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February 26, 2021 COVID-19

6 tips from infectious disease experts for in-person court proceedings

By Matt Reynolds
Some “best practices” to guide attorneys, judges and court staff when holding proceedings during the pandemic.

Some “best practices” to guide attorneys, judges and court staff when holding proceedings during the pandemic.

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As the pandemic began to rage across America last spring, U.S. District of Maryland Chief Judge James K. Bredar puzzled over how to mount in-person hearings.

The judge quickly realized he needed the help of a public health expert. He turned to epidemiologist Dr. Jonathan M. Zenilman, a professor of medicine at Johns Hopkins Bloomberg School of Public Health. He invited Zenilman to his Baltimore courthouse, so the doctor could see firsthand the challenges they were facing.

“This was a problem that had features that were way beyond our expertise as judges,” Bredar says.

Later, Zenilman and three other infectious disease experts convened with federal judges from around the country to address their concerns. The result is a 15-page summary report of the group’s policy recommendations. Zenilman describes it as a set of “best practices” to guide attorneys, judges and court staff.

Here are six takeaways from the report which can be read in its entirety here. Cravath, Swaine & Moore Associate Martha Reiser, infectious disease experts Dr. Catherine Passaretti, Dr. Dan Diekema and Dr. William Schaffner formed the group that contributed to panel discussions and co-authored the report.

1. Re-imagining the courtroom

Jury Box: One of Zenilman’s challenges was modifying the courtroom so that litigants, judges, attorneys, jurors and court staff could safely assemble. While a jury box usually has room for 12 jurors, the report recommends courts only seat four people in the box. “Physically you can’t do six feet of distance in a traditional jury box” to maintain a safe distance, Zenilman says.

Gallery: Courtroom galleries should accommodate jurors, Zenilman adds, and the public can access hearings through livestreaming rather than attending in person.

Witness Stand: Courts should consider mounting transparent plexiglass on the witness stand to give jurors and attorneys an unobstructed view of witnesses and lessen the risk of transmission. “The witness stand should be situated more than six feet away from other individuals,” the report says. In Bredar’s court, plexiglass divides the gallery from the other side of the courtroom and has been added to the tables in the main section.

2. Going with the (air)flow

Inadequate airflow is one characteristic of superspreader events that have sickened many. To mitigate the risks, high-efficiency particulate air, or HEPA filters, and units should be used in enclosed spaces in the courthouse, including detention areas and places where jurors assemble. Zenilman says HEPA filters and units may not be necessary in larger well-ventilated courtrooms. The report recommends courts increase the level of filtration in their existing ventilation systems.

“We do recommend opening windows, if possible,” Zenilman says. “Natural cross ventilation is best, but most of these courthouses are in urban settings and you end up with a lot of street noise.”

3. Not just any mask will do

Zenilman says bandanas and masks with valves and vents allow virus particles to escape. Cloth masks usually have a tighter weave and two layers. The Centers for Disease Control and Prevention has not determined if face shields effectively prevent transmission of the virus. Zenilman and his colleagues say they could be a “good alternative” to masks if jurors, attorneys and judges need to see witnesses’ faces and expressions during a hearing or trial.

4. Keeping it down

Judges with a low tolerance for dramatic behavior can take comfort in Zenilman’s recommendation that attorneys avoid raising their voices. “If you’re yelling and screaming or making a big to-do, you’re going to transmit your particles a lot further,” the epidemiologist explains.

He says that during sidebars, lawyers and judges should keep their distance. When lawyers need to consult with clients, they should use masks and face shields.

Staff should wipe down exhibits and court documents after handling them. Cleaning and sanitizing one’s hands after contact is critical. The report does not see the benefit in imposing time limits on proceedings, providing participants are masked and keep their distance.

5. Protecting jurors

Space out seats at least six feet apart in assembly areas, keep the area ventilated, consider screening jurors in smaller groups and doing preliminary examinations remotely, the summary report recommends. Courts should make sure people summoned for jury service have easy access to transportation and meals. “I can make a good case that this group should be vaccinated, especially since they are not there by their own volition,” Zenilman adds.

All court visitors should be screened for symptoms and referred for evaluation and testing if they answer “yes” to any questions during screening.

6. When to call the whole thing off

If a juror tests positive for the virus, Zenilman and his colleagues recommend proceeding “in a very judicious and careful manner.” However, staff, attorneys and jurors should be closely screened for symptoms. Zenilman says if everyone keeps his or her distance and stays masked, the risk of transmission is low. Judges could opt to send everyone home for a day and order testing. “If there’s two or more [infections], then that’s a different story,” Zenilman adds.

Bredar says the advice and recommendations helped him rearrange his courtroom so all participants could socially distance during proceedings. That meant removing benches from the gallery, erecting plexiglass and being “hyperaware” of sanitation and cleanliness, the judge says.

When Maryland’s positivity rate is above 5%, Bredar says the court follows expert advice to suspend in-person hearings and switch to remote proceedings.

“We’re doing our absolute level best to keep the federal courts open and operating to the fullest extent possible,” Bredar says. “At the same time, we can’t and won’t compromise the safety of our staff members and court users.”