Cases piling up in courts due to lack of juries in covid times

In response to the coronavirus pandemic, Miami lawyer Sam Rabin took extreme precautions for a client’s sentencing hearing at the downtown federal courthouse late last month.

Rabin donned a medical hazmat suit over his normal business suit and tie, covering him from head to toe, with gloves, respirator mask and a face shield.

Rabin’s courtroom attire highlights the unprecedented disruption to judicial processes being experienced all over the country due to the covid-19 crisis which has brought jury trials to a halt since mid-March, creating a mounting backlog of cases.

“We are being put in a very difficult situation,” said Rabin, who noted it got “very hot” in his extra clothing. “There’s no way we that we are going to be able to resume jury trials until people are comfortable with going back into the courtroom … and that’s not going to happen until there’s a vaccine,” he added.

Under the Fifth Amendment of the U.S. Constitution no-one can be charged in federal court without the case being first presented to a Grand Jury. The constitution also protects every accused person the right to a trial by jury.

The situation varies between districts within each state and from state to state. Federal courts are more affected than state courts which have different rules of judicial procedure and charges can be brought by prosecutors simply by a written ‘complaint,’ except in murder cases that could result in the death penalty.

Meanwhile, many federal investigations are on hold because prosecutors are unable to bring charges due to the absence of grand juries. Arrests are being delayed due to the legal right of anyone in custody to have a hearing or be charged within 72 hours.

The courts are being heavily impacted in South Florida, the nation’s latest covid-19 epicenter. In the Southern District of Florida, which includes Miami, the chief judge recently extended the suspension of jury trials until after Oct 13, the day after Columbus Day, due to the recent alarming spike in cases. In the Middle District of Florida, jury trials are postponed until Sept 1. The state’s Northern District also postponed trials “until further notice.”

Courtroom safety

“They (judges) are concerned about how they are going to get people in the courtroom safely,” said David Weinstein, a former Miami prosecutor, now in private practice. “The grand jury rooms are not big enough. It’s impossible to be six feet apart in the jury box,” he added.

To seat a jury of 12 people it can require bringing in as many as 50 potential jurors due to the right of both the defense and the prosecution to eliminate some on legal grounds of bias.

Federal grand juries are even more complicated as they require at least 16 people and are not open to the public.

Adding to the worry is the number of covid cases in the prison system. Florida has reported 5,307 covid cases in correctional institutions as of July 15. Two days before Rabin’s hearing a 68-year-old inmate at the Federal Detention Center in Miami died from covid-19 after being extradited from Colombia.

For the time being, the courtrooms are virtually empty as judges hold non-trial hearings via Zoom.

Courts reopening

It’s the same up and down the country, according to an interactive map created by Law360, a legal News service.

The Texas Supreme Court on Monday afternoon extended the prohibition on jury trials in the state through Sept. 1, just days after the chief federal judge in Houston shut down public access to courthouses due to the covid-19 spike.

Jury trials in state court are also barred from happening except for a few, pre-approved test trials.

New York last month began holding in-person proceedings at the state’s 350 state-run courthouses with their 1,500 courtrooms after shuttering their doors nearly three months ago, but visitors will need to wear face masks in public areas and maintain social distancing. By the time of reopening three state Supreme Court justices died after falling ill with the virus.

But only state courts outside the city of New York are allowing juries to be called. Grand juries won’t begin to reconvene in New York City courts until Aug. 10, the New York State Unified Court System announced last week.

Attorneys and other visitors will be required to submit to a body temperature check by officers at courthouse doors — if the thermometer reads over 100 degrees, no entry will be permitted.

In some states like North Carolina and Virginia where the pandemic is under control, officials are undertaking a phased approach to restarting in-person proceedings and jury trials. Jurors are being pre-screening based on health, using larger courtrooms for jury assembly, and virtual jury selection in certain circumstances.

Miami-Dade County held its first test run this week of jury selection via Zoom for a civil trial in what could become the new normal for Florida courts.

Face masks are mandatory at all times and every person is spaced at least six feet apart. Instead of sitting in a jury box, jurors are spread out in the public seating area. The court also provided all participants with face shields, gloves, individual evidence notebooks and hand sanitizer.

There were some technical glitches, The Miami Herald reported. Some prospective jurors forgot to unmute while answering questions, producing an awkward moment when one could be heard taking a bathroom break.

Courtroom limits of Zoom

But some lawyers are uncomfortable with virtual jury selection as it reduces their ability to examine individuals up close.

Rabin said he could have attended the June 30 sentencing of his client in a drug case via Zoom but he chose to appear in person. “My client was facing jail time and I hadn't been able to meet him. I had to mail him documents instead,” he said. “I wanted to be sure he understood what was happening,” he added.

As he was walking to the courthouse, Rabin was stopped by two City of Miami police officers who were curious about his hazmat suit. “They asked me “is there something going on we should know about,” he said.

Inside the courthouse, Rabin says security officers and U.S. Marshals offered words of . “I don’t blame you for wearing that outfit,” one told him.

The judge appeared unfazed and made no comment about his unusual appearance, Rabin added.