Criminal Case Status in the COVID-19 Era, Part 3

Criminal Case Status in the COVID-19 Era, Part 3

Jury Trials Present A Major Challenge Now

This discussion is not meant to be comprehensive, in that such an endeavor would entail a much longer piece.  Nonetheless, pointing out some of the considerations and questions can serve to illustrate the larger point. Please check out the much shorter part 1 and part 2 of this blog series for context.

What’s Normal For Jury Trials?

Assembly Of Prospective Jurors

Those who are summoned to appear for jury duty were chosen randomly from voter rolls and state-issued identification and driver licenses. Panel sizes vary greatly, depending upon the case being tried.  Some panels may be as few as 25 for a misdemeanor (6 jurors in a trial), while others for felonies (12 jurors in a trial) or high-profile cases can be 50-100 or more.  If the judge deems it advisable, alternate jurors may be added to the normal 6 or 12, just in case a juror becomes unavailable and cannot serve.

In larger counties, prospective jurors may be grouped into panels and sent to particular courts in various parts of a courthouse. They are organized, sequentially numbered, and seated side by side on the rows nearest the lawyers.  Lawyers typically have an opportunity to readily see and hear the panelists while they conduct voir dire, which happens by lawyers questioning the panel members.

Voir Dire And Jury Selection

A right to a jury trial is essential.  That right must include a reasonable cross-section of societal peers, as well as a fair and impartial jury. That doesn’t happen by itself.

For a jury trial be a meaningful right, prospective jurors must be vetted for bias and partiality.  “Voir dire” is the process by which lawyers on both sides can ask questions directly to prospective jurors, who are sworn to answer truthfully.  If a sworn declaration of “I can and will be fair and impartial to all parties in this trial” were sufficient, no questions would be required.  We all know that is ridiculous.  Simply taking a person’s word for it is grossly irresponsible and more blind to reality than even the most naïve person. 

People generally want to believe they are fair, even when they are not.  Sometimes, they can’t be fair because their feelings and beliefs won’t allow them to be fair.  People also want to believe they can discipline themselves to perform well, such as being impartial when called upon to do so.  Experiences, beliefs, biases, and other characteristics which help form opinions can easily interfere with impartiality, even on an unconscious level. 

For example, a perfectly reasonable, upstanding, honest person whose child had been killed in a wreck with a drunk driver would not be expected to be impartial in an Intoxication Manslaughter trial.  No matter how vehemently he/she insists upon his/her impartiality, no reasonable person would believe him/her.  That’s not to find fault with the person, but to point out that some people should not be on some juries.

Often, lawyers will employ assistants to closely observe the panelists’ behaviors; more pairs of eyes and ears are better than one. This is done to help the lawyers formulate questions and identify issues the lawyer may have missed.  Most importantly, that information is invaluable for making decisions about who to challenge and strike from the panel.

For example, a smirk, an eye roll, or any other easy-to-miss facial expression can reveal a panelist’s feelings.  Those feelings can have direct impact on their verdict.  It is essential to identify those people, if possible. 

Frequently, people will swear to be fair and impartial, even if their bias is plain.  They may even believe they can be fair and impartial. Sometimes, they don’t want to disappoint the judge.  Some may simply want to say what they know the judge wants them to say.  Who wants to go on record saying “I’ll be unfair”, “I don’t like people accused of crime”, or any other imaginable statement for which they might feel judged harshly for saying? Sometimes, it’s because they have a motive they won’t reveal. 

Further, the dynamic of the entire panel interacting and engaging with each other is important.  They all get to hear the same questions from lawyers. They all get to hear the answers and non-verbal responses of their fellow panel members.  Often, they will augment each other’s answers and provide colorful insight everyone gets to hear.  Jurors commit to certain ideas relating to fairness and adherence to law, rather than less disciplined reasons.  They learn of the solemnity and gravity of the thing they may be selected to do.  During opening and closing arguments, lawyers also regularly refer jurors back to the shared experience of voir dire to remind them of what they agreed to do and not do.  It provides common ground without having to rehash the events of voir dire.

Any panelist may be struck “for cause”, which means they cannot serve because they have demonstrated they cannot be impartial or are otherwise unfit to serve as a juror in that case.  Each side of the criminal case also has “peremptory” challenges, which allow the attorney to strike panelists without needing a legal objection.  In misdemeanors like a first-time DWI, each side has 3 peremptory challenges, while in felonies like DWI-3rd Offense, each side has 10 peremptory challenges.

