Court in the Time of Corona
A weekly temperature check on the American jury system during the COVID-19 pandemic.
FIJA's Court in the Time of Corona report provides a curated selection of news on the status of grand juries and trial by jury in various courts around the United States and around the world each week.
There has been a HUGE increase in the volume of news I'm seeing on this subject. For this edition of our report, as with the first, the articles below are organized by date. Please let me know if you have any thoughts on how better to organize them so they are of most use to you.
At this point, trials by jury are starting to resume or are on the verge of resuming in some states. Most notably, Oregon called jurors for its first jury trial in more than a month.
Some of the below stories that raise substantial concerns (those of most concern are noted in orange print). We are now starting to see three main areas of concern:
- some courts are now starting to experiment with trials by jury conducted remotely via technology rather than in person,
- judges are discussing asking defendants to voluntarily forfeit some of the protections afforded them by trial by jury, and
- courts in several states are indicating that they are willing to suspend the Constitutionally-guaranteed right to trial by jury for 6-9 months at least.
What other Constitutionally-guaranteed rights can you imagine the government being allowed to cancel for 6-9 months just for starters?
No more worship services for 6-9 months? Would firearms owners willingly hand them over to local police for safe keeping for the next 6-9 months? Would we sit quietly if the government shut down all non-government media for 6-9 months? Banned protests? Suspended limits on cruel and unusual punishment? Which of these rights would people quietly tolerate being cancelled for 6-9 months?
Please give some thought as to whether it is acceptable to you for the government to shut down the already nearly extinct Constitutionally-guaranteed right to trial by jury for 6-9 months or more. Remember, during that time, the government is still finding ways to:
- accuse and arrest people,
- incarcerate people on a pre-trial basis, and
- coerce people with the prospect of indefinite detention without a trial by jury into forfeiting their right and accepting a plea bargain or bench trial.
It sickens me to wonder as I type this if we are watching the jury system being irreparably damaged or even the beginning of the end for trial by jury.
Ireland—Donohoe Murder Trial Resumes After Nine-Week Break, Breakingnews.ie, 6 May 2020
A high-profile capital murder trial by jury that has resumed in Ireland demonstrates some measures being taken to safely allow the restoration of the right to trial by jury, such as excusing a juror who feared for his health, seating the jurors spaced out around the courtroom instead of grouped together in the jury box, and showing the proceedings remotely in a second courtroom to minimize the number of people in a single courtroom.
United States—INSIGHT: How Covid-19 Changed the Future of Litigation, Bloomberg Law, 7 May 2020
A discussion of the challenges of resuming trials by jury and the changes being considered in order to do so amidst the COVID-19 pandemic.
United Kingdom—Jammin' for Justice, RollOnFriday, 7 May 2020
A law reform and human rights organization in the UK known as JUSTICE is experimenting to determine the workability and fairness of online trials by jury.
Mississippi—Supreme Court Order Allows Jury Trials to Resume in Warren County, The Vicksburg Post, 7 May 2020
The Mississippi Supreme Court is loosening restrictions on jury trials in counties with two or fewer deaths. Warren County may send jurors jury summonses returnable no earlier than 18 May 2020.
Ohio—Making Courtrooms Safe for Cuyahoga County Common Pleas Court Jurors When Jury Trials Resume, Cleveland.com, 8 May 2020
Letter to the editor from the presiding judge of Cuyahoga County Common Pleas Court reports that when jury trials resume, everyone in the courtroom will wear masks. No comments on how lawyers and judges not being able to see jurors' faces and jurors not being able to see witnesses' faces affects the fairness of these trials.
Oklahoma—Planning Begins on Easing Restrictions to County Buildings, Muskogee Phoenix, 8 May 2020
No civil or criminal jury dockets will be scheduled in Oklahoma before August 1. Muskogee County currently plans for no jury dockets until at least September, and at that time plans to conduct juror orientation at a location outside the courthouse.
