The jury trial is just one of the many aspects of American life that has been upended by the COVID-19 pandemic. On March 12, 2020, the US District Court for the District of Massachusetts entered an order postponing all jury trials. The next day, the Massachusetts Supreme Judicial Court issued a similar order with the same effect. Both courts extended these orders during the months that followed.
Last week, Massachusetts federal and state courts announced plans to gradually resume jury trials in the Commonwealth notwithstanding the ongoing public health crisis. This alert summarizes those plans.
The US District Court for the District of Massachusetts’ Plan for the Resumption of Jury Trials in Federal Court
On September 16, 2020, Chief Judge F. Dennis Saylor IV provided a public update on the planned resumption of jury trials in the US District Court for the District of Massachusetts (the Court) during the COVID-19 pandemic. After an approximately six-month hiatus, single-defendant criminal jury trials are expected to resume on September 29, 2020, in Boston and on October 5, 2020, in Worcester and Springfield.
The Court developed its plans in consultation with epidemiologists from Tufts Medical Center and seeks to balance access to fair jury trials with the preservation of public health as best as possible, but multiple substantial issues remain unresolved.
The Scheduling of Jury Trials
Rather than continuing the historic practice of district judges managing the trial schedule for their individual dockets, the scheduling of all jury trials in the District of Massachusetts will be centrally coordinated. Single-defendant criminal jury trials will proceed first, and older cases where the defendant is in detention will receive priority. The hope is that with the benefit of experience, the Court may begin to try cases with two defendants—and civil trials—in early 2021.
Courtroom Limitations and Logistics
The scheduling of jury trials is constrained by the availability of courtroom space that can accommodate both the inherent logistics of a jury trial and safe social distancing. To mitigate the risk of virus spread, the Tufts epidemiologists have advised that courtrooms should be limited to no more than one person per 100 square feet. Consequently, no more than 24 people can safely occupy even the largest existing courtroom in the District of Massachusetts, and only six courtrooms have the square footage necessary to reasonably stage a jury trial. Of these six, only four are available for jury trials, as one is not configured for trial and one is reserved for magistrate judges.
In the eligible courtrooms, furniture is being reconfigured and plexiglass is being installed around the witness box and between counsel tables. Additional courtrooms will likely be used to accommodate juror breaks and deliberations, attorney staging, and public overflow. In addition to the physical reconfiguring of the courtrooms and the strict enforcement of social distancing, mask wearing will be required for all with the sole exception of when a witness is testifying, strict cleaning protocols will be implemented, and new headset systems will be used to facilitate private sidebar conferences and attorney-client communications from a safe distance.
To address the Court’s capacity limitations, efforts are underway to find secure alternative locations that could potentially accommodate larger and more complex jury trials, including complex civil trials. Specifically, the Court is considering utilizing Hanscom Air Force Base and the John W. McCormack Post Office and Courthouse building as alternative jury trial locations.
Chief Judge Saylor acknowledged that while the empanelment of juries that represent a fair cross section of the community is essential to the fair administration of justice, doing so will be uniquely difficult during the pendency of the COVID-19 pandemic. To address this challenge, the Court sent 3,200 jury summonses this summer. These prospective jurors also received a letter from Chief Judge Saylor explaining why the Court believes it is necessary to resume jury trials during the COVID-19 pandemic and the efforts made by the Court to “conduct a trial while providing a reasonable degree of safety to everyone concerned.” Prospective jurors were also sent a Supplemental Questionnaire asking about a prospective juror’s potential comorbidities or heightened risks related to COVID-19 infection. While none of the answers to these questions will trigger an automatic exclusion, all responses will be screened by a judicial officer prior to the juror’s date of service. Finally, all prospective jurors will be asked to fill out a Health Screening Questionnaire prior to their date of service and before each day of trial, attesting to their health and potential COVID-19 exposure. The Court has attempted to ameliorate the impact of the virus on the composition of the jury pool by sending a large number of summonses and by carefully monitoring the responses to the Supplemental and Health Screening questionnaires.
