Navigating Jury Trials During the Pandemic: Criminal Defense Section Roundtable

Find the documents mentioned in the post here: Motion to Continue due to COVID and Proposed COVID Pattern Jury Instructions.

Public defenders holding jury trials during the COVID-19 pandemic face a great number of unknowns and many issues that have no legal precedent. Under the new administration of Chief Justice Paul Newby, it seems likely that more jury trials will be calendared as individual jurisdictions have been granted more authority to set their own standards for balancing access to the courts against COVID precautions.

NCAJ’s Criminal Defense Section focused its monthly roundtable Jan. 12 on conducting jury trials during the pandemic. Featured speakers Josh Winks, assistant public defender for Carteret County; Mary Whitford, assistant public defender for Craven and Pamlico counties; and Timothy A. Henderson, assistant public defender for Buncombe County; shared their experiences with recent jury trials. Criminal Defense Section Chair Phil Dixon, defender educator at the UNC School of Government, moderated the discussion. Below is an overview of some of the main points the speakers covered.

Talk About COVID

Whitford recommended that attorneys talk with their clients before trial about the Constitutional concerns that arise from the need to wear masks. You want the client informed.

During voire dire, the prosecutor in Whitford’s case did not mention COVID. Whitford’s first question was to address the elephant in the room to get the jurors talking about it.

“People are uncomfortable. COVID is scary. You need to acknowledge it.”

Physical Environment

Winks advised that the courtroom is likely to look different than it usually does. The trial might not even be held in a courtroom but could be set in a gym or a similiarly large space. Visit the site of the trial beforehand and get familiar with the physical set-up.

Counsel might be allowed to configure furniture to further social distancing. Consider in advance what might work best for you in the space.

Take acoustics and lighting into account. One example offered by Whitford: Fluorescent lights shining on clear shields can create a reflection that makes it hard to see jurors’ faces. Take the aesthetics into consideration.

Preserve a record of courtroom conditions for appeal. Whitford and Winks took photos like these.

Masks

In Winks’ case, he believes his client’s wearing of a mask affected the jury. His client was found guilty. When speaking with the jury after the trial, members of the jury said they wish they could have seen his client’s face. In Winks’ case, he and the district attorney announced who was wearing masks and when they wore them for the record.

Raise Issues

Communities of color and older individuals have a higher risk of COVID and may be excused from jury duty. Your jury panel may look unlike a panel you would have seen prior to COVID. Identify issues of due process, equal protection and file motions to preserve them for appeal. In Buncombe County, Henderson raised a fair cross-section claim issue. In Whitford’s case, she filed a motion to continue due to COVID and sought a special jury instruction aimed at ensuring jurors did not blame the client for their need to be present in the courtroom.

NCAJ Criminal Defense Section members can access a recording of the session with the link provided on the listserv.