Judges try to balance legal rights and courtroom health

It's tough getting people to report for jury duty in normal times. It's even harder during a pandemic.

The kidnapping and rape trial of Kenneth Weathersby Jr. opened Feb. 24 in Vallejo, California, but three weeks later two jurors refused to show up after the state ordered people to stay home. Then the state's chief justice stopped jury trials for 60 days, later extending the suspension into June.

Eventually, Solano County Superior Court Judge Robert Bowers had had enough.

At 10:24 a.m. on May 20, Bowers called the jurors who were left - 11, and an alternate - into Courtroom 101. Bailiffs offered each of the six men and six women a squirt of hand sanitizer before showing them to their seats. Four were led into the jury box, the rest to the gallery, with yellow tape covering groups of three seats to enforce social distancing.

"Citizens have a right to trials," the tall, furrow-browed Bowers told the jurors, pulling down his blue mask to speak. "We have to find a way going forward."

Solano was the first California county to resume a jury trial. Three others — Contra Costa, Santa Clara and Monterey — have notified Chief Justice Tani Cantil-Sakauye that they are resuming trials in the coming weeks, despite rising COVID-19 infection rates in the state.

In reopening, judges are trying to balance the constitutional rights of the accused to a speedy trial against the safety of jurors, bailiffs, clerks, attorneys, court reporters and others who work in their courthouses.

But courtrooms can be snug. Jury rooms almost always are. It will be very hard for people to keep the recommended distance, even as they abstain from the usual buttonholing, emoting and hugging in courthouse hallways.

Judges are conferring with health departments to limit the risks. Some courts, but not all, are requiring masks. Some are checking people's temperatures before allowing them to enter the courthouse. Others may install plexiglass or plastic barriers.

Gone, for now at least, are the days when jury duty began with scores of prospective jurors packed into halls and waiting rooms. Courthouses in Contra Costa and Monterey are staggering the times and days of the week when potential jurors report, and calling only 50 people at a time to prevent large groups from gathering. Some are adding temperature checks to their usual security screenings.

"If they have a temperature over 100, they won't be allowed in," said Barry Baskin, presiding judge for Contra Costa County.

All the courts resuming trials say they'll allow people to delay jury duty if they have concerns about the coronavirus. "We're doing everything we can for their protection," Baskin said.

Forty-eight states and territories — all except Illinois, Nebraska, Nevada, Ohio, South Dakota, Texas, American Samoa and the U.S. Virgin Islands — have restricted jury trials, according to the National Center for State Courts. So far, 14 states have reported coordinated statewide plans to reopen. California isn't one of them.

At the federal level, decisions to resume jury trials are made on a district-by-district basis. All federal courts moved hearings to videoconferencing on April 8.

Health concerns and the legal rights of the accused are bound to be in conflict sooner or later in every jurisdiction.

Under the U.S. Constitution's Sixth Amendment, defendants have a right to confront their accusers in a speedy public trial by a jury of their peers. In California, trial is supposed to start within 60 days of arraignment for a felony case and within 45 days for a misdemeanor. The chief justice's order can provide relief from those deadlines on a case-by-case basis in the interest of public safety.

Still, some counties are reluctant and want Cantil-Sakauye to delay trials into July. The chief justice's ruling allows courts to reopen earlier if they can do so "in compliance with applicable health and safety laws, regulations, and orders, including through the use of remote technology, when appropriate."

"The further we get away from the height of the pandemic, the more likely people are to show up," said Alameda County District Attorney Nancy O'Malley, president of the California District Attorneys Association.

"We are still hoping and pressing that people will respond," said Chris Ruhl, court executive officer for Monterey County. "Jurors are real heroes in these times."

While health officials recommend masks to prevent the spread of the coronavirus, testifying while wearing one may violate the Sixth Amendment, which allows a defendant to literally face their accuser, Baskin said.

The U.S. Supreme Court determined in Coy v. Iowa in 1988 that witnesses can't testify behind curtains or other visual obstructions. In the current pandemic, the Ohio Supreme Court ruled in April that witnesses must lower or remove their masks when testifying.

Courts are looking to erect plexiglass barriers around witness stands, or have attorneys and witnesses wear clear plastic face shields, so everyone in the courtroom can see and hear what is said.

But mandates for such measures will come on a county-by-county basis. That frustrates Oscar Bobrow, chief deputy public defender in Solano County and the president of the California Public Defenders Association. He wants a consistent state policy and notes that Ohio released a 93-page guide to resuming jury trials after consulting with people from across that state's legal community.

Bobrow worries that fear of infection will result in juries with fewer African Americans and Hispanics, two groups that have suffered the brunt of the pandemic. People over 60 might also be reluctant to appear; some counties would exclude them from jury service, according to guidelines posted on various websites.

"The whole process is going to be slowed down, if it's done right," he said.

If courthouses don't do enough to protect jurors from the virus, the panels may be unable to concentrate on testimony. "You'll be more worried about someone sneezing than what's being said to you," Bobrow said.

When Weathersby's trial resumed May 20, fewer than 25 people sat in the courtroom, which has a new maximum capacity of 53. Yellow tape over seats assured they sat at least 6 feet apart.

Masks were "strongly recommended" but not required — and four jurors declined the ones offered by bailiffs.

"We have a balance of personal freedoms and human protections," Bowers told the jurors. "This is the new norm. This is what jury trials will look like in the future."

The jury found Weathersby guilty on 10 counts, including forcible rape and kidnapping to commit rape. He faces multiple life terms at sentencing, scheduled for July 14.

This KHN story first published on California Healthline, a service of the California Health Care Foundation.