Attorneys concerned about court reopening plans
Health and safety of participants, mask-wearing raise issues for legal professionals
Many Connecticut defense attorneys, impatiently waiting for jury trials to resume after more than six months without trials because of the coronavirus pandemic, are concerned about how prospective jurors can be convinced to walk into courthouses and whether the jury pool will be diverse.
The attorneys also see a looming problem with jurors and witnesses possibly wanting to wear masks during trials. The presiding judges would make such decisions.
“I won’t participate in a trial where jurors are wearing masks and I can’t gauge their reactions to the testimony,” said defense attorney Richard Silverstein, who has tried hundreds of cases.
“I can’t try a case where witnesses are wearing masks,” Silverstein added.
He said he needs to see their faces in order to judge their credibility.
In Stamford, criminal defense attorney Lindy Urso, who filed suit against Gov. Ned Lamont in April after the governor issued an order making maskwearing mandatory around the state, said he couldn’t be unhappier about trying a case with jurors or witnesses wearing masks in the courtroom.
Coincidentally, Urso has been told that one of his clients, Johnel Telemin, who is accused of shooting and killing mother of five Maxine Gooden in Stamford’s Leone Park in 2015, may be the first case to go to trial in the Stamford courthouse since the building was closed due to the coronavirus pandemic. The trial could happen as early as November.
“I am 100 percent opposed to conducting a trial where the witnesses’ and jurors’ faces are covered, because jury selection is very much an art and gutbased process and a lot of the information you get is gleaned from the facial expressions of jurors made in response to our questions,” Urso said. “I ask questions and look for reactions.”
Stamford Lead Public Defender Barry Butler sees the situation differently.
“I think we can discern a lot about people by what they say. The content of answers is what is important,” Butler said.
The defender does agree there is value in reading expressions.
“What I told my ethics class (at Fairfield University) the other day, is occasionally when they shut down their video during a Zoom meeting and only their names pop up, it is difficult for me to gauge their responses by looking at the countenances of their faces. Having them live in class it is easier to see their responses, the eyebrows raised, the curiousness on their faces.”
Judicial timetable
Richard A. Robinson, chief justice of the state of Connecticut, issued a statement Sept. 10 titled, “It’s time for jury trials to resume.” He said the Connecticut judicial branch “plans to resume trials in November and will summon potential jurors for these trials beginning later this month,” meaning by late September.
But some attorneys say this timetable isn’t feasible.
Attorney Arthur Laske III, whose office is in Fairfield, noted the logistical challenges posed by COVID-19 protocols, starting with the initial gathering of prospective jurors called to the courthouses.
“How are you going to put 300 people in a room?” Laske asked.
“What Mr. Robinson said is not very practical,” he said. “Realistically, I think the people in the trenches are expecting that trials won’t happen until sometime next year. I’d love to be trying cases tomorrow. But as for a November date for resumption of trials, I think there are real questions as to whether that will happen.”
“I’ve told my clients they’ll be lucky to get their trials going in early to mid-summer of next year,” Laske said.
However, Judge James W. Abrams, the chief administrative judge for civil matters, based in New Haven Superior Court and cochairman of the statewide Jury Restoration Working Group, maintains it’s quite possible trials could begin in late November. But he added this timetable could be achieved only if the state’s COVID-19 testing positivity rate remains around one percent.
“That’s not a safe assumption,” Abrams said of the positivity rate. But he said if this rate does hold steady, “Then I am confident we’ll see jury verdicts in 2020. I think we’ll be able to do it in at least one courthouse in each judicial district.”
Abrams cited the new safety protocols outlined in Robinson’s announcement.
“Social distancing guidelines will prevent us from using the traditional jury box,” Robinson said. “We are developing alternate arrangements to hear evidence, against the backdrop of every courthouse being different. Nor will jurors congregate in the deliberation room to reach a verdict; a different arrangement will be used.”
Abrams explained: “Jurors will be spread throughout the courtroom” rather than sitting together in the jury box to hear testimony. He said that when jurors deliberate on a verdict, they will be in the courtroom rather than going into a deliberations room.
