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The Jury Returns to D. Mass.

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.

What Reopening? Dockets on Hold in Multiple US Jurisdictions

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.

Struggles in Reopening Federal and State Courts across the Country

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.

How Courts Keep the Pressure On

Judges and litigants are attempting to call each other’s bluff. The pattern often plays out as follows: Court sets trial; litigants move to continue, citing COVID-19; judges deny continuance; matter resolves. We saw this play out last week in a criminal matter in the US District Court for the District of Massachusetts. With trial set for October 13, the parties jointly moved on September 22 to continue the jury trial. The US attorney and the federal public defender service both told the court that they needed four more weeks due to pandemic restrictions. On September 23, Judge William Young denied the motion without comment. Six days later, the defendant pled guilty.

Meanwhile, in Judge Allison Burrough’s session, a criminal jury trial that was set for September 15, and then today, is now set for October 13.

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