Connecticut Hoping To Resume Jury Trials

            I was startled during my annual physical this week when I asked my family physician how much longer he expected the pandemic to require restricted activity. “At least a year,” he said. When I asked him what he thought of my traveling by air in the near term, his answer was even more succinct: “Don’t.”

            When I told my doctor that the federal courts in Bridgeport planned to hold a jury trial next week, and that the state courts were planning to do likewise in November, he shook his head slowly, and appeared to mutter to himself.

            His advice to me was clear. Lay low for another year.

            I didn’t want to hear that.

            And then I saw today’s CDC announcement: Asymptomatic persons who come in contact with an infected person should get tested and quarantine for 14 days. This reverses an announcement last month saying testing might not be necessary for folks without symptoms.

            In the face of this, it is not at all clear just who will turn up in response to a jury summons. I’d certainly stay home.

            On Monday, potential jurors are expected to appear for questioning in Bridgeport federal court here in Connecticut. The case is Amica versus Coan, Trustee, pending before United States District Court Judge Victor Bolden.

            I know one of the lawyers in the case, Jim Nugent, and have spent several hours with him discussing the trial, and how to conduct it given the bizarre new regime imposed by Covid-19. As near as I can tell, the proceedings will take place as follows:

            Potential jurors are to report on Monday. They will be screened for conflicts via Zoom. It is unclear whether folks can call in from home, or whether they will be required to come to the courthouse only to speak to a judge via an electronic connection.

            Venirepersons without conflicts will then be ordered to return to court the following day, Tuesday, where they will be questioned about the case itself, a dispute about an insurance contract.

            Apparently, it will take at least three courtrooms to conduct one trial. In the main courtroom, jurors will be spread out in the public gallery, sitting some distance from one another and from the well of the court. There will be video display monitors assisting the jurors to see the proceedings. The jury box will be transformed into the witness stand, and the lawyers will sit facing the jurors, with their backs toward the judge. Everyone will keep a healthy distance from one another. There will be no sidebars.

            A separate courtroom will be reserved for use as the jury assembly/deliberation room.

            A third courtroom will be equipped with video monitors to display the proceedings to interested members of the public.

            Only witnesses will be permitted to remove their masks, and only while they are testifying. It’s not clear what will happen if a witness refuses to unmask.

            Walking my colleague through the mechanics of presenting a case to a jury in these conditions was mind-bending. He will be so far from some of the jurors as he questions the witnesses that he may not be able to see the expression on some jurors’ faces. Communication is complex and the art of persuasion dependent on subtle cues. This covid-friendly courtroom has the feel of a meat          locker.

            But the parties have agreed to proceed under these conditions.

            I’m not sure what to make of the prospective criminal case in New Britain. The case set for trial is apparently a complex burglary, kidnaping, bank robbery case with an elderly victim. It’s difficult for me to fathom a court ordering a vulnerable person to appear in court. Twice victimized springs to mind.

            New Britain plans to reserve the entire second floor of its courthouse to this one trial. The courtrooms in the building aren’t quite as large as those in the Bridgeport federal court, but they are large enough for social distancing.

            The trial was expected to last three to four weeks before covidtopia arrived. There’s no telling how much time will be necessary to accommodate all of the new safety requirements.

            Of course, there may not be trials at all.

            I have a hard time imagining a juror ready, willing and able to serve just now. I’m sure my family doctor is not alone in cautioning avoidance of public places for the time being. And with the CDC shifting recommendations on a periodic basis, there is just too much that is unsettled about how best to cope with this novel virus.

            Yes, we need to resume the activities of daily living. I get it. But is this really the time?

            Keep an eye on these proceedings.

            Some part of me suspects that jurors simply will not appear. Or that they will flood the court with doctor’s notes to avoid service.

            In the decades that I have picked juries – perhaps 200 juries by now – I’ve yet ever to hear of a case of a juror’s being issued a citation or otherwise suffering adverse consequences for ignoring a jury summons. Indeed, years ago, I challenged a jury panel as under-representative of minorities. At an evidentiary hearing, I learned that no one had ever been fined or prosecuted for failing to respond to the summons.

            So here’s the question for next week’s federal trial, and the criminal trial set for jury selection in early November: What happens if you call a trial and no jurors respond to the summons? Will prospective jurors really be held to account in an environment where the public health professions are far from sanguine about the risks of appearing in public, sitting in a room with strangers, and spending days in close confines?

            And will a sneeze be sufficient to cause a mistrial?

            Stay tuned.


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