On Friday, the US District Court for the Central District of Illinois (which includes Peoria, Springfield and Urbana) suspended all civil and criminal jury trials, with trials to be rescheduled by the trial judge to a date after January 25, 2021. The US District Court for the District of North Dakota, meanwhile, rescheduled all the duty trials set for last week to November 30, but it seems doubtful that date will stick. And in the US District Court for the Northern District of Illinois (Chicago), criminal trials were suspended immediately, with civil trials suspended as of next Monday. All public gatherings at the Chicago courthouse will be suspended as well.
On September 29, with COVID-19 cases on the rise, the US District Court for the Southern District of Ohio suspended all in-court civil proceedings (including jury trials). Late Friday afternoon, the court continued the suspension at least through November.
The US District Court for the District of Massachusetts held a Zoom update yesterday for the members of the D. Mass. bar. The chief judge and three other district judges reported about the success of four single-defendant criminal trials that have been held since trials began in this district.
While the judges felt the trials had been successful, they were clear that the protocols in place to prevent the spread of COVID-19 make jury trials much more difficult than pre-pandemic. One judge shared a story about a juror standing up on the second day of trial and announcing she had to vomit (which she then did). But the show went on: The other jurors showed up the next morning, the sick juror was excused but tested negative for COVID-19 and the jurors ultimately deliberated over the course of three days.
The judges urged lawyers involved in civil cases to advise their clients that they should consider bench trials or Zoom trials, or wait until conditions change to have trials. The court is working together to schedule cases for trial because only a certain number of courtrooms are available that are large enough for trials with social distancing. Judge Patti B. Saris reported that it took a day and a half to select the jury due to the number of restrictions. Comparing that with pre-pandemic trials where jury selection usually took between two and three hours, the takeaway is that trials will go much slower while observing these protocols.
In the US District Court for the Southern District of New York, civil jury trials are on the calendar for the next few weeks. Whether they happen is anyone’s guess. Back in April, Judge Jed S. Rakoff set a jury trial in a multi-defendant Racketeer Influenced and Corrupt Organizations (RICO) case to commence November 9. The case is still on the calendar, with motions in limine being briefed now. Meanwhile, Judge Denise L. Cote has an employment discrimination trial set to begin on November 9, with a final pretrial conference today, by telephone. And Judge Gregory H. Woods set a November 16 trial date back in August. The parties sought to continue the trial, and Judge Woods declined. Then, a week later, Judge Woods sua sponte put everything on hold. We will watch these cases with interest.
The US District Court for the District of Massachusetts has sent out notices seeking information to reschedule federal civil jury trials for 2021. The rest of 2020 is off the table. Meanwhile, many courts that did restart their jury trial dockets are being forced to rethink that. In Tennessee, Memphis courts have put reopening plans on hold—including canceling the scheduled trial for the accused killer of NBA star Lorenzen Wright, which was scheduled to begin yesterday. Cincinnati courts canceled their jury trials, effective yesterday. In Idaho, only one county is open for jury trials. In Michigan, Livingston County postponed jury trials until further notice, as did all neighboring counties.
On the other side of the coin, however, a jury trial is underway in a homicide case in Lehigh County, Pennsylvania (Allentown and Easton). And rural counties in North Carolina are launching their first trials this week.
Masked trials have been a problem, because lawyers want to see jurors, and they want jurors to see speakers. Law.com reports that the US District Court for the Middle District of Georgia “got around that question this week by securing clear, plastic masks for witnesses to wear while testifying.” Here’s the mask, called “The ClearMask”:
Image via The ClearMask
This was one accommodation of many for a criminal defendant who refused to waive his rights under the Speedy Trial Act. There is otherwise a moratorium on jury trials in this district. In the US District Court for the Northern District of Georgia, which includes Atlanta, jury trials are on hold until at least January.
