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Even the Rocket Docket

The US District Court for the Eastern District of Virginia is the fastest federal docket in the country. The court’s motto is “Justice delayed is justice denied.” But, as they say, the virus doesn’t care about your motto. Yesterday evening, the Clerk of Court sent out this email:

“All criminal jury trials in the US District Court for the Eastern District of Virginia are temporarily suspended, with criminal jury trials to resume on January 19, 2021, absent further Order from this Court. Such temporary suspension is in response to the significant increase in COVID-19 cases, hospitalizations and percent positivity in our District; the increase in known and suspected COVID-19 exposure of court personnel and court users; and the recent statewide and local community actions increasing restrictions aimed at curbing the spread of COVID-19.”




Federal Court “Open and Accessible” in Chicago with Trials Suspended Indefinitely

Illinois presently has the largest number of daily new cases of COVID-19. On Friday, the US District Court for the Northern District of Illinois issued a new general order:

  • All civil and criminal jury trials are suspended indefinitely.
  • All civil hearings will be conducted remotely. No motions will be noticed for presentment. (A feature of Chicago federal practice pre-pandemic was that every motion was presented in person to a judge before full briefing was ordered.)
  • All public gatherings are suspended.

Other than that, the Order states, “this Court remains open and accessible.”




Eastern District of Texas: The Jury Will Return in Three Weeks

An update on our last item. After a federal jury trial in Sherman was shut down due to multiple participants (including a lawyer and a jury member) being diagnosed with COVID-19, the court held a telephone hearing on Friday afternoon and then issued the following minute entry:

Parties agree to proceed with trial on 11/30 assuming no jury concerns or issues. Court will verify the current CDC guideline and protocol and make sure that all counsel, staff, and jurors abide by that guideline prior to resuming trial. Parties agree to proceed with initial charge conference on 11/17/2020 by telephone with final conference by 11/20/2020. Upon resuming on 11/30/2020 the Court will allow each side a brief 10 minute summary due to trial delay.




It’s Dangerous Out There: COVID-19 in Texas Court

The Eastern District of Texas has been steadfast in pushing forward with scheduled jury trials. Last week, a trial began before Judge Amos Mazzant in Sherman.  It has not concluded. Texas Lawyer reports:

Multiple court participants, including a lawyer and juror, have become infected with COVID-19 during a federal jury trial, causing the judge to put the case on pause.

 

US District Judge Amos Mazzant of Sherman paused the jury trial upon learning of the first coronavirus diagnosis, which occurred sometime in the last 48 hours.

 

Because others involved in the trial are still getting tested for the virus, it’s not yet clear how many people in the trial became infected, said court clerk David O’Toole of the US District Court for the Eastern District of Texas. He did confirm that multiple court participants became sick.

 

“At least one of them was a juror,” said O’Toole. “There was at least one lawyer involved who tested positive. We want to be very careful not to identify people by name or their role, which would make figuring out who it was fairly obvious.”

 

O’Toole declined to comment when asked if Mazzant had tested positive. Mazzant declined to comment through his judicial assistant, Terri Scott.

 

“It is not appropriate for Judge Mazzant to talk to the press about an ongoing case,” said an email by Scott.

 

The Sherman courthouse is closed for sanitization, and O’Toole said he expected it to reopen on Nov. 16. The thorough, deep cleaning will focus on all of the areas of the courthouse where the trial participants spent time, O’Toole said.

Following a death in a juror’s family, the jury was already down to six before this disruption.




Seeking Haven in the Sunshine State

With the weather in Washington turning cool and miserable, we look to the Sunshine State of Florida, where we thought we saw signs of reopening. The US District Court for the Southern District of Florida is following the local school systems, announcing: “In light of the announced reopening of public schools in Miami-Dade, Broward, Palm Beach, St. Lucie and Monroe Counties, the United States District Courthouses in Miami, Fort Lauderdale, West Palm Beach, Fort Pierce and Key West, including Bankruptcy and Probation, will reopen on Tuesday, November 10, 2020.”

But, but, but…Chief Judge K. Michael Moore issued Administrative Order 2020-76, which provides, among other things: “All jury trials in the Southern District of Florida scheduled to begin on or after March 30, 2020, are continued until April 5, 2021. The Court may issue other Orders concerning future continuances as necessary and appropriate.”

The April 2021 date is significantly further in the future than most courts have gone. And notably, some judges in the district have not taken their upcoming trials off the calendar or relieved parties of their obligations to comply with pretrial deadlines.




Iowa, New Hampshire, South Carolina: Court Closings across Jurisdictions

The headlines about COVID-19 hospitalizations are bleak, and flowing from them come a stream of court orders pushing off trials. The Iowa Supreme Court has put a hold on all jury trials until February 1, 2021—the latest we’ve seen.

