Photo by weiss_paarz_photos on Flickr
Kassidy Michel, Associate Member, University of Cincinnati Law Review
I. Introduction
The COVID-19 Pandemic has wreaked havoc across the world. Not only has the Pandemic created a public health crisis, killing 212,485 people in the United States alone, but it has also been the reason for countless other economic and personal crises. [1] People have lost their jobs[2], businesses are suffering, some businesses have closed permanently[3], there is an upsurge in domestic violence[4], the rate of food insecurity has doubled in houses with children because schools are closed[5], mental health has disproportionately worsened[6], and personal lives have been devastated. In the legal profession, COVID-19 has not only suspended jury trials, but has also changed the way jury trials are conducted. This article will specifically discuss the impact that COVID-19 has had on jury trials in Hamilton County, Ohio State and Federal Courts. Part II gives an overview of jury trials in general and in Hamilton County. Part III discusses jury trials starting again in federal court, with information from a personal interview with Magistrate Judge Stephanie Bowman from the United States District Court for the Southern District of Ohio. Part IV discusses jury trials starting again in state court, with information from a phone interview with Judge Charles Kubicki, Jr., the Presiding and Administrative Judge for the Hamilton County Common Pleas Court. Part V and VI discuss the importance of jury trials and what further steps the courts could take to ensure optimal safety and continuation of jury trials during the pandemic.
II. Jury Trials in Hamilton County
The right to a jury trial is a fundamental right listed in the United States Constitution in Article III and expanded upon in the Sixth and Seventh Amendments.[7] The Sixth Amendment provides that all criminal trials should enjoy the right to a speedy and public trial in front of an impartial jury if they choose.[8] The Seventh Amendment expands that same right of an impartial jury trial in civil lawsuits to all citizens.[9] Although a majority of civil cases settle before going to trial and a majority of criminal cases take a plea deal before going to trial, jury trials are an extraordinarily important part of our legal system that are necessary to allow every defendant their right to justice.[10]
When COVID-19 first made headway in Hamilton County, Judge Charles Kubicki Jr. of the Hamilton County Common Pleas Court and Judge Heather Russell of the Hamilton County Municipal Court issued an order on March 16, 2020 suspending jury trials for 30 days for civil and criminal court cases, after a similar imposition was enforced on March 13, 2020 in federal courts in Cincinnati.[11] These actions sparked significant backlash. Suspending jury trials takes away someone’s constitutional right to a speedy and fair trial and causes great backlogs in the system – not to mention that people’s lives or freedom are at stake in many criminal cases. Due to the sensitive nature of suspending jury trials, Ohio Attorney General Dave Yost wrote an opinion discussing the Constitutionality of allowing courts to suspend jury trials to prevent the spread of the pandemic. Attorney General Dave Yost concluded that suspending jury trials is consistent with state and federal speedy-trial obligations.[12]
The continued delays of trial by jury have caused hundreds of cases on top of dozens of jury trials to be delayed in the Hamilton County Court Systems.[13] The last time the courts across the country halted operations was during the 1918 Spanish flu epidemic, more than one hundred years ago.[14] Although times are very different than they were during the Spanish flu crises, in terms of technology and progressive strides in the court systems, the COVID-19 pandemic has brought on many unprecedented challenges that the courts have had to work through to try and get the systems back up and running to full capacity.
III. Federal Court Jury Trials[15]
The federal courts in Hamilton County have yet to resume jury trials since they shut down operations on March 13. Major cases have been put on hold, including the opioid trials, due to the novel COVID-19 pandemic.[16] After the courts shut down in March, Chief Judge Algenon Marbley created a pandemic team to assess the fluid situation of the pandemic in relation to the courts. The pandemic team meets weekly and reviews the trends and matrices in order to make recommendations to the Judges on whether or not the court should resume trials. The Judges are the ultimate decision makers.
Jury trials have not yet resumed in federal courts, but the courts have been working to create a safe, socially distanced environment for jury trials to take place. In August, the court ordered plexiglass to be installed in two court rooms. The plexiglass surrounds each jury, the judge, the witness, the court recorder, council, and the podium where council stands to present. Not only do the court rooms have plexiglass, but typical social distance guidelines are in place at the courthouse, including mandatory masks.
While civil jury trials are discontinued until after November 1, 2020, criminal jury trials were set to resume on October 1, 2020.[17] Although criminal jury trials did not immediately resume on October 1, the court held a mock jury trial walk through on Thursday, October 16, 2020 in order to ensure the courtrooms were equipped with the necessary equipment to create the safest environment possible for all people involved in a jury trial. Although the mock jury trial went well, there has been another spike in COVID-19, so jury trials will probably not resume in November or December.[18] Once jury trials resume, jurors will have an automatic excuse that will be granted in case they feel uncomfortable due to COVID-19. While there is a concern that potential jurors will misuse that excuse, safety is at the utmost concern and it is imperative that people feel safe coming into the courthouse.
