Three of my former law clerks, Djenab Condé, Angie Garcia, and Noel León, have written about how the pandemic, commonly known as COVID-19, greatly affected their clerkship. Their story is but one of the many stories about how, even as the challenges presented by this pandemic continue, efforts to ensure the fair administration of justice have not ceased. Instead, this moment in judicial time has revealed the deep commitment to the work of the nation’s federal courts by dedicated individuals, who have leveraged existing technology and relied on medical advice to achieve as much justice as possible.
While technology and other modifications of court infrastructure have been critical to the work of federal courts during this pandemic, these changes were viable only because of the strong foundation laid down by the Administrative Office of the U.S. Courts and the Judicial Conference of the United States, with legislative support from Congress. The adoption of the Case Management/Electronic Court Filing system (ECF) many years ago made all court filings accessible from anywhere. As a result, when courts had to shut down physically, the work of the court could continue remotely: Lawyers could continue to file pleadings, and judges could review them and issue rulings. Under the Coronavirus Aid, Relief, and Economic Security Act, commonly called the CARES Act, the Judicial Conference and the chief judges in the various federal courts around the country issued orders, where and when necessary, to permit remote proceedings. Thus, this law, these orders, and the earlier implementation of the ECF system made it possible for videoconferencing proceedings to be meaningful.
The advice of medical experts has guided the way toward the safe use of courtrooms, even during the pandemic. The District of Connecticut, like many federal courts, has relied on infectious disease experts to figure out how to proceed, and it continues to do so to this day. In Connecticut, our expert visited each of our three courthouses, as well as each of the judges’ chambers, and offered advice on how to make both our courtrooms and our daily work environment as safe as possible.
Equipped with new technology and supported by specific medical advice, I conducted my first in-person jury trial of the COVID-19 era in September 2020. I used videoconferencing technology to conduct a portion of a two-day jury selection process. On the first day, all potential jurors were screened for cause through the Zoom platform. On the second day, the jurors not eliminated for cause came to the courthouse in person, and the lawyers exercised their peremptory challenges. The trial then began that morning.
During the jury trial, the jury remained seated in the gallery, the lawyers faced the jury, and witnesses testified from the middle of the jury box, in the back row, where a standing microphone had been placed to amplify sound. The only people not wearing masks for the entirety of the trial were witnesses, who during their testimony wore face shields instead of masks. During his tour of my courtroom, the infectious disease expert advised that, given the distance of the witnesses from anyone else in the courtroom, the face shields, although considered less safe than masks, were permissible in that limited instance. The jurors used a second courtroom as the jury room, and I used a third courtroom as a holding room for witnesses. To permit public access to that civil trial, I made the trial available for viewing on Zoom.
Since that trial and through the end of October 2021, I have completed six additional jury trials, as well as a bench trial, and finished the submission of evidence in yet another bench trial. I have not used videoconferencing for jury selection in these additional jury trials, and instead have found success in bringing prospective jurors into the courthouse in smaller groups, twice a day, until a jury is selected. For the most part, a jury has been chosen after no more than two full days of jury selection, whether the case was a criminal case, where I have had 12 jurors and four alternates, or a civil case, where I have had eight jurors.
Fortunately, throughout this time, I have not had any reported COVID-19 cases arising from these trials. Just as importantly, if not more so, because of technology, medical advice, and the work of many in the federal judiciary system generally and in the District of Connecticut specifically, parties have had their cases tried and verdicts rendered. So that justice, at least at the trial level, could be done.