Can You Get A Fair Jury Trial During The Pandemic?

By Cara Bayles | August 30, 2020, 8:02 PM EDT

Jury experts worry that the elderly and people of color will avoid in-person jury duty right now, because they are more vulnerable to COVID-19. That means defendants could face a homogenous jury, one that doesn't represent a cross-section of the community. (iStock.com/LPETTET)


Soon after Colinford Mattis and Urooj Rahman were charged with making Molotov cocktails and offering at least one to a stranger on the street, their attorneys worried there was something odd about the federal grand jury that indicted them.

Though Mattis and Rahman, who are both people of color, had been arrested in May at a Black Lives Matter protest in Brooklyn, the jurors convened in the less-diverse enclave of Long Island.

"By going to Long Island, they don't have a representative sample. The population there is totally different there than it is in Brooklyn or Queens," Mattis' attorney Sabrina Shroff told Law360. "The data and the jury plan in Long Island is not the same as it is in Brooklyn."

The grand jury also indicted the pair while New York City was still under stay-at-home orders that were meant to stem the spread of COVID-19, which disproportionately affects the elderly, low-income people and people of color.

Those "unusual circumstances" may have infringed on the defendants' constitutional rights, the pair's attorneys argued, and a federal judge granted their request to review the geographic, race and age demographics of the jurors, apparently agreeing with defense attorneys' claim that their clients were entitled to "a grand jury selected from a fair cross section of the community."

Such challenges could become the norm in the coronavirus era. Courts are grappling with how to balance public health concerns with defendants' right to a timely trial by jurors who reflect their communities.

"Anyone who gets a trial that is constitutionally deficient is going to end up appealing if they're convicted," said Nina Ginsberg, president of the National Association of Criminal Defense Lawyers. "They'll have a whole other level of constitutional claims that are going to end up getting litigated."

Justice delayed is justice denied, Ginsberg said, but her group worries the justice on offer right now doesn't meet constitutional muster, especially when it comes to the right to a jury of one's peers.

Prosecutors, too, worry about in-person trials during the pandemic, according to Nancy Parr, the elected Commonwealth's Attorney for Chesapeake, Virginia, and president of the National District Attorneys Association. She worried that a quick push to start jury trials "may not be in the best interests of the victims or defendants," but recognized "the need to meet speedy trial constraints."

"Prosecutors want fair trials for defendants and victims, and that includes a large and diverse jury pool from which a neutral, unbiased jury may be selected to sit to try a criminal case in a courtroom," she said. "I would anticipate that a larger number of jurors will ask to be excused from appearing or will just not appear."

Because the elderly and people of color are more likely to be hospitalized by the virus, they may be more reluctant to serve, meaning defendants in in-person proceedings could face a homogenous jury.

"Everyone knows minority communities and low-income communities have been disproportionately affected by COVID," Ginsberg said. "Defendants have a constitutional right to be tried by juries that represent a fair cross-section of the community."

That fair cross section right dates back to the U.S. Supreme Court's 1975 Taylor v. Louisiana decision. Billy Taylor appealed his capital rape and kidnapping conviction, arguing that because his jury was drawn from an entirely male pool, he hadn't gotten a fair trial. The high court agreed, finding in its 1975 opinion that "the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial."

Protecting that right proved difficult even before the pandemic, according to Phoebe Ellsworth, a professor of law and psychology at the University of Michigan. Though gender diversity has improved, income disparities persist, in part because jury summons require a fixed address.

"In the initial pool, poor people and people who move a lot are more likely to be underrepresented," Ellsworth said.

The result has been the overrepresentation of white people and wealthy people on juries, according to Valerie Hans, a Cornell law professor and one of the nation's leading jury scholars.

"We never have had halcyon days when it comes to jury representativeness," she said. "What we're seeing now is something that's exacerbating an existing problem."

That's because the novel coronavirus disproportionately affects some of the demographic groups who are already underrepresented on juries.

Black and Latino people are more than twice as likely as their white counterparts to contract COVID-19, and more than four times as likely to end up hospitalized by the illness, according to statistics from the Centers for Disease Control and Prevention. That's likely due to associated risk factors like socioeconomic status, access to health care and increased exposure.

They're also less likely to show up for jury duty now. A June survey of 1,000 registered voters conducted by the National Center for State Courts found that 64% of Latino respondents and 58% of Black respondents said they'd report for jury duty, compared to 69% of whites.

Seniors are also less likely to respond to jury summons amid the pandemic; 74% of people under 50 said they would report for jury duty, while only 53% of those over the age of 65 would. The coronavirus hospitalization and death rate increase exponentially with age, according to the CDC — people over 65 are at least 90 times more likely to die of the disease than people aged 18-29.

The political leanings of jury pools could also be affected by the politicization of the virus. A recent Pew Research Center poll found that 37% of Republicans thought the coronavirus pandemic was "a very big problem," compared with 76% of Democrats. In a yet to be published study, the jury consultant group Dispute Dynamics polled 281 Pennsylvania residents, and found 60% of Republicans said they would show up for jury duty, compared to 45% of Democrats.

The NCSC poll found those least likely to report for jury duty during the pandemic were Black and Latina women across the age spectrum, as well as older white women. The demographic pools most likely to show up were younger white men, conservative white men, and white men without a college degree.

That homogenous jury pool is antithetical to "the idea of a jury," Hans said.

