Federal Judges Reinventing the Jury Trial During Pandemic

These days, the work of a U.S. district judge can seem a lot like “building an airplane while you’re flying it,” says Judge Karen K. Caldwell, one of the first federal judges to resume jury trials after the coronavirus (COVID-19) pandemic bloomed like ocean algae in the United States this past spring.

Caldwell, of the District of Eastern Kentucky, is among a group of judges around the country who are reinventing the jury trial so that it is not only a fair forum for the administration of justice, but also a safe experience for everyone in the courtroom, including defendants and jurors.

The effort has required judges and attorneys to rethink a trial at every stage, from the voir dire process of selecting a jury to the deliberations stage and the handing down of a verdict. Several judges interviewed for this series said they have found that trials can be conducted safely when following new, sometimes improvised protocols designed to protect health and safety.

These protocols include reconfiguring courtrooms and jury deliberation spaces to allow at least six-feet of social distancing by participants, the liberal use of masks or transparent face shields or both, the strategic placement of plexiglass barriers, vetting prospective jurors for health vulnerabilities or fears of exposing loved ones, reliance on technology to present evidence, and the constant cleaning of furniture and surfaces.

“Every day we evaluated and reevaluated our processes, and made adjustments throughout the trial,” said Judge Caldwell, who presided over an eight-week drug trafficking trial in April. “Every judge has to do it differently, depending on how busy it is in the courthouse, how bad the virus is in the community, and whether there are any active cases in the courthouse. There are so many variables, you could never come up with a plan that fits for everyone. But we trial judges are very adept at having to adapt and modify a plan on short notice. This is just another one of those situations, although on steroids.”

Judge James C. Dever III, of the Eastern District of North Carolina, decided to go forward with two separate jury trials in May after determining they could be conducted safely. The defendants in each case had pleaded not guilty and both wanted their day in court. Dever and other judges are acutely aware of the right to a speedy trial guaranteed by law and by the Constitution.

“There is no pandemic exception in the Constitution,” Judge Dever said. “And the Constitution has stood the test of time for more than 230 years.”

Charity Wilson, an assistant U.S. attorney who prosecuted one of the cases, said she too wanted to move forward and felt it could be done safely, given the adjustments Judge Dever made to impose social distancing and other safety precautions. For example, she said, during voir dire, the judge made it clear that anyone who felt uncomfortable could be excused from serving.

“At some point, you have to try these cases,” Wilson said. “When defendants are saying they are not guilty, the burden is on the government to prove the charges.”

Courts resuming jury trials generally tend to be located in parts of the country where coronavirus numbers are trending downward. Many courts located in “hot spots” continue to delay jury trials out of concern about exacerbating outbreaks. The federal court in the Southern District of Florida has issued an order delaying the restart of jury trials until next year, while courts in Colorado, Arizona, Northern Georgia, and Northern and Central California have postponed them until the fall. 

The hands-on experiences of judges who’ve tried cases so far have mitigated one of the biggest concerns among judges and attorneys – that the fear of getting sick would make it impossible to empanel juries reflective of their communities. In the United States, criminal defendants have a right to a jury that is impartial and representative of a cross-section of the community.

COVID-19 has had a disproportionate impact on African Americans, Hispanics, and older Americans. That fact was on Chief Judge Barbara M.G. Lynn’s mind when she began planning for the first pandemic-era jury trial in the Northern District of Texas. Along with the typical questionnaire, she sent prospective jurors a letter that explained the safety measures the court was taking and a form for them to list valid reasons to be excused, such as a job in health care or another essential industry or being in a health or age-related risk category for COVID-19.  

During jury selection, she brought in small groups of people, rather than one large group, to make it easier to maintain distancing. And she conducted the sessions with the attorneys on the first floor of the courthouse, eliminating the need for participants to be confined in elevators.

“They could see the seriousness with which we were taking this,” Judge Lynn said. “I was wearing a face shield, as were some of the lawyers. Others were wearing masks. We were all seated in the front of the room behind plexiglass. And (the prospective jurors) were checked in by a person behind plexiglass.”

Only one person opted out at that point, a woman who said she was concerned about bringing the virus home to an elderly parent. The jury that was ultimately seated included five African Americans, two Hispanic citizens, and people of varying ages. “So it was quite a representative jury,” Lynn said.

After the trial, she shared with other federal courts her playbook describing the steps she took to conduct a successful trial, after which no one fell ill with COVID-19. Federal judges also now have at their fingertips a new guide published by a group of judges working with staff from the Administrative Office of the U.S. Courts. It’s called Conducting Jury Trials and Convening Grand Juries During the Pandemic.

Innovation was a key element in Judge B. Lynn Winmill’s toolbox when he decided to conduct one of the first pandemic-era trials in Idaho. His court hired an epidemiologist to evaluate the measures put in place to prevent the spread of the virus. On the expert’s recommendation, the court adjusted the air circulation system so that every hour, the courtroom was replenished with 100 percent fresh air from the outdoors rather than a mix of fresh air and recycled indoor air.

“I think we made some pretty extraordinary efforts,” Judge Winmill said. “It wasn’t perfect, but it worked.”

Yet as more courts gradually consider restarting jury trials, challenges remain. Judges, attorneys, and others in the legal profession continue to debate whether jurors in masks present disadvantages to lawyers on both sides who pride themselves on reading facial expressions. Some courts remain unconvinced that multiple-defendant cases can go to trial safely because of the difficulty imposing social-distancing on a large group of defendants, family members, lawyers, and members of the media. There is also the question of how to keep people safe when courthouses are fully reopened to the public and trials are taking place concurrently, bringing more people together at once in indoor spaces.

“It’s a period of trial and error,” said Tony Gallagher, executive director of Federal Defenders of Montana. “We’ve all been involved in the planning process, changing procedures and protocols where necessary – our district COVID-19 committee, the GSA, the marshals, the defenders, the assistant U.S. attorneys, the judges, and the clerks. I don’t know what more our court could do other than somehow find a cure for COVID-19.”