Tents, Smoke Machine: Judges Get Creative on Jury Trial Restart

Aug. 27, 2020, 8:51 AM

A federal court in Dallas is considering holding an outdoor trial this fall in a law school courtyard, assuming it can figure out what to do about things like pollen.

It ought to be cool enough in Texas by then, but a tent would be needed to protect attendees from the elements, Chief Judge Barbara Lynn of the Northern District of Texas told Bloomberg Law. Lynn is talking to her alma mater, Southern Methodist University’s Dedman School of Law, about whether an outdoor trial there is feasible.

Seattle judges are preparing for what is perhaps the first virtual federal jury trial—a civil case. Western District of Washington Chief Judge Ricardo S. Martinez isn’t restarting in-person trials until he tests the jury room air flow with a smoke machine.

Federal judges across the U.S. are turning to unconventional methods to move their dockets along as the Covid-19 pandemic keeps courthouses closed and caseloads piling up.

“It’s frustrating to see these cases building up,” Martinez said. “We have to do something.”

Virtual Jury Trials

The pandemic has made it all but impossible to hold traditional jury proceedings, that require more than a dozen people to sit together for hours, days, or even weeks at a time.

Virtual juries are an obvious, albeit novel, solution. If the virtual trial in Seattle goes well, Martinez said he could see replicating the approach in the future for jury selection, civil trials and potentially even criminal cases, provided the parties involved consent.

There is at least some precedent for virtual proceedings. In August, a Texas state court became the first in the country to hold a full virtual jury trial in a criminal case, a traffic matter. In an effort to increase access, the court provided iPads to prospective jurors who indicated that they didn’t have the technology to participate. That followed civil jury trials in Texas and Florida state courts.

The early experiments also provide reason for caution. A virtual trial underway in California state court prompted mistrial motions. In one instance, jurors and the plaintiff chit-chatted about how to set Zoom backgrounds while counsel for the parties left them unattended during a bench conference in another “virtual room.” The judge admonished the jury and instituted new Zoom procedures, but denied the motion, concluding there was no harm.

Another challenge may be getting litigant buy-in. Lynn said only one of the 25 sets of litigants she offered a virtual trial to in the Northern District of Texas, agreed. Lynn is hoping to hold that virtual jury trial in the spring of 2021.

Attitudes about virtual trials vary across federal districts, including within the same state. While Lynn plots a virtual trial next spring, Lee Rosenthal, the chief judge in the Southern District of Texas, says she doesn’t “think we’re going to have too many Zoom jury trials any time soon.”

“Even if we could do part of the trial by Zoom, the difficulties of picking a jury and having juries deliberate by Zoom make it complicated,” Rosenthal said in an interview.

The court would also need to figure out how to ensure prospective jurors with limited access to the internet aren’t excluded, she said.

As an alternative, judges in Rosenthal’s district are offering virtual bench trials and moving other dockets.

“What most judges are doing is taking advantage, if you will, of the lull in jury trials to focus on other things,” Rosenthal said. That includes whittling the backlog of pending motions, inviting lawyers to mediate, and holding virtual trials for non-jury cases.

Made with Flourish

In-Person Juries

Thirty of the 94 district courts have issued orders allowing jury trials to resume, according to a Bloomberg Law analysis of federal court dockets.

Even courts able to move forward with in-person trials as conditions in their communities improve are doing so cautiously, adapting the proceedings to minimize risk.

The District of Maryland which convened jury trials on a pilot basis on Aug. 24, started with two criminal cases selected because they involved single defendants and a projected duration of a week or less.

“We have to walk before we run,” said District of Maryland Chief Judge James Bredar.

Bredar narrates a video statement explaining the court’s new safety measures to prospective jurors. In the video, Bredar is shown dressed in a judge’s robe and seated in a courtroom, amid images of masked visitors walking through court security, jurors sitting in a plexiglass-clad courtroom, and court workers cleaning the building.

Lynn’s courtroom in Texas, which sits atop a highly trafficked federal building that houses several agencies, presents special challenges. Jurors, attorneys, and the public must go through security twice and ride an elevator to get to the court’s lobby. And there just aren’t many options for reconfiguring the space.

“The benches for audiences and observers are nailed to the floor,” she said.

Her district has held two criminal trials already, both of which were single defendant cases lasting a day and a half each. Jurors were required to stay on a single floor to reduce foot traffic and the risk of exposure. Observers watched from an overflow courtroom, where the trial was livestreamed.

Jurors sat in the public gallery. Witnesses testified from the jury box, which was outfitted with plexiglass and disinfected after each time someone took the stand.

Given the difficulty of assembling a jury, Lynn was reluctant to dismiss one after a defense lawyer moved for a mistrial during one case.

Instead, she instructed the lawyer to email her the basis of the motion. They resolved the relatively straightforward issue and were sure to enter it into the record. “You have to be flexible,” Lynn said.

Uncertainty is Certain

For now at least, the idea of resuming anything more than the occasional in-person jury trial in federal court remains largely aspirational. The U.S. District Court for the Northern District of Indiana, District of Tennessee, District of Alaska, and District of Guam are among courts that intended to restart jury trials, only to postpone them again as infection rates ticked up.

Chief Judge Philip Gutierrez of the Central District of California said the Los Angeles-based court is looking for a two-week decline in new Covid-19 cases to restart jury trials—a marker suggested by the Administrative Office of the U.S. Courts in outbreak guidance.

In June, when the numbers looked promising, Gutierrez’s court voted to send a summons for a potential trial at the end of August. But a spike in new infections that weekend forced the court to postpone, he said.

“Even though I personally voted to send out the summons, by the end of the weekend I thought it was a bad idea,” Gutierrez said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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