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October 26, 2020 Feature

“Everybody Out of the Pool!”: The Problems Selecting Criminal Trial Juries and Empaneling Grand Juries in a COVID-19 World

Joshua L. Dratel

Twelve strangers confined in a small room together, seated around a narrow wooden table, talking, reasoning, imploring, contending, shouting, gesturing, sweating, crying, and passing around evidence as they spend hours on a sultry summer evening deciding a man’s fate. Wow, doesn’t that sound like ancient history!

The plot of Twelve Angry Men, a 1957 film starring, among others, Henry Fonda as a juror in a murder trial who ultimately convinces his fellow jurors to acquit a defendant of murder, is ancient history not only because it portrayed an all-white, all-male jury, but also because its physical and emotional intimacy would violate all of today’s social distancing and other novel coronavirus pandemic (COVID-19) precautions.

However, what will be the alternative? As the COVID-19 pandemic continues, or even in its aftermath, seating jurors who are willing and able to fulfill their obligations to serve impartially and conscientiously will present unprecedented challenges for judges and lawyers. While the issues are in many respects similar for criminal and civil trials, the added and essential dimension of a criminal defendant’s constitutional rights renders that forum the more difficult in which to seat a qualified jury. As a result, this article will focus on the obstacles confronting criminal jury trials and, to a modified extent, grand juries that initiate charges against defendants.

The novel coronavirus pandemic has already exerted a significant impact on the criminal justice system in the United States in both federal and state courts. Extended delays in proceedings, limitations on access to clients, and stalled investigations have created a significant backlog that each system will have to navigate going forward as courts resume proceedings, both remotely (initially) and, ultimately, in person as well.

However, regardless the speed at which courts and lawyers reduce that formidable inventory, one critical component of all systems—the criminal jury trial—will face continuing hindrances even after courts recommence their ordinary business. As Paula Hannaford-Agor, director of the center for jury studies at the National Center for State Courts, “a nonprofit organization now leading Covid-19 response groups of judges and court administrators from around the country[,]” told The Wall Street Journal, “That’s been the single biggest headache—how are you going to resume” jury trials, of which there are approximately 106,000 in state courts each year? Rebecca O’Brien, Is Anywhere Safe for a Jury Trial During the Covid-19 Pandemic? Try a School Gym, Wall St. J. (May 19, 2020) [hereinafter Is Anywhere Safe?].

A threshold assumption is that criminal jury trials in which jurors are not in the courtroom, hearing testimony and viewing evidence in person, would not be appropriate or constitutional. Leaving aside the advantages to judges, lawyers, and litigants of having a jury in the courtroom for purposes of examining witnesses and delivering persuasive argument, trials with “remote” jurors present a myriad of potential problems—i.e., Is someone else in the jurors’ household viewing and listening (and later contributing to the juror’s consideration of the case)? Is the communications structure sufficiently secure to preclude intrusion into the confidentiality of deliberations? Who will make certain that jurors are in attendance at all times throughout the trial and deliberations, and are not multitasking or otherwise distracted?

For example, in a Texas civil jury trial in May 2020, a juror received a phone call, decided to answer it, and walked away from the jury selection proceedings. See Angela Morris, Juror Walks Off to Take Phone Call as Texas Tests First Jury Trial Via Zoom, (May 18, 2020). Likewise, in Detroit a “virtual” mock jury selection was interrupted by a juror’s dog ambling into the room. Technical difficulties, which are always a possibility, arose for another juror. See Is Anywhere Safe?, supra.

Thus, the presumption is that criminal jury trials will be conducted as they always have: with a jury physically present in the courtroom, along with the judge, the lawyers, the defendant, and witnesses. Whether an audience would be permitted is another question of constitutional dimension, as barring spectators—particularly a defendant’s or victim’s family members—could improperly infringe upon a defendant’s and the public’s First and Fourteenth Amendment rights to a public trial. See Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980). See also Shaila Dewan, Jurors, Please Remove Your Masks: Courtrooms Confront the Pandemic, N.Y. Times (June 10, 2020) [hereinafter Jurors, Please Remove Your Masks] (“Can a trial truly be considered public if the public has been told to stay at home?”).

