Analysis

Outside Pa.'s Big Cities, A Look At Trial Work In The Pandemic

By Matt Fair
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Law360 (June 26, 2020, 10:35 PM EDT) -- While judges in Pennsylvania's legal epicenters of Philadelphia and Pittsburgh eye the fall for a potential return to jury trials after courts were largely closed in March due to the coronavirus pandemic, a handful of smaller counties are providing a blueprint of sorts after trying cases this month with a slew of new safety measures.

From meticulously measured and marked-off seating for jurors in courtroom galleries to witness boxes enclosed in Plexiglas, the criminal trials held in at least four Pennsylvania county court systems in the last two weeks offer a preview of the changes in store for the rest of the state as in-court proceedings slowly resume after a three-month hiatus.

"Jury trials are the backbone of our criminal justice system," said President Judge Thomas Parisi of the Berks County Court of Common Pleas in Reading, where four trials have been held since June 15. "You have people who have been waiting in jail to have their jury trial, you have victims who have been waiting, and we felt we could do it safely."

In addition to Berks County, judges in Mercer County, located along Pennsylvania's western edge about halfway between Pittsburgh and Erie; Schuylkill County, located in the state's coal region to the north and west of Reading and Allentown; and the combined judicial district encompassing Juniata and Perry counties, to the northwest of Harrisburg, have started conducting jury trials in criminal cases over the last two weeks.

"We've had a lot of cases backing up," said President Judge William Baldwin of the Schuylkill County Court of Common Pleas, where about eight criminal trials have been held since June 15. "We just needed to get some cases moving, otherwise we'll never get out from under them."

While officials in Berks, Mercer and Schuylkill counties say they've been able to safely bring criminal matters in front of juries again, the question becomes more complicated in the state's two biggest cities, where the courts are used to dealing with a much higher volume of cases.

"There's only a small number of our total cases that go to trial, but it's not an insignificant number," said President Judge Kim Berkeley Clark of the Allegheny County Court of Common Pleas in Pittsburgh. "You want people to feel safe and be willing to serve with as little stress as possible — every defendant deserves that and every victim of a crime deserves that."

And even as she expressed confidence that the court could move forward safely with jury trials, Judge Clark said it would likely prove challenging to find willing participants.

"I think we could probably select jurors and conduct a trial in a way that's safe, but there's still a big question about the public's willingness to come in," she said.

In counties where jury trials have started back up, officials said they've been moving slowly and deliberately.

Rather than picking multiple juries from a single large pool as is the usual procedure in Schuylkill County, Judge Baldwin said the court was calling in panels of only 50 prospective jurors to conduct voir dire one case at a time while maintaining adequate social distance.

Judge Parisi said that panels of prospective jurors in Berks County were being called into a large auditorium in the courthouse, instead of the usual jury assembly room, while attorneys and judges conducted selection from tables set up on the stage.

Given the limited number of large courtrooms in both the Berks County and Schuylkill County courthouses, the number of trials that are able to take place simultaneously is limited.

And where some county courthouses don't have large enough rooms to space out prospective jurors, officials have been forced to get creative.

"It just so happens we have a movie theater across the street from the courthouse, so we're going to handle our jury selection in there," said Don Powers, the district court administrator for Clinton County in north-central Pennsylvania, where jury trials are scheduled to resume July 10.

Rather than seating them in the jury box, officials said that jurors in both Berks and Schuylkill counties have been moved into the courtroom gallery, where they can be seated an adequate distance apart.

Judge Parisi said he saw to it personally that seats for jurors in his courtroom were measured and marked off with tape.

"I was the one with the tape measure," he said. "I tend to be a little more hands-on that way."

Judge Baldwin said that in Schuylkill County, court staff opted to enclose witness boxes in Plexiglas in order to allow individuals providing testimony to take off their face masks.

"It factors into credibility being able to see their facial expressions," Judge Baldwin said.