Danbury State’s Attorney Stephen Sedensky agreed that “it is important that a witness’ face be seen by the jury,” but he also said he thinks “it is feasible and necessary” that jury trials start sometime.
“I think it is important to get the process started, knowing there will be a learning curve as we go and adapting as we learn,” he said.
Further, he said, “It remains to be seen at this point what the specific procedure will be for witnesses. I hope appropriate protocols that allow for a witness’ face to be seen without a mask will be in place.”
Robinson also announced in his statement that a new COVID-19 exception form is being included with summonses for jury duty.
“Jurors should not worry if they have comorbidities, are in a high-risk group or have preexisting conditions,” Robinson said. “Obviously, we don’t want to put jurors in a perilous position or create health hazards for others.”
The COVID-19 exception form begins by telling the prospective juror: “Jury service is one of the most important civic duties you can perform. Your participation as a juror is a vital part of our justice system and we thank you for your service.”
The letter for the exception form informs the prospective juror that the state is “committed to providing a healthy and safe environment for all who enter the courthouse. We are taking every available precaution to keep you safe during jury service. Social distancing and face covering guidelines will be strictly followed and enforced. Disinfectant sanitizer will be readily available and regular cleaning of high touch point surfaces and areas will be undertaken.”
The form directs the prospective juror, “if you still believe you are unable to serve as a juror due to a COVID-19 related reason,” to check one of several boxes. These include: “I am a caregiver providing support for someone needing to take extra precautions against contracting COVID-19,” or “I am a medical professional caring for COVID-19 patients” or “I am not able to wear a mask.”
The uppermost box is for those “in a group categorized by the Centers for Disease Control and Prevention as needing to take extra precautions against contracting COVID-19.” Those who check that box are directed to log onto the CDC website. The CDC’s list of preexisting conditions carrying increased risk of severe illness from COVID-19 includes a variety of diseases.
Concern for risk
Several items on that list have drawn the attention and concern of attorneys in the Office of Public Defenders in the New Haven Judicial District. New Haven Public Defender Beth A. Merkin, who oversees that office, noted sickle cell disease, type 2 diabetes and asthma are included as underlying medical conditions posing an increased risk of severe illness from COVID-19.
“We all know those preexisting conditions affect people of color at a much higher rate,” Merkin said. “Our concern is that people of color will be more likely to opt out of jury service. How will that affect the diversity of our jury pool?”
Merkin said people of all racial groups are probably anxious about reporting for jury duty. “Many people are very, very worried about whatever quarantine decisions they’ve made and they won’t want to even set foot in this courthouse. How are we going to get jurors to come into this building and feel safe? How can they listen to testimony without being distracted by fears of COVID?”
Butler said everyone should have the right to wear a mask if they want to, but he worries that COVID will reduce the diversity of jurors. He pointed to court rules allowing people to opt out of duty because of their higher risk of infection or death from the virus.
But, he said, the state has to try to hold trials.
“It’s part of getting back to normal. People have a right to a jury trial and we can’t just have people wait and wait,” he said. “We might as well try to get it started and see how it works. If there are huge problems we will make adjustments. If you don’t have trials, you won’t know what works and what doesn’t.”
Sedensky, however, said he also has seen the juror form and thinks “the number of people who may have concerns will not be enough to affect the composition of the potential jury pool.
“Those with concerns will be spread out across many backgrounds so our basic jury pool composition will remain relatively the same,” Sedensky said. “Once we get started, the actual realities of the situation may be different. My experience has been that the citizens of the Danbury area realize the importance of jury duty. At the same time, we want our jurors to be safe and feel safe in carrying out their service.”
Abrams, whose Jury Restoration Working Group is giving suggestions about how to proceed with new trials to Patrick Carroll III, the state’s chief court administrator, also said: “What’s paramount is the safety of the jurors we bring in, and the safety of the other participants.”
Moreover, Robinson said in his statement: “Jurors will understandably expect that safeguards and precautions be in place from the time they step into the courthouse to the time they leave. Frankly, I would require no less, knowing that my own family members are often called for and report to do jury duty.”
Robinson said the safety precautions might include holding trials remotely via computer feeds. He noted, “The gold standard for all jury trials — including the individual questioning of jurors by the attorneys in front of a judge — is to have the proceedings done in person. However, we will also leave open the possibility of virtual jury trials, given the COVID-19 environment. As we all know, flexibility during a pandemic is paramount.”