Focusing on juries, though, raises enough problems on its own. Assuming that even as courts restart their operations the COVID-19 pandemic will not be finished, or its contagion resolved by a vaccine, consider the impediments to seating jurors willing to sit, who can concentrate on the case, interact sufficiently with other jurors, and are committed to full and fair deliberations regardless how long they last.

Compelling jurors to spend a fair portion of the day in a confined space in which they (in most instances) share a bathroom, a sink, a table, and chairs, and then another few hours in close proximity in the jury box, presents a risk that many in the prospective venire may not be willing to undertake. Those fears would be magnified by certain factors, some of which are entirely outside a juror’s control.

A juror’s reluctance could be amplified by recent confirmation that the virus is airborne. Thus, “[t]he coronavirus can stay aloft for hours in tiny droplets in stagnant air, infecting people as they inhale, mounting scientific evidence suggests.” Apoorva Mandavilli, The Coronavirus Can Be Airborne Indoors, W.H.O. Says, N.Y. Times (July 6, 2020).

Indeed, the most precarious settings effectively describe a trial: indoor spaces in which there is sustained, loud speaking by a number of participants, whose aerosol droplets will linger and spread for hours. See Dan Buettner, COVID-19: Straight Answers from Top Epidemiologist Who Predicted the Pandemic, Blue Zones (June 6, 2020). Nor is a mask sufficient protection against hours of exposure in such an environment. Id.

A prospective juror(s) may be in a population vulnerable to COVID-19; could or should those persons be required to sit through a trial during which they will be continually exposed to infection? If so, what would be their level of concentration on the evidence as opposed to their own safety? Could they deliberate conscientiously, or instead be ready to resolve the case immediately in order to terminate their exposure?

Travel could also discourage jurors from serving. If a suburban or rural juror’s ordinary commute involves a 10-minute car ride to an office building garage (or none at all for those who continue to work from home), and then home again after work, a trip to a far denser urban environment (where most courthouses are located), perhaps involving public transportation—particularly in cities, which have suffered the most infections during the pandemic—will not be attractive in the least.

The considerations do not stop with the juror. A household member could be in that vulnerable population. Should that person bear an indirect risk of the juror participating in the trial, and perhaps bringing the virus home during the course of the proceedings? Indeed, could or should a household member such as a spouse be empowered to exercise a veto over a possible juror’s involvement in a trial?

Imagine the conversation when a spouse is informed of the prospect of his or her partner serving on a jury. Any objections would, of course, be amplified by other ongoing effects of the COVID-19 pandemic. If schools do not reopen this fall, parents will remain responsible for childcare and home schooling, a task that by all accounts has been exhausting even if shared by parents. In addition, the childcare industry itself might be curtailed to a significant extent even if only after-school care is needed. Conversely, if schools do reopen, will other jurors be afraid to congregate daily with someone who every night returns home to a child who has just spent a full session at school?

In light of the economic impact of COVID-19, the same questions apply to potential jurors who either have been unemployed or furloughed—or simply suffered a decrease in pay—during the pandemic, and need to return to or find work to earn enough to support themselves and their families. For some jurors, a spouse or other family member might have been adversely economically affected by COVID-19, which might increase the potential juror’s financial responsibilities. Also, those who are employed will likely be burdened by onerous workloads once businesses resume activity, thereby creating additional economic hardship.

In that context, the length of any trial is a principal issue. The capacity—with respect to either health or economic hardship—of a potential juror to serve for weeks or even months could simply be infeasible for the foreseeable future. Also, even in ordinary times, jurors grow impatient with the party that it perceives is extending a trial unnecessarily. Now, counsel will have to calibrate the extent of its presentation even more carefully to avoid alienating a jury preoccupied with COVID-19. Because the defense case always begins second, following the prosecution, any additional limits on jury tolerance portend ill for defendants.