Cases typically settle or there is a plea deal. The federal court has continued proceedings on video conferencing, except for sentencing, unless the defendant consents to have their sentencing done over video because statute requires sentencings to be done in person. Since proceedings continued on video, the court has not seen as big of a backlog in cases as expected. According to Judge Bowman, the backlog will probably occur once the jury trials begin again.[19] There are only two courtrooms equipped for social distancing, so the major problem will arise when seven judges are trying to schedule their trials in two courtrooms. Judge Bowman also believes that COVID-19 will have an impact on jury trials, and trials in general, in the future.[20] COVID-19 has shown lawyers that it is possible to move work online, specifically depositions. If more depositions occur on video calls, there will not be as much of a need to travel as often and the cost of litigation may decrease, freeing up funds to go to trial, according to Judge Bowman.[21]
IV. State Court Jury Trials[22]
From the first suspension of jury trials in Hamilton County on March 16, 2020, there were several attempts to start jury trials back up, but they were ultimately suspended again. Jury trials were first set to begin again on Monday, July 20, 2020, with many precautions in place, such as mandatory face masks and plexiglass separators, but the court decided to suspend jury trials again on July 15, 2020.[23] According to Judge Kubicki, the reason behind suspending jury trials further, but allowing other court operations to continue, was because jury trials require many people in the same room, including jurors, staff, attorneys, and witnesses.[24] This reasoning was based off of Ohio Governor Mike DeWine’s and the Health Director’s assessment of Hamilton County moving from the red zone to the purple zone for COVID-19.[25]
After more than four months without jury trials, they began again on August 3, 2020, with health at the forefront of importance.[26] The precautions Hamilton County were taking allowed the court to proceed with trials in as normal a fashion as we now know with socially distanced guidelines and mandatory masks. The court took three visiting judge rooms, which are larger than other courtrooms in the building, and built out plexiglass in all necessary spots. The juror box has plexiglass between each juror in the back row, and the front row was moved in front of the rail of the jury box with plexiglass between each juror seat. Each of the rooms has a special place for alternates and other jurors to sit. There is also plexiglass around the court recorder, the judge, and where attorneys ask questions. There is not plexiglass around the witness stand, however, because it is on the other side of the room and is spaced far enough away to not require plexiglass according to the health director.
Before the pandemic, the court used to bring in hundreds of jurors and choose among them randomly through a software. Now, the software randomly chooses jurors to bring in only on the day of the trial.
Because jury trials were suspended for so long, there is a backlog of cases. Statistically, most criminal cases take a plea bargain and most civil cases settle. However, when the option of a jury trial is taken away, parties are less likely to resolve their disputes even if they would have settled or taken a plea if not for COVID impacts, according to Judge Kubicki.[27] In order to organize the cases going to trial, the court came up with a points system for priority of cases. Basically, particularly in criminal cases, the person who has been in prison the longest with the most serious charges has priority of going first.
Defense attorneys have had some of the most concerns about starting jury trials again, according to Judge Kubicki.[28] Defense attorneys represent clients, many of whom are in jail, where there have been numerous cases of COVID-19. While the defense attorneys strive to zealously represent their clients, many are concerned with exposure. Although there are concerns about starting jury trials again, Judge Kubicki said jury trials are going well with the necessary health precautions in place.[29] The goal of the court is to minister justice while taking into account the health and safety of all people involved and limit exposure of COVID-19. It has been made clear to all perspective jurors and parties that health is the highest priority. Because of the success Hamilton County has had in beginning jury trials during the pandemic, many courts have called Hamilton County for tips, including the federal courts in Ohio and California courts.
