COVID continues to hinder courts: A lack of willing jurors delays Hartford’s first, post-pandemic criminal jury trial
A federal judge postponed what was to have been the state’s first, post-COVID-19, criminal trial when it became clear Wednesday that the court could not find enough jurors willing to sit in court and hear the evidence at a time when the viral infection rate is again trending up.
The decision by Judge Vanessa L. Bryant, in a case scheduled for trial in Hartford later in November, was a setback for the federal district court in Connecticut, where the judges have worked for months with virologists, air circulation experts, information technology consultants and others to configure a courtroom that could keep participants in a jury trial safe.
Since the coronavirus arrived late last winter, case backlogs are growing in courts everywhere, including Connecticut’s federal and state courts, while administrators work with experts to suppress the risk of contagion in often crowded and confining courtrooms. In a growing number of cases, lawyers are arguing that incarcerated clients are being denied constitutional rights to speedy trials.
Some business has resumed in federal and state courts — either in person, through video conferencing or a combination of the two. But the greatest challenge — and one that remains unmet — is the resumption of criminal jury trials, which can involve large numbers of people confined in relatively small rooms for extended periods. Criminal juries, just one component of trials, can consist of as many as 12 members and four alternates chosen from panels of prospective jurors numbering in the hundreds.
Bryant made it clear in court Wednesday that she was reluctantly postponing a trial that is doubly distasteful to prospective jurors. In addition to jurors being asked to serve during an uptick in the infection rate, the case involves allegations of child sexual exploitation and production of child pornography. Prospective jurors were warned of disturbing, photographic evidence.
Under privacy rules, Bryant sealed two questionnaires prospective jurors completed about health concerns and the nature of the alleged crimes. But she said in court Wednesday that the difficulty in seating jurors turned on health issues, specifically “the unwillingness or unsuitability of individuals to serve during the pandemic.”
Normally, prospective jurors are asked to complete questionnaires in court after receiving summonses for jury duty. Most are excused after in-person interviews by the prosecution and defense; 12 jurors and up to four alternates are seated.
Because of the pandemic, the federal courts have decided to mail both the summonses and questionnaires with instructions to return them to the court. In Bryant’s case, the packages were mailed to 150 prospective jurors. She said an unusually high percentage — 72 prospective jurors — failed to respond at all. She said more that 50 were excused for reasons such as health concerns.
In an attempt to increase the pool of juror candidates, Bryant took the unusual step of urging those who had not responded to do so by recording a voice message and having it delivered to the telephones of all those who received a summons. It said in part:
“Without your participation, the judicial branch cannot function. The lives of individuals charged with a criminal offense are suspended while they await their constitutionally protected right to a speedy jury trial. The judiciary is concerned for your safety. We have implemented CDC recommended social distancing for our mutual protection.”
The automated voice mail generated some response, Bryant said in court, but not enough.
On Wednesday morning, the pool of prospective jurors totaled only 19 — not enough to seat a 12-person jury and one alternate if the defense and prosecution exercised their rights to peremptorily disqualify a total of 16 candidates. Bryant asked the defense and prosecution whether they would be willing to waive their peremptory challenges or agree to a trial by judge, rather than a jury. Defense lawyer Todd Allen Bussert declined on both counts after conferring with his client.
Bryant’s trial was to be the first of several federal criminal jury trials scheduled for November and December in Hartford, New Haven and Bridgeport — several involving defendants who have been held in jail for extended periods. All have now been delayed, according to court officials, in some cases out of concern by the court’s consulting virologist about the upward trend in infections.
Connecticut Chief Justice Richard Robinson announced in September that the state judiciary hoped to resume criminal jury trials this month. But the state Judicial Branch said this week it is unable to meet the target, even after developing plans to increase public safety and minimize viral spread.
“While our goal has been to resume jury trials on Monday, November 2nd, the recent increase in positive test results statewide has caused us to pause the process so we may continue to reassess what we can safely do under these challenging circumstances,” a branch spokeswoman said. “Accordingly, the plan to have jurors report for jury selection on Nov. 2, 2020 will be delayed and reassessed on a weekly basis.”
State judges have not made public details of plans for mitigating contagion and resuming trials — although lawyers report having seen shipments of construction materials in at least one court house.
Federal judges have been more forthcoming. They said there is one Hartford courtroom now ready for criminal juries and two more are being prepared. Courtrooms also are ready in Bridgeport and New Haven.
In the Hartford federal courthouse, the air circulation system in the prepared courtroom has been revamped and, on the advice of the court’s consulting virologist, is capable of exchanging all the air in the room six times an hour. The courtroom design has been reconfigured. Jurors will be divided into two smaller groups — on either side of the judge. The witness box has been moved to the center of the well of the courtroom — in front of the judge’s bench. Work stations are shielded by plexiglass.
Only about dozen members of the public will be seated on the benches at the rear of the courtroom. If additional members of the public wish to attend, they will view trials by closed circuit television elsewhere in the courthouse.
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