Jury trials were scheduled to resume in state court in Massachusetts on October 23. Amid a rise in confirmed cases of COVID-19 around the state, the earliest potential start date has been pushed back by the Supreme Judicial Court until November 9. Massachusetts ranks third in the nation in per capita deaths but has held its numbers down during the summer and fall.
Meanwhile, in Youngtown, Ohio, an attempt to hold a jury trial in a vehicular homicide case went off the road. Forty people were summoned for jury duty. One tested positive for COVID-19. Another had symptoms and was transported away for further testing. An additional seven members were already awaiting test results, which is enough to avoid jury service. With a quarter of the jury pool eliminated, a jury could not be selected. This would have been the fifth jury trial in Mahoning County since the courthouse reopened in July, but Ohio cases are heading in the wrong direction.
More on last week’s remarkable opinion by former Chief Judge Cormac Carney of the US District Court for the Central District of California. So far, this story seems to have merited coverage by the Los Angeles Times and this blog, but nowhere else.
Judge Carney’s opinion is 20 pages, with exhibits documenting his facts. He begins with the old trial lawyer’s favorite Thomas Jefferson quote: “I consider the trial by jury as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.” Then, after some history, he writes:
Sadly, the United States District Court for the Central District of California has denied Defendant Jeffery Olsen his Sixth Amendment right to a public and speedy trial on the criminal charges that were filed against him in this case. Specifically, the Chief Judge for the Central District refused to summon the jurors necessary to conduct Mr. Olsen’s trial that was scheduled for October 13th of this year, believing it was too unsafe to conduct the trial during the coronavirus pandemic even if significant safety precautions were in place. Most troubling, the Chief Judge refused to summon jurors for Mr. Olsen’s trial even though grand juries have been convening for months in the same federal courthouse in Orange County where his trial would take place and state courts just across the street from that federal courthouse are conducting criminal jury trials. Clearly, conducting a jury trial during this coronavirus pandemic is possible. Yet the Central District prevented the Court from even trying to do so for Mr. Olsen. Because the Central District denied Mr. Olsen a public and speedy trial under the Sixth Amendment, this Court now must dismiss the indictment against him.
Discussing the narrow nature of the Speedy Trial Act’s “ends of justice” exception, Judge Carney concluded that it is “under the current circumstances, it is simply not a physical or logistical impossibility to conduct a jury trial.” He continues:
Although some aspects of the practice of law may be less convenient during this time when many are practicing social distancing, no one contends that it is not possible to perform necessary trial preparations or to attend the trial. Nor does anyone argue that there is insufficient courthouse staff available to facilitate a trial.
Indeed, if one had any doubt about the possibility of conducting a jury trial during the pandemic, one need look no further than the very courthouse in which Mr. Olsen seeks to have his jury trial in Orange County. There, between June 24 and September 30, 2020, a grand jury convened and returned 41 indictments. That means that the grand jury, which has at least 16 people on it, gathered in person in the Orange County federal courthouse numerous times. While they were gathered, they heard testimony from witnesses and deliberated together. If a grand jury can perform these functions in the exact courthouse where Mr. Olsen seeks to be tried, the Court surely can hold a jury trial for Mr. Olsen in that courthouse.
