Does the State of Connecticut have a coherent statewide plan for the resumption of jury trials? If so, it is one of the best-kept secrets in the state. I talk each week to prosecutors in the various courthouses. One would think they would know what’s going on. They don’t.
Sooner or later there will be a crisis of constitutional dimension brought about by the seeming inability of the Judicial Branch to cope with the pandemic. What was forgivable in the early months of the crisis as we all braced ourselves for the apocalypse becomes intolerable as a new normal settles in.
Where’s the tipping point?
In early September, Connecticut Supreme Court Chief Justice Richard Robinson wrote an oped piece for the state’s largest newspaper, The Hartford Courant. He told readers that juries were fundamental, and that it was time resume jury trials. He promised a resumption of trials in November.
Did anyone tell the state’s prosecutors? Only a couple of courthouses seemed to take the chief’s hortatory prose seriously. There were rumblings that a courthouse or two might actually hold a criminal trial in November. Some jurisdictions, however, reacted as though they hadn’t even read the Chief’s oped. Others mumble about a civil trial, “maybe.”
But jury summons have been sent. Jurors are now given a “COVID-19 Exception Form.” It invites jurors to declare themselves unable to serve. Among the criterion: “I am in a group categorized by the CDC as needing to take extra precautions against contracting COVID-19. (Please log on to www.cdc.gov to view categorized groups.)”
Click on the website, and you will find yourself on the CDC homepage. With work, you can navigate your way to a page about “People at Increased Risk for Severe Illness.” I assume this is the page we are invited to review.
Among the groups who can apparently opt out of jury service are older adults, defined, on a separate page, as 65 or older, and people with medical conditions.
Then there is the following group, labelled under a banner “Other People Who Need Extra Precautions:” “Racial and Ethnic Minority Groups.” Clicking on this link yields the following: “Long-standing systemic health and social inequities have put many people from racial and ethnic minority groups at increased risk of getting sick and dying from COVID-19. The term “racial and ethnic minority groups” includes people of color with a wide variety of backgrounds and experiences. But some experiences are common to many people within these groups, and social determinants of health have historically prevented them from having fair opportunities for economic, physical, and emotional health.”
It sounds like a transcript of a CNN commentator on the latest BLM rally. Are we seriously suggesting that people of color or members of other ethnic groups no longer need to serve on juries?
More than one prosecutor has contacted me urging me to write about this. I was reluctant to do so because, candidly, I suffer from what I call White Male Fatigue Syndrome. The new anti-racism, which requires me to reject my “privilege” or admit my “racism” strikes me as a cheap rhetorical trick trying to do the hard work of actual analysis. I am not a racist; I am a misanthrope – I don’t trust anyone.
Did anyone at Judicial think this COVID-rider through?
And now comes news of increasing hospitalizations, rising infection rates and more deaths in Connecticut. Physicians are reporting the worst is yet to come. (From where I sit, it’s been plenty bad already.) Yet there are jury summonses out throughout the state. I know at least two lawyers who have been summoned to appear with clients for trial in November.
If this is the new normal, we need to do a better job of adapting to it. Secret plans publicly broadcast and inconsistently applied don’t promote respect for the law. Jury questionnaires requiring jurors to determine for themselves whether or not they are too oppressed to serve and inviting racial opt-outs won’t promote juries composed of a fair cross-section of the community. And calling jurors to courthouses when every indication is that we’re in for another catastrophic round of infection is simply irresponsible.
A federal judge in California recently dismissed a federal case in California because closed courts resulted in the denial of a defendant’s speedy trial right. I suspect there will soon come a time in Connecticut when such dismissals are entered. Candidly, we’d be better served by speedy trial dismissals that an inconsistent and incoherent policy on the reopening of Connecticut’s courts.