From Iowa, naturally, we move to New Hampshire, where a trial scheduled to begin Thursday was canceled in light of rising infection rates and “limited air circulation” in the courthouse.

Then on to South Carolina, where Charleston saw its first jury trial since February—a one-day criminal trial conducted yesterday. Plexiglass dividers were installed, temperatures were taken and masks were required, including for the judge. But this occurred against the background of criminal defense lawyer Chris Adams telling ABC-4 News in Charleston: “If we’re forcing people into an enclosed room, somebody’s going to get this virus and die.”




The Challenges of Courthouse Operations in a Pandemic

When chief judges take questions from their local bars about reopening procedures, one question that frequently comes up is: What happens if a juror tests positive in the midst of a trial?

The risk, however, is not just limited to jurors, as we saw last week in the US District Court for the Southern District of Ohio, in Cincinnati. On Thursday, that court issued General Order 20-32. The order reported that a deputy US marshal (DUSM) stationed at the Potter Stewart Courthouse, who last reported for duty on October 30, became symptomatic on November 1 and was diagnosed as positive on November 5. The order continued:

It is understood that while the DUSM may have visited multiple public areas in Potter Stewart during the week of October 26, 2020, through October 30, 2020, including all floors, the CSO station, the guard shack and the snack bar, those areas have since been cleared and disinfected. The DUSM, however, while infected by asymptomatic, came into contact with Court employees throughout Potter Stewart, particularly the court security officers (CSOs).

As a consequence, “in order to ensure the health and safety of the judicial officers, Court and agency staff, and to prevent possible exposure to the COVID-19 virus, and the spread of such disease,” the entire courthouse was ordered closed until November 16, by order of Chief Judge Algenon Marbley. All employees known to have had contact with the DUSM, including CSOs, were ordered to self-quarantine and “get tested for COVID-19.” All criminal, civil and grand jury sessions were canceled.

Obviously, an event like this in the middle of an ongoing jury trial would be disruptive, to say the least. Now add in the uncertainty factor: Today Judge Marbley issued General Order 20-33, which rescinds the prior order entirely. The courthouse is reopened. Canceled hearings are apparently uncanceled. And it seems the self-quarantine and testing directions are rescinded as well.




The District of Colorado Suspends Jury Trials

Last week, Chief Judge Philip Brimer of the US District Court for the District of Colorado continued all criminal and civil jury trials scheduled to commence before January 8, 2021. Judge Brimer also suspended all grand jury proceedings and canceled all public gatherings in the courthouse. The order reported that “key indicators from the Colorado Department of Public Health & Environment, including positivity rates, the number of hospitalizations and cumulative incidences per 100,000 people, demonstrate a significant increase in the rate of COVID-19 infections in many parts of the District of Colorado.”




A Swing…and a Miss…in Connecticut Courts

The US District Court for the District of Connecticut was poised to hold its first pandemic jury trial later this month. However, yesterday Judge Vanessa Barrett postponed the trial because, according to the Hartford Courant, “the court could not find enough jurors willing to sit in court and hear the evidence.” This was “a setback for the federal district court in Connecticut, where the judges have worked for months with virologists, air circulation experts, information technology consultants and others to configure a courtroom that could keep participants in a jury trial safe.” Jury questionnaires were sent to 150 prospective jurors. Seventy-two did not respond at all—an unusually high percentage. More than 50 were then excused for health reasons. Ultimately, the pool included only 19 prospective jurors, which is not enough to seat a 12-person jury. The defense declined to waive peremptory challenges and also declined a bench trial.

All remaining 2020 federal trials in Connecticut’s courthouses have been delayed. All state court trials in Connecticut are also off calendar.




Federal Trials in Pittsburgh Postponed until February 2021

Last week, the US District Court for the Western District of Pennsylvania entered an order continuing all civil and criminal jury trials in this district until February 8, 2021.

Since March 12, 2020, this court has entered orders continuing trials until a further date, and a few days before each order was set to expire, it has been renewed. These orders have each recounted several pages of public health circumstances before finding that the circumstances demand delaying trial proceedings. This latest order, however, noted that in the past several weeks there have been “material, persistent and significant increased numerical occurrences and positivity rates of COVID-19 infections and accompanying hospitalizations in the counties which make up this judicial District.”

Grand juries are allowed to continue meeting, naturalizations ceremonies can be scheduled where necessary, and court operations can continue through in-person and remote proceedings. Notably, the order also provides for criminal defendants who want relief from the ordered delay to file a motion under a miscellaneous proceeding. No motions have been filed, to date, seeking a trial.




 McDermott’s litigation team monitors US courts as they reopen amid the ongoing COVID-19 public health crisis.

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