Also, the danger is not simply to those in the courtroom and courthouse. As public health officials and experts have explained repeatedly, the dynamic of community contagion means that anyone with whom jurors come in contact are at risk, as are the people with whom they come in contact, ad infinitum. Thus, lawyers, witnesses, judges, and court staff both constitute a risk to jurors, and are at risk from them.

Cautionary tales abound already. In Albany, Georgia, 23 courthouse employees—including from the prosecution, defense, and court staff—tested positive for COVID-19 after a single infected juror sat through a murder trial in March. See R. Robin McDonald, Juror Zero: How COVID-19 Spread Through the Dougherty County Courthouse, (Apr. 7, 2020).

Similarly, Hennepin County, Minnesota’s “first jury trial since the COVID-19 hiatus [] resulted in quarantine for the Hennepin County district judge presiding over it, after a member of her staff tested positive for the coronavirus.” Rochelle Olson, First Hennepin County Jury Trial Since Pandemic Results in Quarantine for Judge, Staff, Minn. Star-Trib. (June 11. 2020). See also Max Mitchell, Ohio’s First Post-COVID Jury Trial Was Set to Begin. Then the Defendant Nearly Collapsed, (Apr. 29, 2020).

Defendants present a special problem, particularly if they are confined pretrial. Prisons have served as “hot spots” for COVID-19, and the abject lack of testing in most facilities means that no one knows whether the defendant brought to court—or whether some other defendant transported with him in a van that morning—carries the virus. No one in the criminal justice system wants to be infected, or responsible for infecting others; nor should anyone involved in a trial be placed in that untenable moral position.

Logistical obstacles also loom. Without in-person jail meetings, how would a defense attorney meet with a detained client sufficiently to prepare adequately for trial, much less to prepare the client to testify? Also, will lawyers be required to maintain social distance from clients in the courtroom? How, then, will they communicate during witness testimony or other evidentiary presentation? The same questions apply to co-counsel.

Even if the parties manage to seat a qualified jury, it cannot be expected that a defendant will receive fair or proper deliberation from jurors. Imagine the pressure on a hold-out juror to capitulate. Imagine the atmosphere in the jury room if there is dissent, or if tempers flare. There will likely be the proverbial rush to judgment, which will effectively deny a defendant the Sixth Amendment right to trial by jury. In light of that ongoing drain on jurors’ emotional and even cognitive resources, demanding or even expecting them to provide the appropriate measure of concentration to a case, to which each defendant is entitled under the Sixth Amendment—during voir dire, openings, the evidentiary phase, summations, instructions, or deliberations—may be asking too much and unrealistic in the current climate.

Among those who have expressed concern is David Slayton, a Texas court administrator and past president of the National Association for Court Management, who told Courthouse News he is “concerned about who’s going to show up and the changing of the composition of the jury pool, which means we may need to do some special outreach to certain communities.” Thomas F. Harrison, Not Afraid of the Virus and Reporting for (Jury) Duty, Courthouse News (July 10. 2020) [hereinafter Not Afraid].

However, courts are making efforts to restore criminal jury trials, and, as Ms. Hannaford-Agor reports, “There is a lot of very creative thinking going on around this.” See Is Anywhere Safe?, supra. In Montana, in order to implement appropriate social distancing, the state courts in one county will utilize a high school gymnasium as a courtroom. Id. While it remains to be seen whether such an awkward space provides suitable ambience for a jury trial—how far will jurors be from the witness, and will they be able to judge demeanor?—in most locales, and especially large cities, that is not a feasible alternative, given technological and other logistical demands.

