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April 05, 2021 National Conference of State Trial Judges

NCSTJ Chair's Column

Continuing the Pursuit of Justice: Trials During a Pandemic

By Hon. Linda M. Bell, Las Vegas, NV

When the pandemic "hit" Nevada and our Governor called for a shutdown, I was in the middle of a criminal jury trial.  We were granted permission to finish that trial, and then our jury trials went dark for months.  During that period of time, six judges and I met weekly to devise a plan to restart jury trials when the time was appropriate.  This was an incredibly delicate and challenging process where we repeatedly tried to balance two critical components:  an individual’s constitutional right to a speedy jury trial and the public’s right to health and safety.

As all of you reading this article are aware, individuals' views on COVID-19 span a vast spectrum regarding their reactions to their health and the virus.  This group of judges and I watched the national judicial response to the virus and jury trials for months.  We looked at statistics, viewed how other jurisdictions were handling jury trials, and consulted with local health officials regarding how to facilitate a return to trials safely.  In the end, we decided that we were committed to safely resuming jury trials in order to fulfill the court’s responsibility of providing fair and timely administration of justice.  To do so, we utilized several solutions and protocols to give individuals their right to a speedy trial and balance that right with the needs for peace of mind and health for jurors, witnesses, court personnel, and attorneys.

First, we sent all prospective jurors their jury summons accompanied by a letter discussing the COVID-19 safety protocols that we had devised with our local healthcare partners.  Jurors were also informed that we had constructed two COVID-19 compliant courtrooms.  These courtrooms had been re-configured so the courtroom could facilitate six feet of social distancing between trial participants.  In areas where six feet of social distancing was not possible such as the judge’s bench, witness stand, counsel tables, and court staff desks, Plexiglas physical dividers were installed.  Also of importance, there was an allowance of deferral for individuals who were considered high risk, such as persons 65 years of age or older or persons with underlying medical conditions.  We also required and provided, when requested, face coverings.  Every individual within the courtroom was required to wear a mask at all times.  Jury questionnaires were used with each prospective juror.  These questionnaires sought information regarding whether the prospective juror believed they could safely serve as a juror at this time.  Lastly, we purchased Synexis DHP technology, which continuously uses dry hydrogen peroxide to reduce harmful bacteria, viruses, fungi, and mold in occupied spaces.

With months of preparation and safety protocols put in place, it was finally time to test the waters.  Jury trials commenced on February 8, 2021.  Now, jury duty, while important, is not usually on prospective jurors' top ten list of things they wish to do that day.  As jurors poured in, six feet apart, it wasn't easy to assess their feelings about being called for jury duty.  With everyone in their seat, I came down off of the bench so that I could look each one of them in their eyes to discuss with them how important their health and safety were to me.  Standing six feet from them at all times, I discussed everything we had researched, discussed, and facilitated so that we could keep them safe.  I saw a lot of heads nodding but received no response from many.   As I retook my seat on the bench, I did the standard opening introductions, and then it came down to the time to ask questions.  There is one question that every judge asks with some hesitation because you never know the myriad of answers you are going to receive.  I had no way of knowing the type of responses I would get when I asked:  We anticipate this trial will last eight days.  I recognize that serving on a jury is almost always a personal or financial hardship.  You may be confronted with unique inconveniences or difficulties that would impact your service in this particular trial at this specific time.  Is there anyone who has an extraordinary reason why they cannot serve as a juror in this case?  Now everyone who has ever been through jury selection knows the types of answers you can get to this question, some of which are incredibly outlandish.  To my surprise, not one hand was raised.  In the middle of a pandemic, with people wearing masks, covered in hand sanitizer, six feet apart, not one person in that room raised their hand.  To say I was shocked would be a complete understatement.  The admiration and pride I had for those prospective jurors is difficult to put into words.  Their selflessness and willingness to serve and diligently perform their civic duty was inspiring.

As I write this article, I am now in the middle of my fourth criminal jury trial.  After each trial, I have had the opportunity to meet with jurors.  I have consistently asked them if there is anything we could do differently, anything more we could do to make them feel as though they are a priority and they are safe.  The only suggestion given was a request for more hand sanitizer on the tables where the jury sits.  Other than that, all were happy to serve and found it to be a pleasurable experience.  Many were glad to be out of their homes, thrilled to get to speak with other individuals, and excited to be in an environment where they served a purpose.

I believe that this pandemic has taught us many things and has changed some of our views on different issues.  Most people want to know and feel they are heard, respected and that their health and safety are important to those of us in this courthouse.  I am grateful and humbled by the time and energy that these judges and court administrators have put in so that we could strike that balance of the right to a trial with the safety of the public.  As we continue to move forward and move past this pandemic, I hope that we will never forget the lessons we have learned and the dignity and respect that we have shown one another.