Courts across the country are facing a daunting task as they look to restart jury trials.
A recent attempt to hold a trial in Ashland County during April and early May showed how easily a trial can go wrong. On April 28, the first day of jury selection, the defendant, Seth Whited, began either having a panic attack or displaying symptoms of COVID-19 while in the courtroom.
“My client could not breathe, had to pull his mask off, started shaking, was sweating, had the fever by the time he got to the hospital,” said Whited’s attorney Adam Stone. “We had to carry him out of the courtroom. And at that point I knew we could not go forward.”
Whited’s test for the coronavirus came back negative. The trial was rescheduled for May 12 and then delayed again until June 29.
The judge in the case, Ronald Forsthoefel, in his order delaying the trial, decided the case could proceed safely and what happened to Whited was not caused by COVID-19.
'A Horrible Choice To Make'
Regardless of what caused his client’s illness, Stone said he was uncomfortable with the proceedings from the very beginning.
“I would feel comfortable once I know the safeguards have been put in place and, for lack of a better term, it's been blessed by the medical community,” said Stone.
In the Whited trial, Judge Forsthoefel instituted a series of safety measures to maintain social distancing. Jurors sat in the seating normally used by the public instead of the jury box. The lawyers’ tables and the witness stand were moved so everyone was at least six feet apart. Masks were required when moving around the courtroom but not when stationary.
One of the observers of the April 28 livestreamed session was Ian Friedman, president of the Cleveland Metropolitan Bar Association. Friedman said the safety measures brought hard questions for any defense attorney.
“Would I keep my mask on to be safe and then I can't talk to my client? I can't speak clearly. Court reporters can't hear me,” Friedman said. “Or am I going to take it off so that my client gets the best of me but then put my health in greater jeopardy? I mean, what a horrible choice to make.”
Working Group Guidelines
Friedman is also chair of a working group that recently sent recommendations for restarting jury trials to the Ohio Supreme Court. Every county and municipal court in Ohio makes its own rules. But the group surveyed prosecutors, defense attorneys, sheriffs and court personnel to find out what each thought would be needed to restart. Each group offered different recommendations.
According to the Ohio Prosecuting Attorneys Association, the coronavirus has peaked in Ohio and jury trials should resume. They recommend clear face shields for witnesses and social distancing for jurors.
Friedman said the prosecutors’ recommendations and their eagerness to resume trials reflects the different experiences between urban and rural parts of the state.
“There’s a split in the severity, the gravity of this pandemic. Some people are not leaving their homes, others are,” said Friedman. “And you see that also within the legal system.”
Criminal defense attorneys are reluctant to move toward video witnesses and skeptical that they can provide effective counsel with social distancing requirements.
There are also issues with keeping jurors safe. Social distancing in a jury trial is a problem from beginning to end.
Usually, hundreds of potential jurors come into a large courthouse like Cuyahoga County’s in the morning and sit shoulder-to-shoulder in a confined space waiting to be called. The selected jurors sit in a jury box that offers no space for social distancing. They deliberate in a small, closed room at the end.
Some of the solutions being considered include larger, off-site locations for jury selection. Selected jurors could be spread out among the benches where the audience usually sits. The audience could remotely watch a livestream.
The Franklin County courthouse has already installed plexiglass partitions between every participant in its courtrooms.
“We have to have all of this decided before we bring people into the courtrooms because if we make a single mistake in the room, if we realize mid-trial that, hey, maybe we should have done something different, the consequence could be grave. Someone could die,” Friedman said.
End of July Deadline
In Ohio, the Supreme Court allowed courts across the state to delay trials through July. Cuyahoga County Administrative Judge Brendan Sheehan said his court is working daily to be ready to go by then.
“We could have an average of 300 people with 34 courtrooms into this building on a single day for jury service. And with social distancing, we do not have the capability to do that,” said Sheehan.
So they’ve started a call-in system to reduce the number of potential jurors who will come to the Justice Center. The goal of their preparations is to make sure jurors feel safe when they get called for jury duty.
“When things were normal, people got their jury summons, they were upset, they were disgruntled that it would disrupt their lives,” Sheehan said. “Imagine today, getting a jury summons, what that would do to an individual?”
Sheehan said Cuyahoga County also plans to excuse jurors who are especially vulnerable to coronavirus if they don’t feel comfortable serving.