In addition, in Montana, “[a]ll participants will get regular temperature checks, masks and hand sanitizer; contact with court staff will be limited, and surfaces are to be regularly disinfected.” Id. Yet whether all or some of those procedures are the rule or merely aspirational awaits practical application.

Other solutions implemented by certain states and localities appear to disregard certain protections afforded criminal defendants. For example, Arizona’s response to a reduced jury pool has been to decrease the number of peremptory challenges, and Texas courts issued an emergency order dispensing with the parties’ consent to virtual proceedings, including trials. See Jurors, Please Remove Your Masks, supra; Angela Morris, TAKE NOTE: Texas No Longer Needs Your Consent for an Experimental Jury Trial, Thanks to Emergency Order, Tex. Law. (June 30, 2020).

The practical impact of such shortsighted radical changes that implicate due process and other constitutional rights could be more delay and inefficiency, and expenditure of judicial and other resources that will be particularly precious going forward. Conducting proceedings that eventually will be reversed on appeal, and therefore require relitigation, would ultimately impair judicial economy considerably. See David A. Carillo & Matthew Stanford, Remote Jury Trials Are Possible, but Maybe Not the Best Idea, Recorder (May 27, 2020).

Moreover, the prospect of error does not exist merely from the virtual nature of a trial, even if technically viable. Manifold uncertainties can and will generate not just the usual appellate issues, but an untold number of variables—procedural and substantive, affecting not only the jury but witnesses, the court, and counsel, not to mention the defendant—could invalidate the results of a criminal jury trial, whether remote or in person during the course of the COVID-19 pandemic.

As the Honorable Barbara Lynn, chief judge of the U.S. District Court for the Northern District of Texas in Dallas, told Texas Lawyer after conducting an in-person jury trial, “I think courts are going to have to consider the extraordinary exhaustion of resources to have a trial under these conditions. I used three courtrooms. We spent significant money purchasing supplies.” Angela Morris, Chief Barbara Lynn Reflects on Pros, Cons of First Just Trial Amid COVID-19, Tex. Law. (June 9, 2020).

In anticipation of these issues arising, the National Association of Criminal Defense Lawyers (NACDL) issued a report directed at discouraging precipitous efforts at reopening courts for criminal cases. NACDL’s report declares 10 “core principles,” the first of which is that “In-Person Proceedings Must Be Certified by Independent Medical Experts to Present Minimal Risk of COVID-19 Transmission.” Nat’l Ass’n of Criminal Def. Law., Criminal Court Reopening and Public Health in the COVID-19 Era: NACDL Statement of Principles and Report at 3 (June 2020).

NACDL’s report points out that COVID-19 is a “highly infectious and potentially deadly disease, which experts in the medical profession have concluded spreads most virulently when people are in close proximity in enclosed spaces for extended periods, [that] makes business as usual in the nation’s courthouses impossible.” Id. at 2 (footnote omitted).

NACDL’s report also “recognizes that there is no way to fully reconcile these core constitutional rights with the public safety considerations arising from this pandemic[,]” but emphasizes that “[c]ompromising accused persons’ constitutional and fundamental rights—like the right to counsel, the right to confront witnesses, the right to due process, and the right to a speedy and public trial by a jury culled from a fair cross section of the community[]—for the sake of public safety results in grave injustice.” Id. at 3 (footnote omitted).

Also in June, a federal court task force published guidance on conducting jury trials and convening grand juries during the COVID-19 pandemic. That report, which “contains suggestions only,” provides “preliminary suggestions and ideas for courts to consider when restarting jury trials.” COVID-19 Judicial Task Force, U.S. Courts, Report of the Jury Subgroup: Conducting Jury Trials and Convening Grand Juries During the Pandemic at 1 (June 4, 2020).

