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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.”

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.

All Eyes on Georgia (Courts)

We’re talking about jury trials, of course. (Were you thinking of something else this morning?) Even as coronavirus cases spike, with 2,755 cases and 43 deaths yesterday, with positivity rates around 20%, Georgia is restarting state court jury trials. Some courts can’t accommodate social distancing, so trials will be held in civic centers, sports arenas, school gymnasiums or lodges associated with groups such as the Veterans of Foreign Wars, according to Criminal trials will take priority. In those counties that have announced specific procedures for conducting trials, if a juror tests positive in the middle of a trial, the show will go on.

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.

The Same Story: Jury Trials Suspended Again in Florida Circuit Court

As COVID-19 cases spike in most states, we’re seeing a familiar story, exemplified by Escambia County in Florida. WEAR-TV reports:

“Jury trials have come to a halt in the [First Judicial Circuit Court of Florida] in Escambia County after a spike in COVID-19 cases. Jury trials had only restarted just a few weeks ago. However, the court was able to complete only five trials, as Chief Judge John Miller is ordering a suspension of trials for the next two weeks.”

These stories tend to focus on state courts, because most federal courts never reopened at all.

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.

“Knowingly and Willfully”: Judges Clash over Reopening Procedures in Orange County

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.”

Trials Underway in San Francisco and Cleveland Courts

Most of the federal trials that have actually been held during the pandemic have been in rural locales. But yesterday, Judge William Orrick in San Francisco launched an in-person criminal jury trial in a mail-bombing case. Jury selection began with a SurveyMonkey questionnaire. The courtroom is closed to the public but the audio is being broadcast over Zoom to all interested observers.

Meanwhile, Cleveland saw its first pandemic jury trial end Friday after five days with the acquittal of an accused murderer. The state court trial was held in a large conference room in the county-owned Global Center for Health Innovation. Everyone was masked except for testifying witnesses. Jurors sat six feet apart behind a plexiglass shield and with shields between them.

New Jersey Appeals Court Stops First Pandemic Jury Trial

Earlier this week we told you that a New Jersey court was conducting voir dire partially by Zoom. The defendant objected that the process is unconstitutional because it yields a jury pool that is not a cross-section of the community. Now the court of appeals has halted the trial while it considers the issue. This result may be cited in criminal and civil jury trials nationwide, in both federal and state court. The issue of forming a representative jury pool in the midst of the pandemic has been worrying the judiciary for many months. Notably, the New Jersey Law Journal article on this case bears the headline “Appeals Court Halts State’s 1st Post-COVID-19 Jury Trial After Jury Selection Challenged.” But of course, we are not post-COVID-19. We are mid-COVID-19.


New Jersey’s Zoom Jury Selection Process Is Challenged

New Jersey’s first jury trial of the pandemic is underway in Bergen County. It’s a criminal trial, with the defendant accused of trying to set fire to his ex-wife’s home. Voir dire began last week, beginning with Zoom-based voir dire. Now the defendant has moved to suspend the trial until alleged constitutional deficiencies can be corrected or until “normal” jury selection can resume. The defendant raises issues that the judiciary has been grappling with since the pandemic began, writing:

Bergen County’s implementation of electronic notifications, electronic jury questionnaire submissions, and Zoom-based voir dire has limited an entire socioeconomic group’s participation in jury service. Those who cannot afford a computer are eliminated from jury service because they cannot submit questionnaires. Others who cannot afford internet service are prevented from appearing at the initial stages of jury selection by Zoom. Furthermore, those who lost their jobs during the pandemic and never had to learn how to participate in a Zoom conference are at a technological disadvantage.


The unemployed and elder portions of the prospective jury pool are similarly impacted by the County’s shift to use of electronic procedures…The jury pool cannot represent a true ‘cross-section’ of the Bergen County community if these demographic groups are excluded.’’

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