Judges Try To Balance Legal Rights And Courtroom Health

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Yves here. It’s stunning to see judges be more cavalier coronavirus risk about than the local Y and Jewish Community Center here in the supposedly retrograde South. But the fact that the judge in this story pulls down his mask to speak (and the author doesn’t call that out) tells you what you need to know. These gyms are requiring the use of masks (except when exercising, which pretty much negates the point) and is enforcing very low density, spreading out machines and allowing only a maximum number of people in for pre-set time periods (50 minutes on weekdays, an hour and 15 minutes on weekends), and then requiring everyone to exit while the staff spends a half hour cleaning the equipment before the next group comes in. Oh, and only one person can use the bathroom at a time.

By contrast, if you think jury rooms are cleaned (as opposed to just having trash removed and spills wiped off) with any frequency even now, I have a bridge I’d like to sell you. And as for people testifying not being able to wear a mask, what about clear face shields?

By Brian Krans. Originally published at  California Healthline, a service of the California Health Care Foundation

This KHN story first published on.

It’s tough getting people to report for jury duty in normal times. It’s even harder during a pandemic.

The kidnapping and rape trial of Kenneth Weathersby Jr. opened Feb. 24 in Vallejo, California, but three weeks later two jurors refused to show up after the state ordered people to stay home. Then the state’s chief justice stopped jury trials for 60 days, later extending the suspension into June.

Eventually, Solano County Superior Court Judge Robert Bowers had had enough.

At 10:24 a.m. on May 20, Bowers called the jurors who were left ― 11, and an alternate ― into Courtroom 101. Bailiffs offered each of the six men and six women a squirt of hand sanitizer before showing them to their seats. Four were led into the jury box, the rest to the gallery, with yellow tape covering groups of three seats to enforce social distancing.

“Citizens have a right to trials,” the tall, furrow-browed Bowers told the jurors, pulling down his blue mask to speak. “We have to find a way going forward.”

Solano was the first California county to resume a jury trial. Three others — Contra Costa, Santa Clara and Monterey — have notified Chief Justice Tani Cantil-Sakauye that they are resuming trials in the coming weeks, despite rising COVID-19 infection rates in the state.

In reopening, judges are trying to balance the constitutional rights of the accused to a speedy trial against the safety of jurors, bailiffs, clerks, attorneys, court reporters and others who work in their courthouses.

But courtrooms can be snug. Jury rooms almost always are. It will be very hard for people to keep the recommended distance, even as they abstain from the usual buttonholing, emoting and hugging in courthouse hallways.

Judges are conferring with health departments to limit the risks. Some courts, but not all, are requiring masks. Some are checking people’s temperatures before allowing them to enter the courthouse. Others may install plexiglass or plastic barriers.

Gone, for now at least, are the days when jury duty began with scores of prospective jurors packed into halls and waiting rooms. Courthouses in Contra Costa and Monterey are staggering the times and days of the week when potential jurors report, and calling only 50 people at a time to prevent large groups from gathering. Some are adding temperature checks to their usual security screenings.

“If they have a temperature over 100, they won’t be allowed in,” said Barry Baskin, presiding judge for Contra Costa County.

All the courts resuming trials say they’ll allow people to delay jury duty if they have concerns about the coronavirus. “We’re doing everything we can for their protection,” Baskin said.

Forty-eight states and territories — all except Illinois, Nebraska, Nevada, Ohio, South Dakota, Texas, American Samoa and the U.S. Virgin Islands — have restricted jury trials, according to the National Center for State Courts. So far, 14 states have reported coordinated statewide plans to reopen. California isn’t one of them.

At the federal level, decisions to resume jury trials are made on a district-by-district basis. All federal courts moved hearings to videoconferencing on April 8.

Health concerns and the legal rights of the accused are bound to be in conflict sooner or later in every jurisdiction.

Under the U.S. Constitution’s Sixth Amendment, defendants have a right to confront their accusers in a speedy public trial by a jury of their peers. In California, trial is supposed to start within 60 days of arraignment for a felony case and within 45 days for a misdemeanor. The chief justice’s order can provide relief from those deadlines on a case-by-case basis in the interest of public safety.

Still, some counties are reluctant and want Cantil-Sakauye to delay trials into July. The chief justice’s ruling allows courts to reopen earlier if they can do so “in compliance with applicable health and safety laws, regulations, and orders, including through the use of remote technology, when appropriate.”

“The further we get away from the height of the pandemic, the more likely people are to show up,” said Alameda County District Attorney Nancy O’Malley, president of the California District Attorneys Association.

“We are still hoping and pressing that people will respond,” said Chris Ruhl, court executive officer for Monterey County. “Jurors are real heroes in these times.”

While health officials recommend masks to prevent the spread of the coronavirus, testifying while wearing one may violate the Sixth Amendment, which allows a defendant to literally face their accuser, Baskin said.

The U.S. Supreme Court determined in Coy v. Iowa in 1988 that witnesses can’t testify behind curtains or other visual obstructions. In the current pandemic, the Ohio Supreme Court ruled in April that witnesses must lower or remove their masks when testifying.

Courts are looking to erect plexiglass barriers around witness stands, or have attorneys and witnesses wear clear plastic face shields, so everyone in the courtroom can see and hear what is said.

But mandates for such measures will come on a county-by-county basis. That frustrates Oscar Bobrow, chief deputy public defender in Solano County and the president of the California Public Defenders Association. He wants a consistent state policy and notes that Ohio released a 93-page guide to resuming jury trials after consulting with people from across that state’s legal community.

Bobrow worries that fear of infection will result in juries with fewer African Americans and Hispanics, two groups that have suffered the brunt of the pandemic. People over 60 might also be reluctant to appear; some counties would exclude them from jury service, according to guidelines posted on various websites.