The report’s stated intention “is to assist each court in devising protocols that will minimize the risks to all participants and spectators, including jurors, attorneys, witnesses, parties, members of the public, the press, and court employees.” Id. However, the report is careful to note that “[a]lthough the report’s considerations, if followed, may impact constitutional issues, it does not attempt to analyze or resolve individual constitutional questions.” Id. Rather, “where appropriate, the Jury Subgroup has attempted to spot some issues that judges may need to resolve depending upon their unique circumstances.” Id.

Individual federal district courts are also making provisions for safety measures. For example, the Southern District of New York already requires masks and temperature checks (plus an on line questionnaire) for all entrants to the courthouse and is reportedly installing plexiglass barriers around the witness box, enlarging the jury box to accommodate social distancing, and regulating elevator use. Id. Similarly, the District of Connecticut, in advance of resuming criminal jury trials (which have been continued until at least September 1, 2020), has imposed strict conditions for visitors (i.e., masks in all public spaces, including bathrooms), and has issued an order that “[w]itnesses testifying during in-court proceedings may be allowed to remove their masks during testimony, if permitted by the presiding judge.” See May 19, 2020, Order by Hon. Stefan R. Underhill, Chief U.S. Dist. Judge, Dist. of Conn.

In a separate May 19, 2020, Order, the District of Connecticut further acknowledged that, with respect to criminal jury trials, the Speedy Trial clock would be tolled because of

the public health risks associated with summoning groups of prospective jurors who would be required to sit in close proximity to each other during jury selection and, if selected, during trial and deliberations; the Court’s reduced ability to obtain an adequate spectrum of prospective jurors due to the public’s perceptions of the risks associated with jury service; and the effect of the above public health recommendations on the availability of counsel and Court staff to be present in the courtroom[.]

May 19, 2020, Order by Stefan R. Underhill, Chief U.S. Dist. Judge, Dist. of Conn.

Again, it is difficult to determine in advance whether such tinkering (or more) with the traditional architecture of the courtroom will substantively affect the character of trial proceedings. Already some lawyers have expressed objections, arguing that the jurors’ and witnesses’ masks will interfere with voir dire and/or cross-examination, respectively, although, ironically, one academic article suggests that a masked witness could eliminate false assumptions jurors make about credibility from physical demeanor. See Julia Simon-Kerr, Unmasking Demeanor, Geo. Wash. L. Rev. (forthcoming).

Indeed, jury selection, already of paramount importance at any trial, will assume even greater priority in the current and evolving climate. Deciding even such mundane matters as how many alternate jurors to choose could have a material impact.

Moreover, the dynamic of the jury as a whole will be a preeminent consideration. Given the public tensions between those who wear masks and/or abide by social distancing protocols, and those who do not, will that migrate to the jury if there is disparate conduct or even merely divergent opinions on those issues? Will there be hostility, ostracism, or other behavior that would divide a jury? What if a juror reports another juror for refusing to adhere to those rules imposed by the courts? See Julia Jacobs, Poll Shows One Hurdle to Reopening Broadway: Fear of Jerks, N.Y. Times (May 26, 2020) (for those hesitating to attend Broadway shows, “their single greatest concern is their fellow audience members, who they worry will show up without masks or ignore social distancing rules”).

Other courts have issued orders that could materially affect the composition of juries. For instance, the Southern District of Indiana, conceding that “[f]ull court operations cannot be resumed at this time without presenting substantial health risks to the public[,]” has recognized that “[i]n the immediate future, it will not be possible to summon a pool of potential jurors and conduct a jury trial in a manner that does not expose potential jurors, counsel, court staff, and litigants to substantial and unacceptable health risks, specifically, the danger of becoming infected with COVID-19[.]” See May 12, 2020, Order by Hon. Jane Magnus-Stinson, Chief Judge, S. Dist. of Ind.

