The mail arrived the other day and there it was, the blue, slightly larger than letter-size envelope with the words “JURY SUMMONS ENCLOSED” blazoned on the front. I was being called for jury duty at federal district court just as the upturn in the curve indicated an increase in Covid-19 cases. But, unlike in the past, where the envelope’s contents provided little guidance as to what the process of jury selection would entail, it now included a personal letter from the Chief Judge describing the steps the court is taking to protect jurors from Covid. It also contained a questionnaire aimed at determining whether I might be infected with Covid or might present a danger of infecting others – questions that now are all too familiar but are new to the process of jury service.
What was not new were the standard exemptions, such as whether I am the caretaker for children under the age of twelve or for an elderly or infirm person. But these exemptions now took on new meaning. They raise important questions about how our experience with the virus will affect jury service. Will the evidence of the virus’s disparate impact on racial and ethnic minorities and on elderly populations lead to jury venire composed disproportionately of younger people and fewer people of color as the elderly and minorities elect to be excused? And how will the vagaries of the experiences of each jurisdiction impact the manner in which some common exemptions are implemented? For example, the Southern District of New York provides for an exemption from service to primary caregivers of children under twelve who are not employed outside the home while the District of Massachusetts reportedly increased the exemption from jury service for primary caregivers of children under age twelve to age fifteen. Indeed, will the increased number of parents providing full time childcare and supervising remote schooling eliminate this subset of the population from potential jury pools regardless of what the precise age cutoff is? Even if courts manage to surmount these problems and empanel “an impartial jury” representing what a court believes is a reasonable cross-section of the community, will verdicts by these juries be overturned because the actual impartiality of the jury will be called into question by the need to operate under potential threats to one’s health?
The first criminal jury trial to be held in New Jersey since the start of the pandemic, State of New Jersey v. Dangcil, illustrates the challenges of selecting a representative jury while adhering to safety and social distancing requirements. The Dangcil trial briefly was stayed by the Superior Court of New Jersey after defense counsel challenged the jury selection process implemented in New Jersey courts to address Covid concerns and moved for jury proceedings to be suspended until “normal jury selection proceedings” may resume. Defense counsel argued that the selection process was “constitutionally deficient” because it “failed to produce a fair cross-section of the community or equally distribute the duty of jury service” and because it excluded “eligible jurors who are older in age or of lower economic class” because potential jurors were required to submit questionnaires online and to appear virtually to be screened at the initial stage of jury selection. The defendant further argued that voir dire “in a socially-distanced setting is unconstitutional as it obscures the jurors’ view of the defendant and prevents counsel from assessing credibility of jurors.”
In an brief Amicus Curiae to the appellate court, the New Jersey State Bar Association expressed concern about another aspect of the jury selection system: the Jury Management Office’s (“Jury Office”) unfettered discretion to grant or deny juror requests to excuse them from or defer service and the Jury Office’s failure to collect and maintain records that “could have revealed whether the jurors who were excused consisted disproportionately of certain classes, and thus unfairly skewed the available jury pool towards an unrepresentative sample of the public.”
On October 13, the Superior Court made public an order lifting the stay and concluding that the jury selection process was transparent, outlining the jury summons process (through which the court offered to provide technology to jurors in need) that yielded a 22.38 percent response rate (which was not significantly lower than the February 2020 pre-pandemic response rate of 28.37 percent), and finding that there was “no showing, technical or otherwise, to rebut the presumption of validity, or any evidence to suggest that the selection was non-random or that any constitutionally cognizable group was excluded from the array.” The trial reportedly resumed this week after the New Jersey Supreme Court denied the defendant’s application for emergency relief but stated that because of the “importance of the issue raised” it would consider a post-trial application.
In the U.S. District Court for the Northern District of Illinois, in United States v. Vorley, one of the first high profile federal trials since March, a jury was empaneled without incident but issues arose after a juror called in sick with COVID-like symptoms. The jury in Vorley ultimately convicted two former Deutsche Bank AG traders of wire fraud for manipulating gold and silver prices by posting and then canceling large orders (known as spoofing) but acquitted them of other counts of wire fraud and of the overall conspiracy. The trial reportedly was conducted in a large courtroom that allowed for social distancing and participants wore masks. Fourteen jurors were seated, but after a juror reported suffering from COVID-19-like symptoms and two additional jurors were excused to consult medical professionals about their possible exposure, the parties agreed to proceed with only eleven jurors participating in deliberations. Over the course of the following four days of deliberations, the jury advised the court multiple times that it was unable to reach a unanimous decision, but shortly before 4 p.m. on a Friday afternoon, the foreperson advised the court that the jury reached “an agreement.” A lawyer for one of the defendants told Am Law Litigation Daily via email that “There is no doubt the jury compromised to escape the jury room” and that “three compromise counts of conviction—an ‘agreement’ reached after the jury three times informed the judge they were hopelessly deadlocked during four days‘ of masked deliberations that kicked off with a juror’s hospitalization with Covid symptoms—cannot be squared with the acquittal on the overall conspiracy.” The defendants are moving for a new trial.
These are just two of many civil and criminal jury trials that are tentatively moving forward with varied processes and procedures. In Texas, a criminal misdemeanor trial involving speeding in a construction zone was conducted recently completely via Zoom, and in Florida a plaintiff obtained a $411 million verdict in personal injury trial conducted entirely online. While Zoom may suffice for civil trials and misdemeanors, the process does not provide sufficient safeguards for criminal defendants charged with more serious offenses. Just the other day, New York State Chief Judge Janet DiFiore announced that civil jury trials will resume this week in New York City and that jury trials and grand jury proceedings already had resumed in other parts of the State.
With an increasing number of judges starting to grapple with how to function in this new reality, we all can expect that the legal issues surrounding juries will multiply and be winding their way through the court system for some time to come. Indeed, in the Eastern District of New York, a number of defendants recently have claimed that their constitutional rights have been violated by indictments that were returned by grand juries that were not selected from “a fair cross section of the community.” For example, in United States v. Shader, a case involving a protestor who allegedly firebombed a police vehicle, and United States v. Braxton, a case involving a felon in possession charge, the defendants questioned the propriety of indictments returned by grand juries sitting in Central Islip, a Long Island, New York suburb. According to those challenges, the grand juries in those case were likely drawn from a disproportionate number of individuals living on Long Island, where the population is less diverse than other areas within the district, including Queens, Brooklyn and Staten Island, because, at the time, a stay at home order still was in effect in those other areas. The district courts in Shaderand Braxton denied the defendants’ motions to dismiss the indictments but granted the defendants access to records related to the grand jury selection process, leaving open the possibility of renewed motions after the defendants’ inspection of the records is completed.
The issues raised by the Dangcil, Vorley, and the Eastern District of New York cases are just a few of the many potential issues implicated by empaneling grand juries and conducting in person jury trials during a pandemic. What is the impact of masks concealing the facial expression of jurors during voir dire or during the examination of witnesses? And how does a court assure impartiality with so many potential jurors able to claim legitimate exceptions for service or assure fairness in the deliberation process if jurors who agree to serve feel pressure to reach a verdict more quickly to minimize potential COVID exposure in the courtroom and jury room? The jury is still out on these issues and the protection of criminal defendants’ constitutional rights in the time of Covid.