COVID-19 shut down jury trials in Pa. What does that mean and what it would take to bring them back?

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During the COVID-19 pandemic, jury trials have not been taking place for both criminal and civil actions. As you might imagine, there are numerous health concerns that shut down the courts and may keep them closed for a while.

Morning Edition host Jennifer Lynn recently spoke with a local attorney about what this means for the legal system and how these proceedings could resume.

Joe Oxman practices law in Pennsylvania. He’s a member of the National and Philadelphia Police Accountability Projects and a member of the Philadelphia Trial Lawyers Association.

She asked him: no jury trials, no what?

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Well, that means absolutely no trials in the city of Philadelphia. The Court of Common Pleas has suspended all criminal and civil trials until the end of September as far as the federal courts are concerned. The Eastern District has also suspended all trials indefinitely.

This is an unprecedented, frustrating situation, right?

Absolutely. As far as the criminal justice system is concerned, the real issue for criminal defendants right now is whether or not their Sixth Amendment right to a speedy trial is going to be violated. Obviously, the courts have had a reason to suspend trials because of the COVID-19 outbreak. But at a certain point, this is going to be an issue, especially regarding criminal defendants who were unable to make bail and are still being incarcerated pretrial.

What would have to happen in a courtroom to get things moving?

There are three main issues. First, before trial begins, there has to be a jury pool that comes in groups of 50 to 100 people a day in each court building. And the question is, is there going to be a place in the building for all of them to safely assemble? The next issue is after a juror is presumably picked for a trial. Will they be able to socially distance in a courtroom during a trial? I know that there have been some courts in other states that have been sort of testing the waters by having jurors spread out throughout the entire courtroom in the gallery section. The state of Oregon is experimenting with using plexiglass booths to separate the jurors from the attorneys, the witnesses and the judges. That’s still up in the air in terms of how that might look here in the state of Pennsylvania. And thirdly, if potential jurors feel that because of their age or medical condition, that they are more at risk for contracting COVID-19. Will the courts dismiss them from the jury pool? And you may have a jury pool that’s not reflective of the community.

A lot of the courts in our area — perhaps they could accommodate some of the social distancing. But even so, it would probably be a pretty expensive deal to set up a courtroom, keep it clean enough, have the extra workers on hand to implement a COVID safety protocol. The city in Philadelphia right now is desperate for money. Resources are scarce. It’s not a great time to need money to get things done right.

The city of Philadelphia is talking about running deficits in the tens, if not hundreds of millions of dollars over the next few months. The Court of Common Pleas gets much of their funding from the city. The issue is what, if any, infrastructure would have to be built into courtrooms in order to accommodate jurors and trials? Money is definitely an issue in terms of developing what these courtrooms will look like for COVID-19 trials.

And how we look at each other with masks on. Can you imagine being the plaintiff, the defendant, the jurors? Often in a court, you’re really looking at physical cues, body language, how people are handling themselves.

That’s a very good question. No jury trials are inherently social endeavors. In the pre-COVID-19 world, lawyers were able to connect with jurors through nonverbal signals such as smiling. If a juror smiled at a favorable testimony, the lawyers were able to observe and note that. But if in-person trials are to proceed under social distancing guidelines with jurors and lawyers covering their mouths with masks, nonverbal communication is going to be limited. That will affect the ebb and flow of a trial.

And what are you able to do right now? You’re having some hearings?

In Philadelphia, the courts have decided to move forward with all types of hearings, pretrial hearings. They are happening either by teleconference or by Zoom conference for criminal cases if it’s not necessary for the criminal defendant to be present. Probation hearings have been going on now by video conferencing. What’s going to be interesting is if bench trials are going to start to happen now by video. Bench trials are when the criminal defendant decides not to have a jury, usually to get a quicker chance at getting a trial. Civil litigation is happening in the federal and the state courts in terms of conferences, pretrial motions, et cetera. But if civil litigants, especially from the plaintiffs’ perspective, lose the ability to have trials anytime in the near future, they lose the leverage to settle their cases. Defendants in civil trials usually are represented by insurance companies. So if a plaintiff loses the ability to go to trial, they have no leverage to push the defendant, insurance companies to settle the case, and then end up settling for less money than their cases could be worth.

Good point. Well, thank you so much, Joe Oxman. Thanks for joining us this morning.

Thank you.