As a result, pursuant to that May 12, 2020, Order, “the Clerk, under supervision of the Court, may temporarily excuse any person summoned for jury service upon a showing of undue hardship or extreme inconvenience, for such a period as the Court deems necessary”; this includes any potential juror who, at the time, among other more obvious and disqualifying circumstances (i.e., a positive test for COVID-19), “[i]s in a category deemed at high risk of COVID-19 infection by the CDC or federal, state, or local public health authorities” or “[i]s caring for a family member or other dependent with symptoms of COVID-19 or who has tested positive for COVID-19” or “[i]sa healthcare professional whose current employment is essential to the care and/or treatment of patients occasioned by the COVID-19 pandemic.” Id.

While such accommodations may be reasonable in light of the pandemic—and no doubt in practice such excusals will occur in most, if not all, jurisdictions—they do create the genuine danger that juries will not represent the constitutionally requisite cross-section of the community. COVID-19 has disproportionately affected African American and other minority communities. Consequently, they are far more likely to be within the population that is excused.

Due to the depressed socioeconomic status of many such communities—worsened by the economic effects of the pandemic—they are also more likely to need to work, and therefore be able to claim legitimate economic hardship as a basis for relief from jury service. They also rely more on public transportation, further discouraging them from serving, or perhaps even from qualifying—when the New York Stock Exchange reopened its trading floor in late May, it excluded anyone from using public transportation to travel there. See also David Harrison, Public Transit Use Is Associated with Higher Coronavirus Death Rates, Researchers Find, Wall St. J. (June 28, 2020).

Hesitation to use public transportation would materially affect the demographic of a jury pool racially and socioeconomically. Consequently, the homogeneity of an available venire could present constitutional problems. According to Courthouse News, studies by sociologists and the “court system itself,” in those jurisdictions in which jury trials have occurred during the pandemic, “the average juror is now more likely to be . . . a young, white man with a conspicuous distrust of science, large institutions, and criminal defendants.” See Not Afraid, supra.

Valerie Hans, Charles F. Rechlin professor of law at Cornell, one of the country’s leading experts on the jury system, added, “It’s young white guys who are most likely to show up” currently for jury duty. Id. As a result, according to Professor Hans, courts “will be clearly struggling to get anything like a representative cross-section of the community.” Id.

Also, given the reluctance of segments of the population to expose themselves to risk with COVID-19 infection still a genuine threat, will jury pools be limited to only those who oppose stay-at-home orders, or other prophylactic measures? If so, would that benefit the prosecution or defense, or would it matter what type of case is being tried?

Nor do these developments occur in a vacuum. Compounding the problems caused by the COVID-19 pandemic, other factors, such as the recent increased public outcry against police brutality, threaten to further diminish Black and other representation on criminal juries. For example, in California, in a case now being appealed, a prospective Black juror was disqualified from service because of her support for the Black Lives Matter movement. See Abbie Vansickle, You Can Get Kicked Out of a Jury Pool for Supporting Black Lives Matter, Marshall Project (July 7, 2020).

The Southern District of Indiana Order could also discriminate against older jurors, who by definition are in a vulnerable demographic. In fact, the US Centers for Disease Control and Prevention (CDC) lists factors that put individuals at higher risk for COVID-19, and they include “older adults,” pregnant women (and those breastfeeding), people with disabilities, as well as people suffering from asthma, liver disease, HIV, and other immunocompromising conditions. See Coronavirus Disease 2019: People Who Need to Take Extra Precautions, CDC.

Presumptively excusing persons in those categories significantly limits the available jury pool, thereby depriving a defendant of the necessary cross-section. Also, such practice could very well generate litigation not only by those potential jurors who are excluded, but also by defendants, regardless whether or not they belong to any protected class. See Campbell v. Louisiana, 523 U.S. 392 (2008). Jurors could also claim bias pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634.

Even lawyers and witnesses, as well as jurors, could conceivably invoke the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., which both proscribes discrimination against, and mandates reasonable accommodation of, “qualified individuals with . . . disabilities.” In fact, six New York City institutional indigent defense organizations filed a lawsuit July 14, 2020, in federal court challenging a New York State court plan to reopen criminal courts.