Chief Judge Saylor acknowledged that multiple significant issues remain unresolved. For example, logistical and spatial constraints will prevent the Court from holding jury trials with multiple defendants. In addition, it has not been decided what will be done if a juror reports being sick or having been exposed to the virus in the middle of trial. This raises multiple issues that implicate juror privacy and the safety of all those involved, such as what to tell other jurors; what, if any, information the Court can compel a juror to disclose; whether the Court can encourage everybody involved to get tested, and if so, who would pay for the test? Other issues the Court anticipates will need to be addressed as they arise are what to do if a lawyer or witness becomes sick or exposed to the virus; how to accommodate out-of-state lawyers and witnesses who, though Chief Judge Saylor indicated they are likely not subject to Massachusetts’s COVID-19 Travel Order as essential “workers supporting the operations of the judicial system,” may need to quarantine upon arrival; how to accommodate those who may not feel comfortable proceeding to a jury trial; and how to ensure appropriate public access to jury trials via Zoom while also ensuring that sequestered witnesses do not watch the livestream prior to their testimony.
Overall, the defining feature of the Court’s plan, as is the case with so much during the COVID-19 pandemic, is the need to remain flexible. Even with thoughtful planning, a commitment to science and adherence to safety protocols, everything is subject to change. Those wishing to have their case heard before a jury in the District of Massachusetts must accept that plans can change and that it will take the Court time and experience to develop a safe, efficient and fair process for the resumption of complex criminal and civil jury trials during the COVID-19 pandemic.
The Supreme Judicial Court’s Plan for the Resumption of Jury Trials in Massachusetts State Court
On September 17, 2020, the Supreme Judicial Court (SJC) issued a new order setting forth its three-phase plan for the resumption of jury trials in Massachusetts state courts during the COVID-19 pandemic. While gradually resuming jury trials, Massachusetts state courts will continue to conduct the majority of their operations virtually and will remain open to the public for limited purposes—for example, to participate in certain in-person proceedings that cannot be held virtually for practical or constitutional reasons, to conduct business with a clerk or register, or to meet with the probation office.
Phase 1 is expected to begin no earlier than October 23, 2020, with the empanelment of a “limited number” of six-person juries in “a select number of locations, with no more than one trial at a time conducted in each location, and with specified limitations on the number of peremptory challenges.” The Phase 1 cases to be tried and the location of those trials will be determined by the Chief Justice of the applicable Trial Court department in consultation with the Chief Justice of the Trial Court. Depending on the success of Phase 1, Phase 2 is expected to commence in February 2021 with the empanelment of 12-person juries. In accordance with the report and recommendations of the Massachusetts Jury Management Advisory Committee, the Phase 2 jury trials are to be for matters of “highest priority, including serious criminal cases, youthful offender cases, and civil cases of particular significance.” Finally, and at an undetermined time, the courts will enter Phase 3, wherein all Massachusetts state courts are approved for jury trials. Each phase will last at least two months to ensure there is sufficient time to evaluate whether any juror has contracted the virus during their service before proceeding to the next phase. In addition, specific safety precautions will be enforced during each phase to reduce the risk of COVID-19 transmission, including health screenings, social distancing, universal mask wearing, frequent cleaning and increased air ventilation.
As with the plan in the District of Massachusetts, potential litigants must remain prepared for change with little notice as the SJC’s order states that “all plans and expectations regarding the resumption of jury trials may be adjusted if there is a significant change in the rate of COVID-19 transmission in the Commonwealth.”
WilmerHale trial attorneys have extensive experience in Massachusetts’ state and federal courts and will be closely monitoring the implementation of these plans. If you have any questions or are seeking guidance related to state or federal court practice in Massachusetts, please reach out to the authors of this alert or any of your contacts at WilmerHale.