Court system looks to slowly restart jury trials; judges, lawyers might hold sidebar conversations via text messaging

A committee of Massachusetts judgets has published a series of recommendations for how to re-start jury trials in Massachusetts that would balance the right to public trials with the need to reduce the risk of jurors, defendants, lawyers, court officers and judges not to contract a potentially fatal virus.

The Supreme Judicial Court is now seeking comments on the proposal to initially start a two-month phase of single trials with no more than six jurors in a limited number of courthouses and initially dealing with only minor charges or claims.

The courthouses would also have to take a variety of steps to reduce the chances of Covid-19 spread, from installation of virus-trapping air filters and increasing the flow of outside air into courtrooms to stationing court officers in hallways to ensure jurors don't come into close contact with each other as they go to and from courthouse restrooms. Masks would be required on everybody; court officers would have them at the ready for jurors who arrive without one.

If, after detailed consultation with court personnel and lawyers, the trials seemed to work OK, the court system would move to a second, two-month phase of more than one jury at a time - and with 12-member juries for the more serious cases - in the courthouses earlier outfitted and staffed to reduce the odds of Covid-19 spread.

The Jury Management Advisory Committee at first broached the idea of holding trials entirely remotely in meetings with lawyers, but:

Members of the bar unanimously and strongly prefer resuming jury trials in which all participants are physically present in one place, as compared to any arrangement that would rely on remote participation by jurors or others. Criminal lawyers assert strong constitutional objections to conducting any aspect of jury trials remotely. Civil lawyers were more open to presentation of some witness testimony by video-conference or in video-recorded form, as has often occurred in the past with expert witness testimony and occasionally with other testimony, but overall they feel strongly about preserving the essential features of jury trials in person.

Also:

Requiring people to be grouped together during the pandemic, however, necessitates protocols that reduce health risks to an acceptable level. The public must have confidence that the procedures implemented by the court system will not place them at unnecessary risk of exposure to COVID-19. Jurors and trial participants deserve an environment that enables them to focus attention on the trial, without distraction by fear for their health and safety caused by coming to court.

And that includes the lawyers, of course:

Attorneys are concerned about their own health and safety, especially if they fall into one or more of the higher risk categories because of age, health conditions, or having vulnerable members of their households.

The committee proposed that anybody called for jury duty who is over 70 be allowed to say no, and that any other potential jurors be allowed to postpone their service for at least a year. Jurors under 70 would be allowed to ask a judge to be just excused if they can prove they or a family member are particularly vulnerable to the virus because of any underlying condition.

Before reporting, potential jurors would have to fill out a questionnaire on whether they've had any Covid-19 symptoms in the preceding 14 days, is awaiting Covid-19 test results, is living with someone awaiting test results or has just returned from travel anywhere outside the governor's OK list, which currently consists of just New England, New York and New Jersey. At the courthouse door, court officers would take their temperature and ask the questions again; anybody whose temperature is above 100 or answers "yes" to the questions would be excluded from service.

People selected for jury duty for trials that might last a day or longer would be advised to bring their own lunch "to eliminate the need to leave the building or share food and beverages."

On arrival at the courthouse, the traditional video about the importance of jury duty would be supplemented with a new video about the importance of following courthouse directives about reducing Covid-19 risks.

Once the trial starts, parties will need to be given a way to communicate with their lawyers privately, even as they maintain six feet of distance:

Possibilities might include the use of electronic devices, with appropriate instructions to the jury, and recesses taken on request, when counsel and defendant can meet privately while maintaining distance in a conference room or other space as designated by security.

The same goes for sidebar discussions between the judge and lawyer:

The necessity of physical distance precludes sidebar conferences. Any necessary consultation between the judge and counsel will have to occur before the jury convenes or during recesses. Group text or email communications between counsel and the judge might be a feasible solution, provided the clerk is always included in such communication, and that all such communications are preserved in some manner and put on the record.

The committee also drafted a proposal for preserving the right of a public trial, within limits: To ensure social distancing, parties to a case would be given a limited number of seats in a courtroom for family members or others - and they would have to sit in assigned seats and not move around. The same would apply to any reporters who might want to cover the case.