Otherwise, he said masking requirements in the courthouse were being strictly enforced.

"Even for the judge," he said. "It's a real pain but, you know, the mask, for the most part, protects other people from you, not you from them, so it's discourteous not to wear it."

When it comes time for deliberations, Judge Baldwin said that jurors were allowed to remain in the courtroom while he, his staff and the litigants dispersed.

In Berks County, Judge Parisi said jurors were moved for deliberations into a smaller courtroom rather than the typically cramped jury rooms where panels would normally retire after closing arguments.

Attorneys told Law360 they've been pleasantly surprised by how smoothly the trials have been proceeding so far.

"It was certainly like no trial I've ever tried before, but in a way everything functioned like it should," said Kevin Feeney, an attorney with the Reading-based Feeney & Gurwitz LLC who defended the first criminal case in Berks County when proceedings resumed June 15.

Shawn Dorward, a Harrisburg-based attorney who defended a drunk driving case in Perry County on June 23, echoed that sentiment.

"I think at the end of the day, everybody felt safe and comfortable," he said.

And while counties have put an emphasis on moving criminal cases forward given constitutional guarantees of speedy trials, Judge Parisi in Berks County said he thought his court was still a long way from bringing any civil cases in front of a jury.

"It could be in the fall, but I wouldn't be shocked if it's not until next year," he said. "The virus, to some degree, will tell us what we can and can't do as far as expanding our operations. If we have an increase, we're going to have to pull the reins back on everything again."

As Pennsylvania's smaller counties blaze a trail for larger court systems to follow, officials in Philadelphia said they were assessing what changes would be required both at the Juanita Kidd Stout Center for Criminal Justice and at City Hall, where civil cases are heard, before trials could resume.

"City Hall to this day is still closed," said Judge Arnold New, who supervises the civil division of the Philadelphia County Court of Common Pleas. "Right now we've brought in professionals to go into every courtroom that we have to determine how we can go forward in the future with safe distancing and not putting people at risk."

Judge Jacqueline Allen, who serves as administrative judge overseeing Philadelphia County's trial division, said that retrofitting the Stout Center for criminal trials would prove a somewhat easier task.

"The Stout Center is a newer building, the courtrooms themselves are more uniform, and we have a much clearer template for work from there," she said.

The two judges said they'd been able to identify additional space in both the Stout Center and City Hall to allow prospective jurors to spread themselves out when reporting for jury duty, but that there were still problems to work out in terms of transporting jurors to and from individual courtrooms in the two large buildings.

"The number of people who traffic in these buildings could quickly have the elevators overflowing," Judge Allen said.

In the case of City Hall, where courtrooms vary widely in size, she said civil trials would likely be restricted to certain courtrooms on lower floors of the building.

In the meantime, they said the Philadelphia County courts were continuing to ramp up their ability to conduct hearings virtually, and had been trying to tap additional attorneys through the Philadelphia Bar Association to serve as special masters to resolve discovery disputes and reach potential settlements in civil cases.

"Since we don't have access to the brick-and-mortar building, our thought was to identify the key events in the life of a civil case in Philadelphia County, its touchpoints, and for each of those touchpoints to put out a call for assistance to the bar, and we've been able to replicate those activities to great result," Judge Allen said.

Judge New said that special masters had managed to resolve about half of the approximately 700 cases that had come up for virtual settlement conferences between mid-March and mid-June, representing a significant increase from the 20% to 25% he said would usually end up settling.

Judge Clark said that court staffers in Pittsburgh had already gone through courtrooms in both the Allegheny County Courthouse, where criminal cases are heard, and in the Pittsburgh City-County Building, where the civil division is located, to figure out how best to retrofit facilities for safe in-person proceedings.

"They've measured things, figured out room capacities, and we've put up Plexiglas partitions where appropriate or taped off or removed seats so there would be room for people to sit in those places," she said.

--Editing by Kelly Duncan and Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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