There's a pretty big internal debate going on with the SDFLA judges about whether to restart jury trials in April (as currently scheduled) or whether to postpone them again, either until the summer or fall.
With virus numbers at all-time highs and with the new variant, it doesn't seem likely that we will be ready to restart jury trials in April. For in-custody defendants, that would mean transportation of the defendant to and from FDC, use of the marshals, interpreters, court security officers, staff, prosecutors, defense lawyers, family members, jurors, and so on. In other words, lots of risk...
Other districts that have tried to conduct trials have failed to keep the participants safe, pretty miserably. For example, in in November, the EDTX tried to conduct a civil trial. At least 13 people came down with COVID:
David O’Toole, clerk for the Eastern District of Texas, told Law360 on Tuesday that the number of trial participants who tested positive for coronavirus had increased from at least seven on Friday to 13 confirmed positives Tuesday. The positive cases include two jurors, at least three members of the defense team, a “handful of folks” on the plaintiff’s team, and three or four court staffers.
The outbreak occurred after testimony in the trial had begun:
Jury selection was held on Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Nov. 9, according to court records.
After lunch on Nov. 9, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.
The judge then suspended the trial and asked participants to get tested and provide the court with results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.
That case didn't have the added problem of in-custody defendants who are at much higher risk for contracting and spreading the virus.
If we restart in April, would everyone be wearing masks? Is that fair to the defendant? Or the prosecution? How could jurors evaluate a witness wearing a mask? How could lawyers communicate effectively with jurors if they were wearing masks? Wouldn't the jurors be concerned the entire time about getting sick? Would you be able to get a fair cross-section of jurors if many of them would be seeking to be excused (justifiably)?
On that last question, here's an article from the Texas Tribune that explains some of the issues:
For example, disproportionately white juries were already a problem before the pandemic. With the coronavirus disproportionally harming Black and Hispanic communities, many defense attorneys fear fewer people of color will show up to a jury summons, as at least one Texas study has already predicted. And masked jurors and attorneys shield one another not only from germs but also from facial expressions, often crucial in trials.
Even more concerning, attorneys say, is that fewer people are showing up. The state report on trials through September said most courts saw about a 5% to 10% drop in people reporting for jury duty during the pandemic. A June survey by the Tillotson Law Firm of 650 potential jurors in Dallas and Houston showed a majority said they wouldn’t go to court if summoned without being ensured of adequate safety precautions. The number was higher for Black and Hispanic respondents.
“We know that African Americans, Latinos and other people of color have been disproportionately affected by COVID-19,” Scheiner said. “If they don’t show up for jury service in as great a percentage as they have in previous years, it may be impossible for minority defendants to have anything close to a jury of their peers.”
It's hard enough to get a fair jury during normal times. But during a pandemic... Here's an AP article explaining that people, understandably, just aren't showing up for jury duty.
There's also the problem of how to prepare for trial with an in-custody defendant. It's difficult (and dangerous) to get into the jail right now to see clients. In fact, FDC is closed again this week to all visits.
I've spoken to a lot of criminal defense lawyers on this subject and the vast majority have said that we should not be trying cases in April, unless -- and this is the big caveat -- the defendant insists on a speedy trial. In that case, of course, the Constitution trumps and we'd have to figure out a way to conduct a trial.
It will be interesting to see how our Court, with extremely thoughtful judges on both sides of the debate, addresses this important issue.