Minnesota—How Minnesota Courts Are Retrofitting for Safety Amid Pandemic, CBS 4 WCCO, 8 May 2020
Questions under consideration include how jurors will enter the building, whether they will wear masks and who would provide them, how to maintain social distancing, which courtrooms will be used for jury trials, etc. Virtual jury trials using remote technology will not be an option.
California—Coronavirus: Monterey County Aligns with State on Limited Re-openings, Monterey Herald, 8 May 2020
Criminal trials by jury are scheduled to resume starting 1 June in Monterey County. The article discusses a number of measures being put in place to mitigate safety risks associated with COVID-19.
Canada—Lawyer Says Courts Have Overreacted to COVID-19 by Delaying Trial, Calgary Herald, 9 May 2020
With trial by jury suspended for quite some time, a defendant agreed to forfeit his right to trial by jury in order to have a bench trial beginning in June. However, the assigned judge is refusing to proceed with the trial.
United Kingdom—Jury Trials Set to Resume Next Week Following Suspension Over Virus Fears, Financial Times, 11 May 2020
A limited number of new trials by jury in England and Wales will start beginning 18 May, complete with the full 12 jurors per jury despite previous discussion of paring them down to just 7 jurors each.
California—Status Of Bay Area Jury Trials, JDSupra, 11 May 2020
Presiding judges from 5 Bay Area counties participated in a panel discussion on the status of trial by jury. The major eyebrow raiser is that judges may start asking defendants to voluntarily to forfeit the protection of a full 1/3 of the jurors they are entitled to when criminal trials by jury resume.
Texas—Harris County Extends Jury Duty Suspension through June, Click2Houston.com, 11 May 2020
Harris County has kicked the can down the road a bit further with a fifth suspension of jury duty, this one extending the previous suspension that was about to expire through the end of June.
Texas—All Criminal Hearings and Jury Trials for June in Tom Green County Canceled, San Angelo LIVE!, 11 May 2020
Tom Greene County has also cancelled all trials by jury at least through the end of June.
Nevada—Washoe County Courts Continue Virtual Services, Trials Still Suspended, FOX11, 11 May 2020
Trials by jury remain suspended indefinitely in Washoe County. Judge Elliot Sattler of the Washoe County Second Judicial District Court says, "It's almost impossible to do a jury trial via Zoom."
Australia—Vic Judge Flags Socially Distanced Juries, Yahoo!News, 11 May 2020
One Australian court claimed there would be no criminal trials by jury until 2021, but others in the government started backpedaling on that statement when a defendant applied to be released on bail. Nonetheless, they would not even commit to holding her trial in August as scheduled.
Florida—Jury Trials Remain Suspended through July 2, Remote Hearings Continue, Tampa Bay Newspapers, 11 May 2020
The Florida Supreme Court has moved the date through which criminal and civil trials by jury are suspended from 29 May to 2 July. It has also extended speedy trial deadlines, which would otherwise guarantee the accused their day in court in a timely manner, from 1 June to 6 July in criminal an juvenile proceedings. This is at least the second such extension.
Georgia—Georgia Chief Justice Extends Statewide State of Emergency through June 12, Savannah Morning News, 11 May 2020
Georgia has again continued suspension of most jury trials and grand juries, extending the suspension that was originally 14 March and has once been moved to 13 May now to 12 June.
Illinois—Illinois Coronavirus: Thousands of Cases Stalled as Cook County Courts Remain Closed in Lockdown, ABC 7 Eyewitness News, 11 May 2020
Jury trials in Cook County, Illinois are cancelled at the moment. A partial court reopening is being considered for June, not necessarily including resumption of any trials by jury. Cook County Public Defender Amy Campanelli says, "I am very concerned about my clients' rights to go to trial, and the right to a public trial."
