distanced locations (perhaps hotels with empty conference space) seems like the best way to proceed if possible. Maybe we could use empty stadiums and arenas for jury selection?
The article expressly covers
The article expressly covers this idea, with lawyers considering and rejecting it.
DOES ANYBODY KNOW HOW TO SEE
DOES ANYBODY KNOW HOW TO SEE THE STATUS OF MIDDLESEX PROBATE AND FAMILY COURT CASES BESIDES GOING TO MASSCOURTS.ORG. ??
It would be really, really
It would be really, really horrible to be called for jury duty right now.
I haven't been inside any buildings other than my house since March. I do not want to be crammed into a courtroom involuntarily.
Ok, 1-year postponement. Great. That's not even a new option -- you can always get that. Let's just hope things are better in a year.
What kind of people would choose to show up
under these circumstances? I don't think I'd want such people on my jury if I were on trial.