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The resumption of criminal jury trials is underway

Senior Editor News in Photos

‘The biggest surprise to me was the actual jurors who appeared, they were here to serve’

Amira FoxPerhaps like the pins and needles sensation that accompanies the return of feeling to a numbed foot, Florida’s courts are feeling the way back to resuming criminal jury trials, with several trials completed in at least three different circuits.

The effort has required vast planning and coordination among judges, lawyers, clerks, and others, and creativity in using local resources. Plus, lots of hand sanitizer.

More circuits have planned to resume a limited number of criminal jury trials in the coming days and weeks and the Office of the State Courts Administrator confirmed that jury trials have occurred in the Seventh, Eighth, and 20th circuits. (At recent Bar Town Hall meetings, chief judges in the Third and 10th circuits said they will shortly begin criminal trials.)

“All jurisdictions that have held jury trials and all those preparing to do so have followed prescribed health-protecting protocols,” said OSCA Public Information Officer Paul Flemming. “Each has conducted one trial at a time. Each has done so in collaboration with justice partners — state attorneys, public defenders, and, most especially, clerks of court who in 19 circuits conduct jury services, following the standards for excusals recommended by the [Supreme Court’s COVID-19] Continuity Workgroup and put in place by the chief justice’s administrative orders. Finally, all jury trials have taken place, as always, only because of people who perform essential jury service.”

According to local officials contacted by the Bar News, one each felony and misdemeanor trials have been conducted in Lee and Hendry counties and a misdemeanor trial was held in Charlotte County in the 20th Circuit. Trials are scheduled for Collier and Glades counties.

In the Seventh, Flagler County has had two criminal felony trials, one has been held in St. Johns County, and Flagler has also had a remote civil trial. A couple trials were scheduled for Volusia County but were resolved.

In the Eighth Circuit, Baker and Bradford counties had felony trials and one was ongoing in Levy County as this story was published. Other counties are moving toward having trials, although Alachua has not yet met all the COVID-19 standards. A couple additional trials have been set but not held because they were unresolved.

All the criminal trials were conducted in person. Most were one-day trials, although at least one lasted two days.

Flexibility has been important in restarting trials.

Twentieth Circuit State Attorney Amira Fox said the Hendry County Courthouse did not have a large enough space to ensure social distancing for jury pools. So jury selection was done remotely with jurors congregating at the nearby LaBelle Civic Center, and only the final jury panel came to the courthouse.

Because of further planning, she said misdemeanor jury pools will be able to report to the courthouse.

Fox also said the initial focus was on shorter duration trials to gain experience and another factor was the defendant’s status. “If someone is in custody, they’re going to be a priority,” she said.

Lee County was able to take advantage of a large jury assembly room and courtrooms on its courthouse’s second floor, to keep jurors and court personnel safely spaced, according to Kevin Karnes, chief officer of courts for the Lee County Clerk of Courts.

It also helped, Fox said, that the Lee County Courthouse has an escalator to the second floor, eliminating bottlenecks of trying to move large numbers of people one or two at a time on elevators.

Participants said careful planning was key to the limited restarting of criminal jury trials.

“There is a weekly conference call that our chief judge [Michael McHugh] facilitates here and that gives everybody in the justice system a chance to talk out their questions and concerns about jury trials resuming,” Karnes said.

Judge James NilonEighth Circuit Chief Judge James Nilon said planning began with Zoom meetings with judges, court administrators, sheriff’s officials, clerks, court staff, and others.

“We started planning what a jury trial would look like, how we were going to space out the venire, what the jury room would look like,” he said. “We met with each individual county because they’re all unique and they all have different needs and requirements.”

There was a walk through before each trial, he said.

The details can be daunting.

“There’s deep cleaning of all the places where the jurors will be, picking the biggest courtrooms [for the trials], providing public access through YouTube, making sure hand sanitizers are filled, that social distancing is in place and all courtroom personnel are healthy,” said Seventh Circuit Chief Judge Raul Zambrano.

Nilon said a cleanser was found that effectively kills the coronavirus for four hours after use, so that is used in court spaces, including a cleaning during lunch breaks.

Karnes said in Lee County, jury check-in was at the back door of the jury assembly room instead of the front because that allowed for social distancing.