California—Monterey County Jury Trials to Resume June 1, Voices of Monterey Bay, 12 May 2020
Some defense attorneys are concerned about the resumption of trial by jury. They worry that safety measures intended to allow trials by jury to go forward will create due process problems, that the composition of juries will be skewed with people at elevated risk due to COVID-19 not attending, etc.
Indiana—Southern Indiana Federal Court Extends Suspension of Jury Trials, In-Person Proceedings, Courier & Press, 12 May 2020
Trials by jury in the U.S. District Court for the Southern District of Indiana are postponed through at least 20 July 2020. Prospective jurors with particular COVID-19-related risks may be excused at least through 24 August 2020.
Oregon—Oregon Law Forces Jury Trials To Continue, Increasing Virus Risk, Oregon Public Broadcasting, 12 May 2020
After dropping to just one trial by jury in Oregon in April, trials by jury are back on the upswing due to firm limits in Oregon state law that ensure a trial start within 180 days or a defendant be released if the defendant has not given up their speedy trial rights. One public defender has concerns that the use of masks, social distancing, etc. might result in unfair trials.
Australia—Coronavirus Restrictions Continue at Orange District Court, Jury Announcement, Central Western Daily, 12 May 2020
Some trials by jury will resume in New South Wales in June. Measures being taken to mitigate the risk of COVID-19 infection include screening jurors for symptoms when they come to court, spacing jurors out in the courtroom, increased sanitization procedures, individual meals, and selection of jurors by audio visual link.
Texas—Virtual Jury Trials May be Coming Soon to Collin County, 5 NBCDFW, 13 May 2020
Collin County, Texas is experimenting with remote trials by jury by running a summary jury trial including jury selection, trial, and deliberations via Zoom. A summary jury trial is an alternate dispute resolution technique used in civil disputes that is basically a mock trial with a verdict that is advisory rather than binding. This is being described as a test, implying that it could be used more extensively going forward.
Massachusetts—State Courts Hope to Resume Jury Trials in September, WesternMassNews, 14 May 2020
Massachusetts courts "hope" to resume trials by jury in September. Maybe. If the kids are in school. And the planets are aligned properly. (Sorry. I started getting a little sarcastic there with that last sentence. The rest is all from the article -Kirsten)
Vermont—High Court Delays Criminal Jury Trials Until September, Civil Trials Until Next Year, VTDigger, 14 May 2020
The Vermont Supreme Court has suspended all criminal trial by jury until at least 1 September 2020 and all civil trials by jury until at least the start of 2021.
Florida—'Most Troublesome' Issue: Experiment Tests Remote Jury Trial With COVID-19 Around, Law.com, 14 May 2020
Broward Chief Circuit Judge Jack Tuter is actively experimenting with mock remote trials by jury, with an eye toward the possibility of the pandemic stretching out for years. Attorneys express concerns about both in-person and remote juries being skewed during this pandemic. In-person juries could find fewer older people answering their jury summons, while online juries could wind up being "middle-class people with good internet access."
Nebraska—Federal Jury Trials in Nebraska Won't Resume Before July 3, Chief Judge Says, Omaha World Herald, 14 May 2020
Because juries are drawn from communities suffering from particularly harsh COVID-19 outbreaks related to local meatpacking plants, the chief U.S. district judge of Nebraska has decided federal trials by jury will not resume before July 3 at the earliest.
Alabama—Jury Trials Suspended Until Mid-September, The Trussville Tribune, 14 May 2020
The Alabama Supreme Court has ordered that trials by jury be suspended through 14 September 2020.
Connecticut—The Danger of Disappearing Jury Trials, During and After the Pandemic, Law.com, 14 May 2020
Officials in the judicial branch in Connecticut are talking about no jury trials until sometime in 2021.
New Jersey—Judiciary Launches Virtual Grand Jury Pilot Program, South Jersey Observer, 15 May 2020
New Jersey is launching a pilot program in Bergen and Mercer counties to conduct grand jury proceedings via remote technology.