Click to view interactive version


"You want to represent different viewpoints of people in the community, because that will give you an opportunity to make sure your interpretation of the evidence is accurate," she said. "If you have a representative group discussing and debating, someone might correct misperceptions other people may have because of their limited experience."

Poor diversity can skew a jury before a case even begins, according to a nationwide Dispute Dynamics poll of 241 voters. Those who said they would show up for jury duty — a little more than half of respondents — were far more likely to disagree with the statements that juries should "send messages to corporations to improve their behavior," and that people of color were harder hit by companies making staff cuts during coronavirus.

"People who were willing to show up were more defense-oriented in their attitudes related to civil litigation," said Jill Huntley Taylor, who conducted the research. "Historically, defense-oriented civil jurors tend to be perceived as prosecution-oriented criminal jurors."

Research has shown that conservatives, men and white people are more likely "to have a more punitive approach in criminal cases" and support the death penalty, Hans said.

"If I were a [defense] attorney, I would really look carefully at my case to decide, if I get a non-representative jury pool with an over-representation of more conservative individuals, should I take the plea bargain," she said.

Courts are trying to ameliorate would-be jurors' coronavirus concerns. In June, a federal judiciary task force published recommendations for ways to reduce risks of COVID-19 transmission during jury trials and to broadcast those efforts to the jury pool.

The report covers all aspects of the trial experience: whether to send health questionnaires to potential jurors before voir dire, where to place courtroom microphones, even how to have jurors take their lunch breaks. The report suggests that courts showcase those precautions as well. It recommends sending informational fliers sent along with summons, and posting a video safety statement from the chief judge on court websites.

The report is meant to "provide some hopefully helpful guidance to courts around the country," according to Michael Seabright, chief judge of the District of Hawaii and one of 10 jurists on the task force that compiled the recommendations.

A map of a Hawaii federal courtroom shows where jurors, attorneys and U.S. marshals will sit in to maintain social distancing. (Click for larger version)

In his own district, Judge Seabright convened a committee of prosecutors, public defenders and court officials back in May. They compiled a 38-page draft plan that details where jurors will sit in the gallery, how evidence will be displayed on iPads, the staging of witnesses and the attorneys questioning them, and the timetable for sending out jury summons, questionnaires and granting excusals to people who are especially vulnerable to the coronavirus.

The district not only offered up the plan for public comment, but also convened a mock trial to see how well it worked.

The hope, said Judge Seabright, is that potential jurors see the precautions the court plans to take once the transmission rate in Hawaii eases, he said.

"We recognize there's a level of anxiety that's well-founded and people deserve to know what we will do to protect their health when they come to court," Judge Seabright said. "I hope it makes more people more comfortable and willing to serve."

Potential jurors are comforted by such measures, according to the NCSC poll. More than two-thirds of respondents said they would feel more comfortable if jurors were tested for coronavirus, maintained six feet of distance and wore masks during trial.

Paula Hannaford-Agor, director of the NCSC's Center for Jury Studies, said that might ease the pandemic's disproportionate effects.

"People who are at high risk — the elderly, people with underlying health conditions, and racial and ethnic minorities — were by and large less comfortable coming in for jury service. But that is not to say they wouldn't come," she said. "One of the rare glimpses of good news was if appropriate health measures were in place, most people said that if they were summoned, they would be willing to appear."

"They might not be happy about it," she said, "but they would be willing to appear."

Some courts are also experimenting with online trials, which eliminate concerns about coronavirus transmission.

Earlier this month, a state court in Texas convened the nation's first binding, online criminal jury trial — over a speeding ticket in a construction zone.

The potential jurors were told they were making history, but they seemed underwhelmed and informal in their virtual setting. One woman's kitten pawed at the window curtain behind her. Another potential juror had chosen a photo of a Texas longhorn as his backdrop.

Travis County Justice of the Peace Nicholas Chu told them that their jury duty was "a little different than what we're used to."

The format could prove an equalizing force for jurors who are too afraid or vulnerable to attend jury duty. In the NCSC poll, 44% of participants said they would prefer to attend jury service remotely — twice as many as those who said they preferred an in-person trial.

But remote jury service can exclude groups who don't have good internet service or the technical knowhow to use Zoom. According to the NCSC poll, 15% of respondents didn't have an internet connection at home, and 14% didn't own a smartphone, though the study noted that only 2% lacked both.

To ensure equal access, the Texas court offered Wi-Fi-enabled iPads to any potential juror who didn't own the technology necessary to tune in.

But that doesn't break down all the barriers to accessibility, Ginsberg said. A juror's unfamiliarity with Zoom or touch-screen technology could distract from the proceedings.

"If I were charged with a criminal offense, I certainly wouldn't want to be tried by people who aren't comfortable with the iPad they're looking at," she said. "It's a problem the user's going to have, and a problem the lawyer has in assessing how the evidence is impacting the juror."

While experts agree that there's no easy solution, Ellsworth said that the problems with a virtual jury or an in-person pool drawn in the coronavirus era aren't necessarily any worse than what existed before.

Elderly people may not be willing to serve as much now, but they were overrepresented on juries before, she said. And some of the people who might skew the pool because they're less afraid of the virus could take themselves out of consideration if they refuse to wear a mask indoors, she said.

"I think we haven't got the slightest idea what kinds of differences this will make in terms of representativeness. It could cut either way," Ellsworth said. "I think it's premature to say that the old way was just and fair and the new way is going to destroy everything."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Rebecca Flanagan.

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