Many attorneys, including myself, consider voir dire to be the single most important aspect of a jury trial. A panelist who quickly stifles a barely noticeable chuckle when another panelist says he believes people are presumed innocent is not someone I want on my client’s jury, even if he swears he can be fair, which will almost always happen.  Voir dire is extraordinarily subtle and nuanced.  

Logistics In Courtrooms During Trial

In perhaps every court I’ve seen in my more than 25 years of practice, jurors are seated closely to the witness stand, usually giving the jury the best opportunity in the courtroom to view the witness up close.  This isn’t by accident.  Courtrooms are planned that way with good reason.  The function of the jury is to be “fact finder”, which includes deciding what and how much to believe, if anything, when a witness testifies.  Seeing that witness up close is important to evaluating credibility. (The same is true of the judge, who is the fact-finder in cases without a jury. As you might suspect, the witness usually testifies while sitting in close proximity to and between the judge and jury.)

Cases are frequently won or lost by how jurors evaluate witnesses, not only by what they say, but by what the jurors see.  Like voir dire, evaluating a person’s credibility can depend on the slightest cues. 

For example, a witness who bites his lip as he’s hearing questions from the lawyers is revealing something about himself and his testimony.  It may affect jurors’ assessment of whether he is lying or telling the truth, as well as how convincing or unconvincing the witness is. Even if a witness is believed, it could only be up to a certain point, and that point could be short of eliminating a reasonable doubt left in a juror’s mind.  That lip biting alone could be the basis of a reasonable doubt in a juror’s mind. 

How much faith would you put into a witness who bites his lip every time he’s asked a question?  Your fellow jurors may feel the same or differently.

To reach a verdict of guilty or not guilty, all jurors must agree on the verdict. They are not required to agree on the exact reasonable doubt remaining in their minds.  It may be unreliable testimony of a lip-biting witness for one juror, while others doubted a crime lab test result or process.  If even one juror has a reasonable doubt, no conviction is authorized.  If all the other jurors agree on guilt, but one continues to have a reasonable doubt, the result is a mistrial, and the state must choose whether to try the case again or drop the case.  Even a single juror with a single reasonable doubt prevents a conviction.

Lawyers make similar evaluations during trial.  We carefully pay attention to the faces and behaviors of witnesses.  The same is true about observing judges and jurors.  For example, seeing a juror’s mouth open in a mild gasp in response to live testimony can indicate the impact the witness is having. That almost imperceptible reaction can tip off the lawyer to the importance of countering that portion of the testimony on cross-examination or by addressing it another way. 

Without doubt, keen observation during trial, from the assembling of jury panels through verdict, is absolutely essential.  I defy anyone at all who refutes the importance of close, careful, intense observation of behaviors displayed by jurors and witnesses.  I submit anyone who disagrees has no familiarity with trials at all.

Jury Trials During Pandemic Conditions

Until the COVID-19 pandemic is under control in Texas, assembling people for jury service will present risks for transmission.

Meanwhile, the choice will be either no jury trials at all or jury trials with precautionary measures in place.  No plan will eliminate risk.  What constitutes acceptable risk is a debate raging right now within legal circles.

Judges across the state have been working on jury trial plans, along with the clerks who do the actual work of summoning and managing people when they arrive for jury duty.  This is done on a local level because courts are not uniform in size, layout, shape, and many other factors. The Office of Court Administration is also involved, as it needs to review, and if appropriate, approve the plans.

Social Distancing

Social distancing is merely one precaution, and it alone makes most normal courtrooms impractical for jury selection and trials.  Courtrooms are usually too small to seat all the panelists while maintaining social distancing.  

Seating people six feet apart during trials is impractical, if not impossible.  Existing jury boxes are inadequately small for such a practice.  

One proposed solution is to use vast buildings like convention centers and warehouses.  It’s a terrible idea.  It’s unacceptable.  Intimacy is critical to jury trials, even without considering logistical problems like acoustical issues.  If even one juror has trouble hearing lawyers, the judge, or witnesses, the entire process is compromised. 

