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South Florida judges urge lawyers to accept remote jury selection

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Chief Judge Jack TuterFacing a surging pandemic and a projected backlog of nearly 1 million cases this summer, South Florida judges are urging lawyers to reconsider their opposition to remote jury selection.

Judges from Miami-Dade, Palm Beach, and Broward counties delivered grim assessments of the pandemic to an ABOTA Ft. Lauderdale webinar.

Rising infection rates have halted jury trials in Broward County for the rest of the year, and South Florida courthouses are “teetering” on the verge of returning to Phase 1 health restrictions, said 17th Circuit Chief Judge Jack Tuter.

“I’m telling you folks in Broward, it could be the summer or later before you actually see jury panels assigned to civil cases,” he said. “We are seven months behind in criminal cases.”

Trial weeks are set for December 1 and December 8 in Palm Beach County, but that could change, said 15th Circuit Judge Cymonie Rowe.

“The chief has stated that she is committed to trying to keep the courthouse open, but we are all beholden to whatever the COVID numbers are, which aren’t good at this point,” Judge Rowe said.

Judge Tuter said local infection rates were hovering between 8% and 9%.

A “trial readiness procedure” implemented by Administrative Judge Jennifer Bailey hasn’t done enough to speed case resolution in Miami-Dade County, said 11th Circuit Associate Administrative Judge Beatrice Butchko.

Remote jury selection worked well for a hybrid trial in July as part of an 11th Circuit pilot program, and it’s needed now more than ever, Judge Butchko said.

“We can’t let this pandemic stop justice and stop our country from functioning,” Judge Butchko said. “We’re desperate to try cases, we are trial judges, and you guys are trial lawyers, so please…consider jury selection on Zoom.”

Even a partially remote jury selection, just to excuse jurors for cause, could eliminate the need to bring large jury pools to the courthouse during the pandemic, Judge Butchko said.

Judge Tuter warned that if the health crisis lingers much longer, Florida could follow the lead of the Illinois Supreme Court and require the use of remote jury selection.

A November 3 Illinois Supreme Court order mandated that all parties must consent to remote jury selection, “unless the judge finds, after weighing the factors of public safety and the parties’ right to access to justice, that the case presents a compelling circumstance to proceed with remote jury selection absent parties’ consent.”

In a survey, most Illinois attorneys opposed remote jury selection, citing such things as the inability to determine a prospective juror’s body language or non-verbal affect, concerns echoed by many Florida lawyers. But an Illinois Supreme Court task force determined that eliminating health risks outweighed the lawyers’ concerns.

ABOTA Ft. Lauderdale board member Daniel Harwin insisted that remote jury selection works well in certain circumstances.

“This requires our assistance, this requires lawyers on both sides to be open minded, and to understand that we may have to do things differently than we’re used to,” he said.

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