Courts across the U.S. are shutting their doors again due to rising Covid-19 cases, including several that had outbreaks inside their courthouses.
“Vigilance is the watchword,” said Southern District of Texas Chief Judge Lee Rosenthal, who sits in Houston. “Every day we check the numbers.”
At the beginning of the pandemic, courts nationwide halted in-person operations. As health conditions have allowed, they’ve been slowly trying to resume those operations. Rising infections, however, are already starting to slow that progress.
More than dozen judges and court administrators across the U.S. told Bloomberg Law they’re taking a variety of approaches to the latest surge in the pandemic. The most common measure, however, is halting jury trials. They were just starting to return.
Virus Threatens Juries
The District of New Mexico won’t be taking any new cases to jury trial for the remainder of the year. Chief Judge William Johnson said the logistics of assembling a fair jury were a consideration for the statewide district when making that decision.
“If you try to modify your jury plan to where it might be more Covid-friendly, what you’d be doing in my district is potentially excluding Native Americans,” Johnson said.
Western District of Washington Chief Judge Ricardo Martinez, who sits in Seattle, said he’s worried spiking numbers could impact plans to begin in-person jury trials in coming weeks.
Martinez said he still believes there are enough people out there willing to serve as jurors, but is concerned that “you may be able to make a really good argument from the defense perspective that you’re not getting a jury that’s representative of the jury pool.”
The Houston and Galveston divisions of the Southern District of Texas Nov. 18 voted to defer conducting new jury trials until the new year.
“We are very aware of the risk of particularly longer jury trials. Someone could get sick and we’d have to declare a mistrial or at least a very long recess, which is problematic,” Rosenthal said.
Infections in Court
Infections related to juries have already been reported.
In the Eastern District of Texas’ Sherman courthouse, at least 13 people involved in a civil jury trial tested positive for Covid-19, including two jurors and three staff members, Clerk of Court David O’Toole said. The court declared a mistrial and postponed jury proceedings in that courthouse through December, he said.
The Eastern District of Arkansas also suspended four jury trials in recent weeks after a juror either tested positive or was exposed. In a Nov. 6 order suspending jury trials, Chief Judge D.P. Marshall said almost 100 people had requested to be excused from jury duty in October and November for virus-related reasons.
Holding jury trials during the pandemic has looked a lot different than it normally would.
John Dan Kemp, Arkansas Supreme Court chief justice, said not all courthouses are large enough to accommodate the social distancing of jurors. So some local courts have gotten creative, holding jury selection in school gyms, auditoriums, and National Guard armories, Kemp said. One Arkansas county held jury selection for a capital murder case in a local civics center, and proceeded to the courtroom for the trial.
Suspending trials doesn’t prevent all infections. The Northern District of Illinois reported multiple people tested positive for the virus at its Dirksen courthouse in Chicago after it had suspended jury trials in the district as a response to increasing Covid-19 infection rates.
Even courts that have yet to experience a second surge are taking steps to prepare for an increase.
Suspending New York’s new jury trials was “really the first step backwards that we’ve taken since mid March,” said Lawrence Marks, New York chief administrative judge. “This was all about trying to limit the congregation of groups of people in courthouses,” alongside an uptick in positive cases, Marks said.
In Michigan, “every court in the state has moved backwards” in its phase of reopening, said Bridget Mary McCormack, Michigan Supreme Court chief justice.
In a Nov. 5 internal memo, the Administrative Office of the U.S. Courts pointed courts toward recommendations by the U.S. Centers for Disease Control and Prevention and suggested changes to current operations “might be warranted” if there is a 14-day increase in Covid-19 infection rates. While federal courts receive guidance from the administrative office, they can ultimately choose their own response.
More than 25 federal trial courts have canceled or extended orders canceling jury trials in recent weeks, according the Administrative Office of the U.S. Courts.
Jed Rakoff, a senior judge in the Southern District of New York, which covers New York City, is determined to keep the court running so long as it’s safe.
In light of a potential second wave, however, Rakoff said the court is planning not to have jury trials between Thanksgiving and Christmas, and potentially a couple of weeks after, as a precaution. “Those will be the periods when the threat might be at its height,” he said.
Several state court chief justices and administrators said that the first wave of Covid-19 allowed them to prepare state courts for rising case levels.
“We’re not re-shutting down,” said Nathan Hecht, chief justice of the Texas Supreme Court and co-chair of the National Center for State Court’s pandemic rapid response team.
“Courts have basically gotten their sea legs,” Hecht said, so now they are “buckling down and keeping things going.”
Despite seeing new cases peek last week in Illinois, Chief Justice Anne Burke said that “we are very upbeat at this point.”
Covid-19 has shown her and her staff the power of innovation in times of crisis. “The word ‘back’ isn’t in our vocabulary. It’s all about the present and the future,” Burke said.
“Justice isn’t a place, it’s a service,” Burke said, and “you can’t shut down justice.”
—With assistance from Porter Wells and Jasmine Han.