Even more compelling is the fact that the state court across the street from the Orange County federal courthouse resumed jury trials with appropriate precautionary measures nearly four months ago. The Orange County Superior Court did not hold any criminal jury trials in April or May of this year because of the pandemic. However, from June to September, it held 82 criminal jury trials and 4 civil jury trials. Notably, in June, July, and September, over 60% of potential Orange County jurors reported to fulfill their civic duty. Obviously, the state court has accomplished this by taking numerous careful measures to ensure safety. It accommodates social distancing by staggering times for juror reporting, trial start, breaks, and concluding for the day, seating jurors during trial in both the jury box and the audience area, marking audience seats, and using dark courtrooms as deliberation rooms. It also regularly disinfects the jury assembly room and restrooms, provides facial coverings, uses plexiglass shields in courtrooms, and requires trial participants to use gloves to handle exhibits. Of course, similar safety precautions could have been in place for Mr. Olsen’s trial, had the Central District allowed this Court to hold one. …
Quite frankly, the Court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse. The Internal Revenue Service, the Social Security Administration, and other federal agencies in Orange County are open and their employees are showing up for work. Police, firefighters, and other first responders in Orange County are all showing up for work. Hospitals and medical offices in Orange County are open to patients and the medical professionals are showing up for work. Grocery stores, hardware stores, and all essential businesses in Orange County are open and their employees are showing up for work. State courts in Orange County are open and holding jury trials. Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining. Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors, and pet groomers in Orange County are open, even indoors, with protective modifications. Children in Orange County are returning to indoor classes at schools, with modifications. Even movie theaters, aquariums, yoga studios, and gyms in Orange County are open indoors with reduced capacity. Yet the federal courthouse in Orange County somehow remains closed for jury trials. The Central District’s refusal to resume jury trials in Orange County is indefensible.
Judge Carney then discusses the decisions of Chief Judge Phillip Gutierrez, who sits in Los Angeles:
Most important in this case are the facts and circumstances leading to dismissal. The Chief Judge of the Central District—supported by a majority vote of judges in the district—decided not to summon jurors for Mr. Olsen’s trial. He made that decision knowing that holding a jury trial in Orange County was possible. He made that decision knowing that a grand jury was convening in the Orange County federal courthouse. He made that decision knowing that Orange County state courts were open for jury trials. And he made that decision knowing that Orange County nonessential businesses were open with appropriate modifications for safety. His decision was knowingly and willfully made. The primary factor driving the Chief Judge’s decision was the risk that people might get sick from the coronavirus. But his decision was made with little or no regard for Mr. Olsen’s constitutional right to a public and speedy trial. Indeed, in his order denying the Court’s request to summon jurors for Mr. Olsen’s trial, the Chief Judge made no mention of the Constitution at all.
And Judge Carney, in dismissing the indictment with prejudice, wrote that he had chosen this sanction, in part, to deter the chief judge:
Finally, barring reprosecution in this case by dismissing with prejudice is the only sanction with enough teeth to create any hope of deterring additional delay in the resumption of jury trials and avoiding further dismissals of indictments for violations of defendants’ constitutional rights to a public and speedy trial.
Judge Carney closes with another Jefferson quote: “The wisdom of our ages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.”
Meanwhile, an interesting story in the US District Court for the Central District of California. The Los Angeles Times reports on the dismissal of an indictment against an Orange County physician in a drug distribution case. The defendant had been indicted in 2017. He wanted his trial. But the chief judge, Philip Gutierrez, refused to lift the prohibition on jury trials. Therefore the trial judge, Cormac Comey, dismissed the case with prejudice. And he wrote with candor:
“Quite frankly, the court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse. Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining…Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors and pet groomers in Orange County are open, even indoors, with protective modifications. Even movie theaters, aquariums, yoga studios and gyms in Orange County are open indoors with reduced capacity. Yet the federal courthouse in Orange County somehow remains closed for jury trials. The Central District’s refusal to resume jury trials in Orange County is indefensible.”
Public criticisms by a federal judge of a chief judge’s administration are rare.
In the US District Court for the District of Delaware, Judge Richard G. Andrews reset a patent infringement trial for May 2021. The case was filed in 2015. The parties completed all their pre-trial activities during the pandemic, filing a final proposed pretrial order on June 30, 2020, for a trial that was set for August 18, where the court planned to present most of the witness testimony by remote video. The defendant objected, relying on Federal Rules of Civil Procedure (FRCP) 43 and arguing: “Many courts acknowledge that remote testimony impairs a fact finder’s ability to judge credibly.” We expect to see the cited cases—Perotti v. Quinones, 790 F.3d 712, 725-26 (7th Cir. 2015); United States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001)—frequently in the months ahead. In response, the plaintiff requested a November 2020 trial. But the trial will not happen before May 2021.