Unfortunately, due to another spike in COVID-19, Hamilton County courts once again suspended jury trials on Friday, October 23, 2020.[30]
V. Necessity of Jury Trials
Courts are a fundamental necessity in our society. Although the economy and society have suffered greatly due to the impacts from COVID-19, closing courts is consequential in the greatest sense. There are available alternatives to jury trials, such as bench trials, mediations, arbitrations, and plea deals. However, the Constitution guarantees every person due process and a fair trial by jury if they so choose. People prefer to bring some cases to trial in hopes of a more favorable outcome. Without the option to have a jury trial, many people may be less motivated to resolve the case because their ability to seek justice has been taken away from them.[31]
As almost every other aspect of our lives has changed due to COVID-19, if jury trials begin anytime soon, those, too, will have a different look to them. Hamilton County began jury trials in August in three separate rooms that are usually used for visiting judges and will be sanitized after each case.[32] Many courts will have the same makeup for jury trials as the courts in Hamilton County. Face masks and temperature checks will be mandatory each day of the trial to ensure everyone is healthy and without a fever. Although face masks will be required for everyone, when witnesses are testifying, they will not wear a mask.[33] There will probably be a “maze of plexiglass” between everyone in the room, including between the judge and the room, between opposing counsel, between each juror in the juror box, between the witness stand and the room, etc.[34] There will also be limited spectators allowed at the trial.[35]
The process for choosing potential jurors for jury trials will also probably look different. Those individuals who are in the high-risk category for contracting COVID-19, whether that means they are older or have a pre-existing condition, will probably be able to defer participation in the jury trial.[36] Typically jurors are packed into the court room in a group and asked questions by the defense and prosecution. However, in a COVID-19 jury trial, the potential jury pool will probably have to be broken into smaller groups, socially distanced, and asked questions that way.[37] Jurors may even be selected during virtual questioning, or there will be more questioning done in writing beforehand.
VI. Conclusion
Although Hamilton County has started jury trials again, there is always a possibility of another outbreak in the county. Could the courts start to utilize the growing technology that many businesses and classrooms are utilizing to continue their businesses and education? The biggest issue with using platforms such as Zoom, WebEx, Microsoft Teams, or Skype for jury trials are privacy concerns and logistics.[38] What about hackers? Would jurors be able to join a juror room and be confined to it? If jurors could be confined to a juror room, would that room be confidential and private, like the jurors’ experience in a normal in-person jury trial? What about jurors’ at-home situations? There are many concerns with utilizing video technology for such an important part of the judicial system that requires many moving pieces and a large number of participants. For now, plexiglass may be enough to allow courts to conduct jury trials again. However, with numbers rising again in Hamilton County, and across the entire state of Ohio, courts will have a difficult decision in terms of keeping courts open.[39]
[1] See COVID-19 Dashboard by the Center for Systems Science and Engineering at Johns Hopkins University, https://coronavirus.jhu.edu/map.html (last visited Oct. 8, 2020).
[2] See Eric Morath, How Many U.S. Workers Have Lost Jobs During Coronavirus Pandemic? There Are Several Ways to Count, THE WALL STREET JOURNAL (June 3, 2020, 5:30 AM),https://www.wsj.com/articles/how-many-u-s-workers-have-lost-jobs-during-coronavirus-pandemic-there-are-several-ways-to-count-11591176601.
[3] See Lauren Bauer, Kristen E. Broady, Wendy Edelberg, and Jimmy O’Donnell, Ten Facts About COVID-19 and the U.S. Economy, BROOKINGS (Sept. 17, 2020),https://www.brookings.edu/research/ten-facts-about-covid-19-and-the-u-s-economy/.
[4] See Amanda Taub, A New Covid-19 Crisis: Domestic Abuse Rises Worldwide, THE NEW YORK TIMES (Apr. 14, 2020),https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html.
[5] See supra note 3.
[6] See Mental Health, Substance Use, and Suicidal Ideation During the COVID-19 Pandemic – United States, June 24 – 30, 2020, CDC (Aug. 14, 2020),https://www.cdc.gov/mmwr/volumes/69/wr/mm6932a1.htm.
[7] U.S. CONST. art. III; See also U.S. CONST. amend. VI; See also U.S. CONST. amend. VII.
[8] U.S. CONST. amend. VI.
[9] U.S. CONST. amend. VII.
[10] See Jonathan D. Glater, Study Finds Settling Is Better Than Going to Trial, THE NEW YORK TIMES (Aug. 7, 2008),https://www.nytimes.com/2008/08/08/business/08law.html; See also Innocence Staff, Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, INNOCENCE PROJECT (Aug. 7, 2018), https://www.innocenceproject.org/guilty-pleas-on-the-rise-criminal-trials-on-the-decline/.
[11] Barrett J. Brunsman and Chris Wetterich, Hamilton County Suspends Court Cases Because of Coronavirus, CINCINNATI BUSINESS COURIER (Mar. 14, 2020, 2:36 PM),https://www.bizjournals.com/cincinnati/news/2020/03/14/hamilton-county-suspends-court-cases-because-of.html.
[12] Opinion from Dave Yost, Att’y Gen., Ohio,(Mar. 18, 2020), https://sc.ohio.gov/coronavirus/resources/2020-002OHAG.pdf.
[13] Andrea Medina, Socially Distanced Jury Trials to Resume Monday in Hamilton County, FOX19 NOW (July 20, 2020, 10:59 PM), https://www.fox19.com/2020/07/30/socially-distanced-jury-trials-resume-monday-hamilton-county/.