The complaint in that action, based in part on the ADA, begins by alleging that “[i]n the midst of the sustained and devastating novel coronavirus pandemic, which continues to disproportionately affect low-income people of color, New York City’s legal services organizations (collectively ‘Plaintiffs’ or ‘Public Defenders’) bring this civil rights lawsuit to challenge a criminal court plan to commence unnecessary in-person appearances without adequately accommodating people with medical vulnerabilities that put them at serious risk of illness and death from COVID-19, conditions that constitute protected disabilities under federal law.” The Bronx Defs. v. Off. of Ct. Admin., 20 Civ. 5420 (ALC) (S.D.N.Y. (ECF Docket #1), ¶ 1.

Anticipating some of these issues, the Federal Defenders of New York recently published a list of “Criminal Justice Standard and Best Practices During the COVID-19 Pandemic” (Best Practices), which includes a caution that because “petit juries must be selected at random from a ‘representative cross-section’ of the community[,] . . . No identifiable group may be systematically excluded from the venire.” Best Practices also recommends that “especially given the disproportionate impact of the COVID-19 pandemic on poor and minority communities, the Court should develop a plan to make any necessary adjustments to the assembling of venires and assure transparency in the demographic data of the jury pool so that counsel may make any appropriate challenge to the composition.”

Best Practices makes the same proposal with respect to grand juries, which have also, for the most part, thus far been in repose during the pandemic. Likewise, the District of Connecticut, in one of its May 19, 2020, Orders, declared the grand jury an “essential service that can safely be performed in a courtroom without anyone breaching social distancing[.]” Judge Underhill’s law clerk informed Law360 that “staff will sanitize the courtroom before and after the grand jury meets and mark socially distanced seating arrangements.” Judy Godoy, Grand Jury Suspensions a Looming Problem for Prosecutors, (May 5, 2020) [hereinafter Looming Problem]. In addition, “[j]urors will be asked to wear masks and gloves, keep their distance from one another, bring their own lunches and stagger their arrival at court to avoid a front door pileup.” Id.

Generally, though, “the suspension of federal grand juries is causing headaches for prosecutors by jeopardizing older cases and slowing down complex ones, requiring judges to consider how to bring the panels back.” Id. Prosecutors face the possible expiration of statutes of limitations, and judicial extensions thereof will be ripe for challenge by defendants. Also, the lack of grand juries renders the long-absent federal preliminary hearing, pursuant to 18 U.S.C. § 3060(c) and Rule 5.1, Federal Rules of Criminal Procedure, as perhaps the prosecution’s only alternative.

Many of the same considerations that are relevant for petit juries detailed above also apply to grand juries, as the logistics of attendance can be daunting. For instance, in the Eastern District of New York, grand juries could not reach a quorum until at least May 15, 2020. See Looming Problem, supra. Quorum issues have also impaired other jurisdictions’ ability to empanel grand juries.

Some jurisdictions, such as S.D.N.Y., have conducted grand jury proceedings partially remotely by video (achieving a quorum by virtually combining grand jurors physically present in two different courthouses within the district), but whether that practice could withstand a challenge—based on the same defects that afflict remote jury trials, discussed above—from a defendant subject to an indictment by such a grand jury remains to be determined. Moreover, the fair cross-section arguments can apply as well to grand juries.

New Jersey also embarked on a pilot program in two counties to conduct grand juries via Zoom. Initially, that program was stymied by an “opt-out” provision of which most defendants availed themselves. As a result, the New Jersey court administration abruptly rescinded the consent requirement. See Charles Toutant, After Lawyers Resist, Court Eliminates Opt-Out Provision in Remote Grand Jury Program, N.J.L.J. (June 9, 2020).

That amendment has not quieted criticism of the practice, and not only from defense advocates. See Matthew Adams et al., NJ’s Unconstitutional Experiment with Virtual Grand Juries Should End Immediately, N.J.L.J. (July 2, 2020).