Breaking panels into small groups of perhaps 10-15 to be questioned at a time while socially distanced is one proposed solution. That “solution” would require the entire voir dire to be conducted multiple times.  The shared experience of voir dire would never occur.  Each and every piece of the panel will lose the dynamic of that group interaction.

Judges are also notoriously impatient about the time it takes to conduct jury selection, sometimes urging lawyers get it done in minutes.  (I’m not kidding.)  Usually, judges realize this is unreasonable and unsustainable, so they allow for substantially more time.  I’ve never seen a judge adhere strictly to a time limit when the group dynamic of the entire panel kicks in, and they are actively engaged in answers and discussions.  In my experience, voir dire for most cases takes 1-2 days.  This idea would multiply the time it takes to choose a jury, perhaps from 1-2 days to a week or more, IF everything goes perfectly as hoped.

Face Masks

Wearing face masks appears to be a mandatory and universal proposal, and it should be.  Generally, any in-person gathering should require masks during this pandemic.  However, it, too, is a terrible idea for jury selection and trials.  How are jurors supposed to see lip-biting witness behavior under a mask? How are lawyers supposed to see a juror gasp behind a mask? How are jurors going to evaluate masked lawyers who make opening and closing statements to jurors?

Unsurprisingly, criminal defense lawyers don’t seem to be invited to the planning stages.  We are the people who are responsible for making things difficult for the government and to put our clients above every other consideration.  We insist on what no one wants to hear.  We give voice to unpopular people.  We do our level best to make it difficult to impossible to convict and punish our clients.  We are used to it.  Judges are used to it, too.

The largest criminal defense lawyers group in Texas, Texas Criminal Defense Lawyers Association, recently invited itself to the party.  (I first joined TCDLA in 1997 and consider it an outstanding group.) It sent a recommendation to the Supreme Court of Texas to require consent of all parties to conduct a jury trial during a worsening pandemic. That recommendation was apparently rejected, based on the Court’s latest order.

No Normal Exists for Pandemic Jury Trials

Who will show up for jury duty during the pandemic? That single consideration is enough to dissuade me from the notion we can have fair jury trials for defendants during the pandemic.

I believe it will disproportionately harm the accused.

People who disregard the pandemic precautions will not have that reservation about attending.  Regardless of their reasons, it displays a willingness to put other people at risk.  I believe that would carry over into the decisions made about people accused.  People who are more cautious and risk-averse will be more likely to stay home.  Many factors come into play, but I know I prefer to have people on a jury who don’t want to take unnecessary chances to harm anyone.  I want jurors for whom a mistaken guilty verdict would be an absolutely unacceptable risk.

People with pre-existing medical conditions would also be particularly underrepresented in the jury pool.  In South Texas, diabetes is extremely prevalent, especially in the Hispanic population. According to the U.S. Centers for Disease Control and Prevention, 40% of the people who died from COVID-19 were diabetics.

Considerations about age are already considered in laws pertaining to jury service, but many elderly people choose to serve.  Their participation would be curtailed, as well.

Allowing these groups the choice to opt out, even if they want to serve, is no choice at all.  It also deprives the accused person of a reasonable cross-section of the community’s population. 

Practical Problems Abound

Imagine witnesses having to wear masks, or some glare from a light on a plexiglass interfering with the jurors’ ability to see the lip-biting or other cues. 

Imagine being on the jury, wearing a mask, and your glasses fogging from the mask.  Imagine taking off your glasses for that reason. You could miss critical cues throughout the trial.  Any of these could influence your verdict.

Is ventilation in the courtroom going to be adequate? It literally circulates shared air

Taking prospective juror’s temperature upon entry can only provide an indication the person may have COVID-19, nothing more.  Depending upon where the person is when the temperature is measured, he/she may have already infected other prospective jurors and those tasked with testing temperatures. 

Suppose everything works great in court, every possible thing which could go wrong goes right, and every possible precaution taken is 100% effective. Each day the panel, the judge, the lawyers, the clerks, the court reporters, the bailiffs, the security personnel at the entry, the custodial staff, the maintenance staff, the witnesses, the defendant (who may be in a COVID-19 infested jail), and everyone else in the building leaves, presumably to go home.  Let’s not even talk about lunch and the possibility of eating in a restaurant. If even ONE PERSON returns with the virus, potentially everyone in the process could be required to quarantine for weeks. Every single day constitutes a multitude of risks. Remember that 1+ week voir dire before a single witness is called to testify?  How’s it looking now?