Abrams said virtual trials “are not off the table. But we’re focused on inperson. The watchword is flexibility.”
The federal court system in Connecticut is ahead of the state courts in resuming trials. During the week of Sept. 21, U.S. District Judge Victor Bolden presided over the first trial, a civil rather than a criminal case, in Bridgeport.
“My understanding is that it went very well,” said Stefan Underhill, the chief judge for the federal district courts in Connecticut.
“The hardest part was jury selection,” Underhill said. “Usually (pre-COVID) we bring in a large number of people, about 40 to 50, and choose them in the courtroom. But Judge Bolden whittled it down remotely. He Zoom-screened the initial 64 people about their health conditions and other issues. Then we brought a manageable number (19) to the courthouse.” Underhill said eight jurors were seated for the trial.
“They wore masks at all times,” Underhill said. “Everybody did, including the lawyers and the judge. The only exception was that the judge permitted the witnesses to remove their masks while testifying. But they wore clear face shields and they were behind Plexiglas. The witnesses testified from the jury box; the jurors and lawyers were spread out in the courtroom. Nobody was near anybody else. An adjacent courtroom was used for deliberations.”
Sedensky, the Danbury state’s attorney, said he had been worried about potential jury pools until several weeks ago.
“But then I read about the recent jury trial in federal court in which most of the jurors were willing to sit,” he said. “Granted, the federal court space is bigger that Danbury’s, but if the court, via its protocol, can make the prospective jurors feel safe, I think we will keep a good percentage.”
Masks on
Middletown attorney Russ Palmer said he agrees that “with masks on, people won’t be able to see their faces to determine who is credible and who isn’t.”
At Superior Court in Middletown, proceedings can be seen on a television monitor with the judge and court reporter participating virtually. The defendant, defense attorney and marshal are the only ones in the courtroom, all socially distanced, he said.
In the New London and Norwalk courthouses, everyone is in the same room, but wearing masks and at least 6 feet apart, Palmer said. He is eager to see how jury deliberations and the sharing of exhibits will be conducted once cases resume.
When told about Silverstein’s strong objection to jurors being masked, Underhill said: “I know lawyers like to gauge their reactions. But I don’t think it’s essential for presenting the evidence. It’s more important for jurors to be able to assess the credibility of witnesses through their facial expressions.”
Merkin said she wouldn’t refuse to participate if jurors kept their masks on “but I’d strongly prefer that they not wear masks.” She noted they will be protected by the Plexiglas separating them from the witnesses.
“I’d hope I wouldn’t have to cross-examine a witness who is wearing a mask,” she said. “But we have to balance our clients’ right to have a trial versus some imperfections. If your client wants some movement on his or her case, you’re in a difficult dilemma.”
Indeed, Silverstein said there are hundreds of defendants awaiting trials on criminal charges. “I’ve been put on hold for eight months. We’re digging ourselves a hole that I don’t think we’ll get out of for five years because of the backlog.”
When he goes to court, Urso, the Stamford attorney, won’t wear masks made for the purpose, and in protest wears a T-shirt that has been roughly cut a few inches from the neck opening that mostly covers his nose and mouth.
Asked whether he thinks it’s feasible to begin trials as early as late November, Urso said he did not.
“Given the level of hysteria created by the actions of the state, no. I can’t see it,” he said.
Defense lawyers also are worried about the delays in civil cases. Laske said, “Insurance companies know that unless you can bring a case to trial, there’s no threat to them. For 30 years I’ve been telling them: “If you don’t like my demands, I’ll go to a jury to get it.’ Now that’s a hollow threat. Insurance companies know there’s no risk. The jury system is the great equalizer. Without it, there’s no leverage on our part and justice suffers.”
“Jury service is essential to the courts,” Underhill said. “It’s almost never convenient but it’s guaranteed in the Constitution.”
Robinson called jury trials “the backbone of our system of justice.” He added, “Pandemic or not, we need civic-minded citizens to step forward and perform the critical public duty of serving on a jury — even more so during these difficult times.”