“The whole process is going to be slowed down, if it’s done right,” he said.

If courthouses don’t do enough to protect jurors from the virus, the panels may be unable to concentrate on testimony. “You’ll be more worried about someone sneezing than what’s being said to you,” Bobrow said.

When Weathersby’s trial resumed May 20, fewer than 25 people sat in the courtroom, which has a new maximum capacity of 53. Yellow tape over seats assured they sat at least 6 feet apart.

Masks were “strongly recommended” but not required — and four jurors declined the ones offered by bailiffs.

“We have a balance of personal freedoms and human protections,” Bowers told the jurors. “This is the new norm. This is what jury trials will look like in the future.”

The jury found Weathersby guilty on 10 counts, including forcible rape and kidnapping to commit rape. He faces multiple life terms at sentencing, scheduled for July 14.

 

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8 comments

  1. The Rev Kev

    I’d say that the only practical solution would be to conduct trials by video-conferencing. Already courts take testimony by video from people in prison or say, overseas. The public can view this as well in the same way that people can go into an open trial. When it comes time for a jury to deliberate, then they should be able to switch over to an encrypted channel just for the twelve of them.

    If juror’s do not have a computer, then the court should see that they are lent laptops for the duration of the trial that have everything restricted except what is needed for the trial. When the laptops are returned, then they should be thoroughly wiped and a fresh image put on that laptop for the next person to use. Jurors will be mailed out log-on details for their participation as well I should have mentioned.

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  2. carl

    Jury trials are really the only problematic aspect to reopening the courts. All other proceedings can, and pretty much are where I am, be held remotely. Not mentioned in the piece is the potential for much greater efficiency in court processes. I attended a court hearing through Zoom this week which took much less time than a personal appearance. I believe that once everyone in the system realizes how much better remote proceedings are, we’ll never go back and the old ways.

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  3. LawyerCat

    From my practice in criminal cases in the Southeast US (Nashville,TN) – the courthouse is reopening pretty much in full starting this month.

    The good – everyone’s temperature is being taken before entering the courthouse and masks are being handed out at the courthouse entrance after the security gates. Some of the court dockets are being staggered in time to try to limit the number of people in the building/hallways at one time. Also, a few of the courts are pushing strongly for remote hearings via phone and videocalls.

    The bad – None of the preliminary courts, where the case loads are probably ten times higher than the next level up, have any provision for remote hearings or testimony and, anecdotally, the judges have opposed it when proposed. On a normal day, case loads and human traffic overloads the building capacity – it can take five or ten minutes to get on an elevator – so I’m suspect that social distancing in enclosed spaces for hours at a time will do much to mitigate viral spread.

    The ugly – Judges who don’t wear masks at all; even if they’re physically separated from the rest of the courtroom, it’s a bad example. Also, a judge demanded I remove my mask when addressing him (many of the other attorneys do this as a matter of course) because he was having trouble hearing me. So partly my fault, but still. Much of the court staff and attorneys also don’t cover their noses with masks and are touching their faces constantly to raise and lower them or adjust the masks.

    It’s especially disconcerting because people are at their most compliant in a courthouse, especially attorneys and court staff, and it’s still a mess. And that’s without even mentioning the attorney who openly voiced his theories about COVID being a cultish conspiracy theory and all the others who somehow think that it’s a brave political statement to complain about how uncomfortable and unnecessary they are every time they touch the masks on their faces.

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    1. carl

      Ugh. Thanks for the reminder that not everyone is going to use this as an opportunity to do things better. What happens when your duty to your client conflicts with the risks to your health?
      Another thought: we should look to the federal courts to see what they’re doing. In my experience, they’ve always been much further along with the use of technology in the courtroom.

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      1. LawyerCat

        Our second level courts, called Criminal Court, are more analogous to the Federal courts, and have been better about implementing remote hearings and limiting appearances by witnesses and the accused more generally.

        But our first level courts, called General Sessions, are extremely informal, rarely on the record, and operate more like judge and district attorney-led fiefdoms than courts of law. They have ten times the number of cases as the Criminal Courts (they operate like a filter) and are the least adept at implementing technology. They are so chaotic compared to what most people probably imagine a courtroom to be like that it’s hard for me to imagine how they could adopt to reasonable COVID precautions without a complete rethink of all their procedures.

        Luckily in my practice, we’ve been able to cover for attorneys with health risks or that have family members with health risks. And we’ve been able to switch entirely to remote visits with clients, which is not without frustrations, especially at the private jail and prison operated by Correctional Corp of America.

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        1. carl

          Sounds roughly like the differences between misdemeanor and felony courts here, although the judges are more unified in their approach to this new challenge. The number of misdemeanors vastly exceeds the felonies. We still have the county jail, which houses most prisoners, and has been cooperating in allowing remote visits and court proceedings. Of course, the point of the article is that, without the stick of jury trials, the resolution of cases is eventually going to stop.

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      2. Jack

        From personal experience I would say mask wearing impedes the ability of the listener to satisfactorily hear a speaker. I would think in jury trials it would be a virtual lock that one or more jurors would not be able to fully understand what was being said. This is a serious issue. Also, in cases where the truthfulness of witness testimony is sometimes gauged by body language-whether that’s valid or not- the use of masked testimony can be a problem

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        1. PrairieRose

          Exactly this. Jurors are charged with the task of deciding as to the credibility of a witness’s testimony. Impossible to do remotely. Judging a person’s facial expressions is also impossible with a mask. Deliberations in a small, cramped jury room for hours and hours also impossible. How can a person be judged by a jury of his/her peers when half the jury pool either can’t or won’t serve as jurors because of legitimate COVID-19 concerns? And defendants deserve a speedy trial and to confront their accusers. There just aren’t any easy answers.

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