‘WE FEEL THE DUTY TO GET IT RIGHT’
How Anne Arundel courts are preparing for return of jury trials
CORONAVIRUS IN MARYLAND
“It’s not that the court hasn’t tried to consult with scientists and other states to try and make this happen. It’s just — can it happen fairly?”
Defense attorney Jennifer Alexander
Masked maintenance staff members prepare to shampoo the carpet of Anne Arundel County Circuit Court’s law library, a large room gutted of aging books and fraying stacks of legal documents to fit more than 100 prospective jurors on Monday.
Placing chairs 6 feet apart in the once cluttered library is one of the last steps taken by courthouse staff in a monthslong epic of planning, renovating and finger crossing to safely restart the wheels of justice. Long-delayed criminal and civil jury trials will resume across Maryland Monday, a process contingent on residents showing up for jury duty.
Administrative judges across the state say reporting to court is as safe as possible, given new pandemic renovations centered on social distancing.
“We feel the duty to get it right,” said Anne Arundel Circuit Court Administrative Judge Laura Ripken, who sat in every seat in her courtroom to ensure a relocated witness stand is visible from all views.
“We are the third branch of government. We are essential. We need to function. We need to give people their opportunity to be in court,” Ripken said.
Like all institutions that rely on in-person interaction, the pandemic halted the country’s justice system. Courts were closed for weeks in Anne Arundel County, growing a backlog in cases to immeasurable heights. Some defendants have spent months or years behind bars waiting to advocate their innocence in court.
Judges and attorneys muscled through a pileup of conferences and hearings by phone or video during the shutdown and have since resumed some hearings in person. But jury trials are intricate and require a large group of people to be in the same room, often for hours.
Circuit courts across the state have floated ideas to hold jury trials in buildings with more space than cramped, older courthouses allow —
like school auditoriums or the Cow Palace on state fairgrounds.
Renovations
To balance a defendant’s right to a speedy and fair trial with keeping the community safe, Ripken oversaw four courtrooms revamped with plexiglass walls positioned between 12 seats in the jury box. Tables for the prosecution and defense are split down the middle by plexiglass shields, and the witness stands are repositioned in front of the judge’s bench.
Anyone who enters the courthouse is read a list of COVID-19 related questions and has their temperature taken. Inside, benches are dotted with green checkmarks to guide an appropriate distance. Masks are always required.
Hand sanitizer is placed outside courtrooms that are now limited entry. The largest courtroom that could pack 100 people now is restricted to 40. Overflow rooms for family observers are available upon request.
The judiciary introduced a new technology to replace bench conferences, where parties and a judge huddle together and speak in hushed tones, with a headset that broadcasts the conversation to individuals wearing an earpiece. Afterward, headsets are disinfected in ultraviolet light.
Attorneys applauded the judiciary for finding solutions to resume trials but expressed worry over how the need for social distancing will affect communicating with their clients. Lawyers typically whisper with clients or pass notes during trials. Now, separated by glass and distance, quick questions before cross-examination could be challenging. Connecting with a jury could be even harder.
“We’re trying to figure out how to best present an opening argument to a jury spread out across a courtroom. Howdo you make eye contact with them? How do you pull the min to listen to you when you’ve got to look all over the place for them?” said Anne Arundel Public Defender Bill Davis.
Prosecutors and defense attorneys can no longer approach the jury box. Instead, attorneys will present evidence on a projector. They can no longer pop up froma table and must either remain seated, approach a podium or ask a judge to approach the box.
“Our prosecutors will likely face some challenging times ahead in advocating to jurors while remaining stationary at the trial tables and while wearing masks,” State’s Attorney Anne Colt Leitess said in a statement.
Jury selection
Jury selection can be pivotal to a trial’s outcome.
Courts need people, sometimes as many as a hundred, to respond to a summons. Since coronavirus continues to rage across the country, and parents are thrust into educating their children online at home, courts are casting a wide net with larger summonses.
Juries also need to be representative of the community. Minority groups are disproportionately sickened by a coronavirus, causing concern that residents will decide their health risks outweigh their civic duty.
“I’m confident the system will try to work out something that it believes is balanced, but I don’t see how you achieve a balance with something that has been so imbalanced in terms of its effect on people of color and those that are seniors and those with underlying health conditions,” said public defender Daryl Jones.
If anyone were to get infected with COVID-19 during a trial, it would be addressed on a case-by-case basis, Terri Charles, Maryland Judiciary spokesperson, said in an email.
Prospective jurors will be asked about health concerns during a process called voir dire, where a judge calls jurors to a table in a courtroom for questions. Inperson discussion allowed attorneys to observe a juror’s body language while determining if that person can be fair and impartial.
Starting Monday, attorneys could be physically separated from the jury pool in another courtroom, making jury selection less intimate and harder to judge, they say.
In some cases, a designated judge will interview jurors in the renovated law library while large fans create natural white noise to maintain privacy, rather than typical synthetic white noise. Depending on the circumstance, a lawyer could be in a separate room than the jury pool in early stages of voir dire, joined in the process by Zoom video cameras placed at the judge’s desk. The two judges conducting jury selection will then send the final jury out to another judge presiding over the specific case.
“That’s a major change,” said defense attorney Peter O’Neill. “Inmy 35 years, I’ve never had another judge help select a jury and then be assigned to someone else to actually try the case.”
Big unknowns
Criminal and civil jury trials are expected to take much longer in the pandemic era. But other coronavirus modifications are making other court matters more efficient.
Video and phone hearings for non-trial matters are now commonplace. Attorneys no longer need to shuffle back and forth from the judge’s bench for conferences. Legal paperwork is now dropped in a box in front of the courthouse.
The effect of other health protocols, like mask requirements, remains to be seen.
“One of the big unknowns here is how many people are going to appear?” O’Neill said of jury duty.
Ripken said the judiciary would be flexible as jury trials head into uncharted waters. Video testimony for out-of-state or elderly expert witnesses is possible but will depend on the case. Some attorneys object to video testimony, as defendants have a right to confront a witness in person.
Witnesses who testify will be given a disposable face shield so jurors can see their face to judge credibility.
But how will a defense attorney humanize a mask-covered client? Whatif a witness is more likely to lie in video testimony? If a juror gets COVID-19, could it result in a mistrial?
“Those issues will be raised upon appeal,” said defense attorney Jennifer Alexander.
It’s critical for lawyers to have a good record of the trials held during the pandemic, Alexander said, since appellate courts will face novel issues related to coronavirus in the coming years.
“It’s not that the court hasn’t tried to consult with scientists and other states to try and make this happen,” Alexander said. “It’s just— can it happen fairly?”