[14] Melissa Chan, ‘It Will Have Effects for Months and Years.’ From Jury Duty to Trials, Coronavirus Is Wreaking Havoc on Courts, TIME (Mar. 16, 2020, 4:44 PM),https://time.com/5803037/coronavirus-courts-jury-duty/.
[15] Telephone Interview with Stephanie K. Bowman, Magistrate Judge, United States District Court for the Southern District of Ohio (Oct. 13, 2020).
[16] Amanda Bronstad, Opioid Trials in W.Va., Ohio Placed on Hold Due to COVID-19 Pandemic, LAW.COM (Oct. 9, 2020, 4:15 PM),https://www.law.com/2020/10/09/opioid-trials-in-w-va-ohio-placed-on-hold-due-to-covid-19-pandemic/.
[17] Further Order Regarding Court Operations Under The Ongoing Exigent Circumstances Created By Covid-19, General Order 20-27 (Sept. 29, 2020), https://www.ohsd.uscourts.gov/sites/ohsd/files//General%20Order%2020-27.pdf.
[18] See Bowman, supra note 15.
[19] See Bowman, supra note 15.
[20] Id.
[21] Id.
[22] Telephone Interview with Charles J. Kubicki Jr., Common Pleas Judge, Hamilton County, Ohio Courts (Oct. 13, 2020).
[23] Angenette Levy, Hamilton County Suspends Jury Trials; 1,021 COVID-19 Cases Added Over the Last Week, LOCAL12 (July 15, 2020),https://local12.com/news/local/hamilton-county-suspends-jury-trials-1021-covid-19-cases-added-over-the-last-week-cincinnati; See also Kim Schupp, Jury Trials Not Resuming in Hamilton County Due to COVID-19 Spike, Judge Says, FOX19 NOW (July 15, 2020, 6:46 PM),https://www.fox19.com/2020/07/15/watch-live-hamilton-co-discuss-court-operations-jury-trials/.
[24] See Kevin Grasha, ‘It Just Can’t Happen Safely.’ No Jury Trials in Hamilton County After COVID-19 Surge, CINCINNATI ENQUIRER (July 15, 2020),https://www.cincinnati.com/story/news/2020/07/15/no-jury-trials-hamilton-county-after-covid-19-surge/5442115002/.
[25] WCPO Staff, Ohio’s New COVID-19 Map, WCPO CINCINNATI (July 23, 2020, 4:21 PM), https://www.wcpo.com/news/coronavirus/live-dewine-updates-ohios-covid-19-heat-map.
[26] See Kevin Grasha, Jury Trials to Resume in Hamilton County Beginning Monday, CINCINNATI ENQUIRER (July 29, 2020, 3:59 PM),https://www.cincinnati.com/story/news/2020/07/29/jury-trials-resume-hamilton-county-beginning-monday/5538434002/.
[27] See Bowman, supra note 15.
[28] Id.
[29] Id.
[30] Kevin Grasha, Jury Trials Suspended Once Again in Hamilton County Because of COVID-19, CINCINNATI ENQUIRER (Oct. 3, 2020, 4:10 PM), https://www.cincinnati.com/story/news/2020/10/23/coronavirus-jury-trials-suspended-again-hamilton-county/6009346002/.
[31] Id.
[32] Kevin Grasha, Here’s What Jury Trials Look Like in Hamilton County Amid the Coronavirus Pandemic, CINCINNATI ENQUIRER (Aug. 31, 2020, 9:51 AM),https://www.cincinnati.com/story/news/2020/08/31/heres-what-jury-trials-look-like-hamilton-county-amid-covid-19/5655337002/.
[33] Id.
[34] See Katie Mettler, Sanitizer, Face Shields and a Plexiglass Maze: What Jury Trials Look Like in a Pandemic, THE WASHINGTON POST (Sept. 18, 2020, 11:40 AM),https://www.washingtonpost.com/local/legal-issues/sanitizer-face-shields-and-a-plexiglass-maze-what-jury-trials-look-like-in-a-pandemic/2020/09/18/0ed75970-f8fc-11ea-89e3-4b9efa36dc64_story.html.
[35] See supra note 23.
[36] See supra note 25.
[37] Id.
[38] See Justin Sarno and Jayme Long, Social Distancing and Right to Jury Trial Must be Reconciled, LAW360 (Apr. 12, 2020, 8:02 PM),https://www.law360.com/articles/1261476/social-distancing-and-right-to-jury-trial-must-be-reconciled.
[39] See Ohio Reports Highest Single-Day Increase of COVID-19 Cases: 2,366 New Cases, 66 Deaths, CINCINNATI ENQUIRER (Oct. 21, 2020, 2:40 PM),https://www.cincinnati.com/story/news/2020/10/21/coronavirus-ohio-reports-2366-new-cases-66-deaths-wednesday/6004046002/.
