Jury trials at crossroads

  • The current jury box of Hampshire Superior Court 2.   GAZETTE FILE PHOTO

Staff Writer
Published: 8/11/2020 5:45:32 PM

NORTHAMPTON — Jurors listening to a trial from the courtroom’s gallery. Witnesses testifying to a room full of face-masked people from behind plexiglass or a face-shield. Attorneys navigating new rules regarding the passing around of exhibits.

These are only a few of the recommendations the Jury Management Advisory Committee of the Supreme Judicial Court (SJC) issued late last month regarding the resumption of jury trials in the state after they were postponed in March due to the pandemic.

The committee’s main recommendation is to resume jury trials in the state on a phased basis, similar to Gov. Charlie Baker’s economic reopening plan. The pandemic has created a backlog of cases and while emergency proceedings were heard over telephone or video conference, most everything else was postponed.

For some local attorneys, resuming the state’s jury trials is a tricky issue of balancing a person’s legal rights and public safety.

“I think that it is important that we start giving some thought, just like people were thinking about reopening schools, to resuming jury trials,” said Northampton defense attorney David Mintz. “It’s going to have to be done creatively.”

Under the proposed plan, jury trials would begin with “Phase 0,” a mock run-through of a trial with new COVID-19 precautions sometime in August.

During “Phase 1,” which would last about two months, trials would have juries of six (seven or eight with alternates) conducted one at a time in a small number of locations that meet certain safety criteria. This phase would include civil cases or criminal cases involving minor charges where the defendant is not in custody.

After this, “Phase 2,” would last approximately two to four months and allow for trials in a limited number of locations and for juries of 12 (14 or 16, with alternates), with cases tried being of the “highest priority,” such as criminal cases where the defendant is in custody. In “Phase 3,” jury trials would be conducted as frequently as possible, even in non-courthouse spaces, until herd immunity or a vaccine for COVID-19 is available.

This method for resuming jury trials has yet to be set in stone; the SJC is taking public comment on the potential plans until Aug. 14.

Stalled cases

First Assistant Northwestern District Attorney Steven Gagne said that many criminal cases have “stalled out” due to the halt put on jury trials. There has been no grand jury impaneled in Hampshire or Franklin counties since March, only adding to the backlog of cases, though Gagne said new local grand juries are likely to be impaneled in September.

If a case sits on the shelf too long, Gagne said the memories of witnesses can fade, people can move away, victims have to wait longer for justice and for a defendant, especially one who is held in custody awaiting trial, “there is a deprivation of liberty that they are suffering.” He said he doesn’t believe the court system can stay on hold until there’s a COVID-19 vaccine or herd immunity, because there’s no way to know how long that will take.

“Nobody thinks it’s a good thing for these cases to be pending longer than they have to,” Gagne said.

Gagne said he thinks that it’s necessary to “at least start the process” of resuming jury trials but noted that even under the recommendations proposed by the SJC, “we’re realistically not looking at resuming anything close to normal trial levels until early next year.” He said he’s glad the recommendation is to resume jury trials incrementally.

“As the report states, if at any time it appears as though COVID numbers start increasing again,” Gagne said, “they may have to shut the whole thing down again and start from scratch.”

The report highlights potential new ways to set up courtrooms by spacing jurors out into the gallery and even moving attorney’s desks to configurations much different than what a normal courtroom looks like. But Gagne stressed the importance of taking it slow.

“Although I think significant precautions are being taken, nobody knows for sure just how well it’s going to work,” he said. “If we rush into this and dozens or hundreds of people become infected, that would be the most massive failure imaginable.”

Alfred Chamberland, an Easthampton defense attorney, said that it is “essential” that jury trials be done in person, as a defendant under the Sixth Amendment has the right to confront and cross-examine witnesses.

“The problem is, can we safely conduct jury trials at this point in time? And what will those jury trials look like?” Chamberland asked, noting that while jury trials have been technically postponed until Sept. 8, the reality is the courts are scheduling trials for January and February.

Chamberland also raised concerns about the jury selection process; the recommendations would allow anyone to defer their jury service for a year. And though the recommendations do address the issue of maintaining physical space between trial participants, Chamberland said some members of the public may not want to risk their health.

Mintz said he takes issue with the requirement that everyone in the courtroom must wear a face mask, as he said there is an important emotional nuance that would be lost between attorneys and the jury. He said requiring everyone to wear face shields may serve as a suitable alternative. The recommendations say face masks are more effective at curbing COVID-19 transmission. Mintz said he isn’t sure if the time is right to start jury trials if there will be restrictions that make such important courtroom dynamics impossible.

“I understand why that requirement is floated,” Mintz said of the face masks. “But I think that would really undermine the whole effort, in my opinion.”

Chamberland said that he doesn’t think the SJC is going too fast in looking to restart jury trials. He noted that there are still many people who are currently incarcerated and have been waiting for months for their day in court — which he said should be before the trials of those who aren’t in jail. He suggested having trials outside, as he said this occurred during the 1918 flu pandemic.

“We’ve got to get those people their trial date,” Chamberland said. “We need to find a way to do that.”

And even attorneys themselves are concerned about the potential of contracting COVID-19 in the courthouse once jury trials begin again. The Massachusetts Association of Criminal Defense Lawyers in late July released a letter to the judiciary blasting what they described as minimal safety protocols implemented in re-opening courthouses.

“I’d rather not unless I absolutely have to,” Mintz said about going into courthouses.

Michael Connors can be reached at mconnors@gazettenet.com.


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