By Brian Dowling

Law360 (August 4, 2020, 4:30 PM EDT) -- Massachusetts state courts are getting creative but remaining cautious as they look to resume live jury proceedings while the coronavirus pandemic remains a major public safety threat, unveiling a multiphase plan Tuesday that could start with a mock trial this month and may include some unusual venues.

The Jury Management Advisory Committee of the Supreme Judicial Court recommended the phased approach in a lengthy report that stressed the need to chip away at an expected mountain of cases while protecting the health of court staff, litigants, jurors and the general public.

"There is no such thing as zero risk," the committee said in the report. "Our objective must be to reduce the risk to a level that is acceptable in light of the importance of the jury trial function."

Jury trials have been on hold in the state since mid-March. Tuesday's report said there were nearly 3,000 jury trials scheduled, but not held, between March 13 and the end of July in state courts across Massachusetts. In the previous three years, the average number of jury empanelments from March 13 to Sept. 8 — the earliest date this year when jury trials can resume — was 1,849, according to court officials.

The committee said that members of the bar it consulted with "unanimously and strongly prefer" starting jury trials in-person with all participants physically present, instead of remote or hybrid arrangements.

State Jury Commissioner Pamela Wood, a member of the committee, said there was "not much enthusiasm" for virtual trials, adding, "You can certainly see why."

"It has a certain appeal on one level of keeping people separated, but there are so many factors that militate against it," Wood said in an interview. "There are constitutional issues about confrontation and a need to assess the credibility of witnesses and the ability of attorneys to gauge reactions to testimony. There were a lot of factors that made people advocate for in-person trials."

The report's starting point — phase zero in the recommendations — calls for a mock trial as early as mid-August in a single location for "identifying issues and making adjustments." Volunteers would sit in for the jurors and litigants, the report said.

Phase one would commence soon after and last about two months, focusing on civil cases or minor criminal charges against people who are not in custody, the report said. The trials would have juries of six people, or seven or eight when including alternates.

Court officials are also thinking outside the literal jury box, reviewing noncourt buildings that the state could potentially outfit for either trials or jury pool assembly locations. The state is in talks with colleges and universities about leasing space for jury trials and is looking at state-owned spaces that could be repurposed, according to the recommendations.

"Everything is on the table," said Wood — though she shot down the idea of Fenway Park, which a Massachusetts federal court judge had jokingly floated in June as an alternate trial site.

Among the potential locations are the Bay State Correctional Center in Norfolk, a former Lowe's store in Quincy and Nantucket's Dreamland movie theater, which the report said was offered at no charge for juror assembly and empanelment.

Dreamland executive director Joe Hale said Tuesday the situation had changed since the theater communicated with the state, and the gratis offer no longer stands. With the Nantucket theater closed in its entirety, the facility would need to be paid for the operational costs of opening up, cooling and disinfecting the space, he said.

"Like everyone else, our revenue has just stopped, and so it's hard to staff a space and heat or cool and clean it when we have no revenue," Hale said in an interview.

In the second phase, the number of locations for jury trials would be expanded, including locations that can accommodate juries of 12, or 14 or 16 including alternates. Courts would start with the highest-priority cases, including more serious criminal matters, youthful offender cases and significant civil cases.

Phase two would continue for two to four months. According to the report, each phase must last at least two months because it needs to span at least two COVID-19 infection cycles. That way, court officials will know if any jurors catch the virus during their service and then infect others.

In the third phase, all locations approved as suitable for jury trials would conduct as many trials as possible to address the expected backlog. This phase of court and noncourt locations would continue until there is "widespread vaccination" or herd immunity has been established, according to the report, which draws on advice from health experts including Joseph Gardner Allen of the Harvard T.H. Chan School of Public Health.

The committee also recommended that jurors be "prominently" informed of their right to decline or defer service based on various COVID-19 circumstances. People over 70 can elect not to serve, people can defer service for a year, and people can seek to be excused based on their own or a householder member's vulnerability to the virus.  

The SJC is soliciting comments on the report and its recommendations until Aug. 14.

--Additional reporting by Chris Villani. Editing by Aaron Pelc.

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