The County Prosecutors Association of New Jersey, an organization representing the state’s 21 county prosecutors, issued a statement early in July opposing the remote grand jury project. The Prosecutors Association characterized virtual grand juries as a “constitutional mistake[,]” elaborating that “the Court’s plan to use virtual grand juries is premised on several faulty assumptions: that all grand jurors will have equal access to technology; that all grand jurors would have a confidential, private personal space in which to conduct these secret proceedings; and that the technology is seamless and airtight. Proceeding in this fashion would be a mistake that will compromise the Constitutional and social justice rights of defendants, victims and jurors.” See Charles Toutant, Even After Virtual Grand Juries Obtain 49 Indictments, Program Still Has Its Critics, N.J.L.J. (July 10, 2020). See also Brian Jacobs, Quorum-tine: How COVID-19 Affects the Validity of Federal Grand Jury Document Subpoenas, Forbes (May 31, 2020). But see Glenn A. Grant, Virtual Grand Juries, N.J.L.J. (June 16, 2020) (Mr. Grant is the acting administrator of the New Jersey courts).

In New York City, the state’s Office of Court Administration announced it would begin mailing grand jury summonses for sessions commencing August 10, 2020. While court administrators have pledged to maintain safety as a priority, and have instituted a number of physical alterations designed to implement social distancing and hygenic protections, other observers in the system acknowledge that many will view the duty with trepidation. As a former assistant district attorney noted in The New York Law Journal, grand jury service “requires taking the subway, taking other public transportation . . . in terms of whether they’ll show up, I mean, a summons is a summons, but who knows.” See Jane Wester, Grand Jury Summonses Will Be Sent Out as Phase Three Begins for New York Courts, N.Y.L.J. (July 7, 2020).

While the nature of the grand jury may provide more flexibility in its operation, a criminal jury trial is simply too important to be the subject of an experiment. It is not a laboratory, but a solemn constitutional exercise that determines the future of each defendant. The considerations discussed in this article have the capacity to affect each case demonstrably, and in many respects their difficulty and complexity can compound their conflict with a defendant’s concurrent right to a speedy trial.

In addition, general deterrence is a concept that courts apply at sentencing to set an example for others to influence future behavior. Here, that principle is pertinent as well, as the conduct of the courts sets an example for those citizens summoned to participate. During this ongoing public health crisis, exceptions to the rules for addressing it will be rationalized throughout society, to the detriment of all. Thus, the courts need to adopt and enforce the rules of conduct in these exceptional times to mitigate the impact of the pandemic’s spread and preserve the capacity of the public health system to handle it adequately.

As the US struggles with the catastrophic effects of hasty and counterproductive reopenings, imprudent resumption of jury trials can not only have disastrous immediate health consequences, but can also retard the ultimate return to that and other activities by interrupting reopenings indefinitely and undermining public confidence and willingness to participate.

In fiction, Twelve Angry Men produced a just not-guilty verdict. However, today, in the shadow of the COVID-19 pandemic, 12 worried jurors might not augur the same result, and we must be vigilant to maintain the integrity of criminal jury trials and the grand jury. In resuming criminal jury trials—perhaps the criminal justice system’s most essential element, and most emblematic of a fair, just, and impartial process that reflects the will of the people—its participants, including courts, lawyers, and litigants, must proceed with the care necessary not only to protect the health of jurors, lawyers, witnesses, and court staff and personnel, but also to preserve and vindicate each defendant’s right to a jury that represents a fair cross-section of the community, and that can serve and deliberate without the overwhelming distraction of COVID-19 compromising its service.

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Joshua L. Dratel is a partner at Dratel & Lewis in New York, New York. He specializes in criminal defense and is co-chair of ABA’s Defense Function Committee and a member of the Criminal Justice Section Council.