The practical implications are overwhelming.  Look at Major League Baseball. Highly motivated people with billions of dollars at stake doing something they love are contracting it and spreading it, despite precautions and many millions of dollars of intensive testing

Are courts going to test people for the coronavirus? How many people will be unwilling to go to jury duty when they discover it requires a 6-inch swab stuck up their noses?

Who pays for the testing?  Are courts going to wait for results?  If so, how long?  What if a positive is mistaken for a negative, and the person tested is allowed to interact with others? Will testing be done every day for every person at the courthouse? If cross tracing results in a juror or panelist being identified as a person who had been in close contact with someone with COVID-19, necessitating isolation or quarantine, does that stop the entire legal process in its tracks?

Defendants have a constitutional right to the lawyer of their choosing, assuming they can afford one.  What if the lawyer chosen is in a category which constitutes higher risk of death than other groups? Does that mean your trial gets delayed?  Sure, you could get another attorney.  There are over 100,000 in Texas alone, but that doesn’t mean they are interchangeable, practicing in the jurisdiction of your case, of equal trustworthiness, ability, knowledge, skill, and experience. Must you give up that right because a pandemic rages?

How can lawyers conduct effective voir dire in auditorium-like environments with masked panelists?

If jury trials happen at all during the pandemic, masks will certainly be mandatory in the building.  Will everyone keep the mask on at all times? Will their masks cover both their mouth and their noses?  What constitutes an acceptable mask? Will they temporarily lower or remove masks?  Would that be punishable by contempt of court? How many times and under what circumstances would failure to comply with a court’s order to wear a mask properly get a prospective juror excused/kicked out? Would that then mean the entire panel could’ve been exposed to the virus?

Will alternate jurors be utilized as a precaution against having to stop the trial, in case a juror becomes ill? If so, be prepared for a longer voir dire and even more people in the courtroom during trial. Each one presents another person who could bring in the virus.

If anyone involves sneezes or coughs, will there be a protocol in place as to what to do, if anything?  What if the sneezing or coughing persists?  Will Sneezy/Coughy be escorted out of the building?  What will be on the other people’s minds?  The proceedings? Their safety? Their possible exposure? Whether the state proved its case? Dividing a jury’s attention during trial is a supremely bad situation.

How are jurors going to effectively hear and read the facial expressions of witnesses who are wearing masks?  By introducing unusual physical elements to a trial setting, witnesses and jurors, lawyers and judges, we lose our normal tools for evaluating their credibility and emotions.

Different For Inmates Wanting A Jury Trial?

For some people, a speedy jury trial is especially important.  Those being held in jails and without the prospect of making bail come to mind as the most likely to be willing to accept the risk of infection.  In fact, they are already at much higher risk of contracting COVID-19 by virtue of being in jail, and they may have already been infected.

Will those trials be fair? If defendants object to the deleterious effects of precautions on the effectiveness of their defense, will that mean they will be denied a jury trial?  If convicted, will they be able to appeal based on how precautionary measures affected their trial, whether an objection was made or not?  Is it reasonable to deny their appeal because they may waive certain rights which were undermined by the pandemic? Will they be required to waive certain rights to have a jury trial?  Is it reasonable to provide a jury trial only if the defendant waives his/her rights?  How many and what rights must an accused person allow to be compromised to get a jury trial?  Should we, as a society, hold ourselves to a lower legal standard? The entire thing reeks of a Hobson’s Choice.


I believe no jury trials should go forward without the consent of the accused during a pandemic. Forcing people to be tried under pandemic circumstances necessarily curtails express rights which literally trace back thousands of years in practice across multiple civilizations.  I also believe no jury trials will be fair under pandemic circumstances.

I believe the only rational, legal, fair, and just solution is to allow people being held without conviction to be released pending trial.  The practicalities to this proposal are definitely daunting and challenging, but alternatives should be explored.  Adopting an attitude deeming a compromised jury trial as better than no jury trial is much easier when you’re not stuck in a filthy jail insisting on your rights and fighting for your freedom. Keeping people in jail with no prospect of having an opportunity to be fairly tried in the foreseeable future is unjust, unconstitutional, and characteristic of an unfree society.