As courtrooms across the country return to holding in-person jury trials after more than a year of being on hiatus due to the COVID-19 pandemic, one of the main concerns for judges and lawyers, other than the safety of the jurors, is the makeup and quality of the jury pool. Would citizens use the pandemic as an excuse to get out of jury duty and would only those who do volunteer be a representative pool of the community to present a fair and impartial jury?
“There is no doubt that every one of us as judges has spent a great deal of time trying to figure out are we really still getting fair jurors or do we have people who are maybe self-eliminating themselves,” said U.S. District Judge Alan Albright. “Of course, we are very sensitive of making sure that the jury panel that we are selecting from remains fair because that is the cornerstone of what we are doing.”
Judge Albright, whose Western District of Texas in Waco is one of the leading courts in the nation for patent cases, was one of five state and federal court judges on a recent panel discussion entitled “Has the Pandemic Changed the Courtroom Forever?” held during the ABA TIPS/JD Virtual Section Conference. The panelists discussed many of the ways in which the pandemic has forced courts to rethink their practices, policies and procedures. The judges were unanimous in their belief that jury trials presented the most challenges during the pandemic because they were held remotely and are equally challenging as in-person trials return that look very different than they did pre-pandemic.
Across the country courtrooms have been transformed into a maze of plexiglass, sanitizer, mask face shields, socially distanced jurors — in some cases no longer in the traditional jury box but in socially distanced chairs where the public used to sit.
“We spent a lot of time and energy on how to move forward with trials,’’ said Chief Judge Linda Bell of the Eighth Judicial District of Clark County, Nevada, in Las Vegas. “We remodeled the jury box and made it socially distanced, and it now takes up about a third of the courtroom. We replaced cloth office chairs for the jury with wipeable leather chairs, pulled out public seating, moved the counsel tables back behind the bar, put up plexiglass between staff and we added livestreaming so the public could follow the trial.”
Albright said to ensure his Texas court was getting a representative jury pool, court personnel issues between 150 to 160 jury summonses. Of that total, there are typically 10 to 15 no-shows citing fear of COVID or other acceptable reasons. “That still left us with a large enough pool to select from,’’ said Albright. “We’d randomly select 30 to 35 people to appear for the venire. As best we can tell there has been no self-segregation of people not attending by age or by ethnicity or by any other factor because the initial group is so large that you still have a good mix.”
District Judge Sherri A. Lyndon was appointed to the U.S. District Court for the District of South Carolina in Florence in December 2019, just four months before the pandemic began shuttering courts across the country. She said after her court restarted in-person jury trials in September, she was curious about whether the court would get “pushback” from the lawyers on the type of jury pool they were seeing, noting that mask mandates became a political issue that caused some people not to want to serve.
“But I talked to one lawyer who had some quick research on it and found out that neither side (defense or plaintiff) had a legitimate right to complain about the makeup,” she said. “In this lawyer’s case, he was concerned that older people would stay away, and just younger people would show up and he needed a different jury from that.”
Jury makeup was also a concern for Judge Heather Welch of the Marion Superior Court & the Indiana Commercial Court. Being in Indianapolis, an urban area with a diverse population, Welch said she has not seen a change in the diversity of the jurors in age, ethnicity or gender. “And what I’ve seen in my juries is that they are happy to be there. They are enthusiastic about serving and I think they really want to help their community out,” said Welch. “I think that happens in challenging times. People are willing to give.”
Also on the panel was retired Judge Ramona See of the Superior Court of Los Angeles County in Torrance, California; and Kirsten Castañeda, a partner at Alexander Dubose & Jefferson LLP in Dallas, Texas.