Similar to other jurisdictions, “the building has temperature checks and health and safety checks for anyone entering and everyone has to wear a mask throughout the process,” he said. “While they’re actually in the courtroom, we take them in small groups rather than all at once.”

Jurors also sit in the public areas, both for selection and during the trial to maintain social distancing.

Flagler County Clerk of Court Tom Bexley said officials learned from the county’s initial trial on August 24 — the first criminal jury trial since pandemic restrictions — and made minor adjustments for its recent second trial.

“There were a few bottlenecks on social distancing and security lines and we worked through all of those,” he said. “Those are nonissues now.”

Several of those involved in the trials said jurors were ready to participate.

Nilon said the summons sent to jurors had an additional questionnaire that basically allowed the recipients to decline service for any reason. But jurors showed up in about normal numbers.

“The biggest surprise to me was the actual jurors who appeared, they were here to serve,” Bexley said. “They walked into the courthouse not thinking, ‘How can I get out of this?’ They came here ready to work.”

The careful preparation and adherence to guidelines has paid off. Nilon said in the Baker County case, a bailiff reported feeling ill the day after the trial and then tested positive for COVID-19. The judge said jurors were notified and others in the courtroom were notified and tested — but there have been no further reports in the succeeding month of any other related cases.

Nilon credited Judge James Colaw, who presided in that case, and others for rigorously following Supreme Court and health guidelines to protect those in the courtroom.

An ancillary effect of resuming jury trials is more cases are also settling with a plea bargain or charges dismissed.

Seventh Circuit Public Defender-elect Matt Metz said that’s to be expected.

“One of the hardest parts of criminal practices is both sides aren’t certain of the other’s strength until we get very close to trial,” he said. “It’s much harder to force that negotiation until each is sure of the other’s position. It cannot happen without jury trials being available.”

Fox, the 20th Circuit state attorney, agreed.

“It’s the jury trial, being the end of the process, that makes the cases resolve,” she said. “When we started setting cases for jury trial, cases have been resolved.”

But much will have to be done to affect the backlog of cases that has built up since the pandemic halted many in-person court proceedings.

“What we’re not seeing right now is that ability to push the sides, the state and the defense, to come to an agreement,” Metz said. “Even with somewhat regular trials, there will still be so much backed up we will not be able to [reduce the backlog] until we’re going 70% to 80%.”

And that could take a while. Metz said in Volusia County the practice has been to call in a large jury pool on one day and pick juries for that week’s trials, and then have the juries come in on the day of the trial.

That won’t work in the age of social distancing where facilities can’t space out large numbers of potential jurors.

“We’ll have to pick juries on multiple days, and then space out the trials,” he said.

While the number of jury trials will expand, those involved said there’s a long way before normalcy returns.

Karnes, of the Lee County clerk’s office, said the recent jury call had a pool of about 35 people, compared with the normal jury pool size of 300 to 500 to handle three to six civil and criminal trials per day.

“It’s quite a bit different, but we’re slowly getting back to a normal sense of pace,” he said.

Eighth Circuit Public Defender Stacy ScottEighth Circuit Public Defender Stacy Scott said the relatively low number of cases won’t have much effect on the backlog. She’s also concerned that the emphasis on shorter trials means that defendants facing serious charges and more complex cases — and who are more likely to be in custody — have to wait for their day in court. Both she and Metz said there will be novel issues to resolve related to COVID-19 trials.

“The first concern that we have is very basic, which is whether or not the panel of potential jurors who actually show up for jury selection actually constitutes a fair cross section of the community,” Scott said. “There’s a COVID questionnaire, people can self select to not come in if they have underlying health conditions or concerns about COVID. That eliminates a lot of people right up front. We’re left with people who don’t have COVID concerns.

“Are we now not going to have any jurors over 65, are we not going to have any women with small children? Are we not going to have African Americans who are worried about higher COVID rates in their communities?”

Another worry is whether jurors, fretting about COVID-19 exposure, may feel rushed in their deliberations, she said.

“We’re committed to our clients, and we’re committed to getting them to trial. We just need to proceed with caution and ensure we’re doing it safely and protecting their rights at the same time,” Scott said.

“Right now, slow is better, slow is manageable,” said Chief Judge Zambrano. “We’re making preparations for when the timing is right to move up to a higher level of performance. Right now with careful steps…we have strict protocols in place and I want to make sure everyone follows them.”

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