Texas Delays In-Person Jury Trials Until February

By Morgan Conley
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Law360 (November 13, 2020, 7:28 PM EST) -- The Texas Supreme Court has further extended its prohibition on in-person jury trials for justices and municipal courts until the start of February, the high court announced in its latest coronavirus pandemic order.

The order, distributed Thursday, extends the same rules previously imposed on court proceedings. Unlike previous orders from the court, this delay drew a dissent from Justice Jimmy Blacklock.

"I dissented because I would prefer to allow local jurisdictions greater flexibility to re-open courtrooms as they see fit," Justice Blacklock told Law360 in an email Friday.

The most recent delay comes as the number of coronavirus cases in the state is again on the rise. As of Thursday, there were roughly 5,750 new confirmed cases of COVID-19 daily, according to the state health department. At the state's peak in mid-July, more than 10,700 new cases were being confirmed per day.

That number was brought down to as low as 1,300, with occasional spikes, in the last few months but started picking back up in early October and has been steadily climbing ever since. The state reported more than 10,600 new cases on Tuesday, nearly breaking its record high from July, according to data from the Texas Department of State Health Services.

Lubbock and El Paso counties have seen the sharpest spikes recently, while Harris County has seemingly been the most successful at maintaining its progress flattening the curve, the state health department's data shows.

Grant Scheiner, the president of the Texas Criminal Defense Lawyers Association, told Law360 in an email Friday that the postponement orders have rightfully stipulated that remote criminal jury trials can't take place without the accused individual's consent. He said that pandemic jury trials have presented unique constitutional and safety challenges that require special consideration. 

"In terms of the state and federal constitutions, we hope judges will be mindful that an accused has a right to a jury selected from a fair cross-section of the community," Scheiner said. "TCDLA has serious concerns that some minority groups, the elderly and those who are medically vulnerable may not show up for jury service in as great a percentage as normal."

Scheiner added that the TCDLA believes the postponement orders reflect "the reality of the many challenges we face. Any position contrary to extending the order is unreasonable," he said.

Like those before it, the latest update lays out a series of requirements that district, statutory, constitutional county and statutory probate courts must meet in order to hold in-person jury proceedings before Feb. 1. The local administrative district judge must submit a plan for holding proceedings that is consistent with restrictions set by the courts, prove the proceeding will assist with coordinating resources or managing docket capacity, and consult with local health authorities no more than five days before the proceeding.

In addition, the court must consider on the record any objections or motions related to the proceedings at least seven days beforehand. The court also must establish communication protocols to ensure no participants have tested positive for the virus within the past 30 days, have symptoms or have been recently exposed to someone who tested positive, according to the order.

Under the order, existing grand juries can meet in-person if social distancing guidance and other precautions are taken but they also are permitted to meet remotely. 

Slater C. Elza, the president of the Texas Association of Defense Counsel told Law360 in an email Friday that the group's members respect the orders of the state's high court and have been working with opposing counsel and local judges "to find creative ways to keep lawsuits moving forward in a manner that is safe and best protects the rights of all parties."

Elza said from Zoom depositions to virtual hearings, mediations and trials, the group's members have made the best of their circumstances and continue to meet their ethical obligations.

"So far things are going as well as one could hope," he said. "Everyone understands our Supreme Court has a tough job overseeing a judicial system in a state as large as Texas."

At the end of May, the court paused all proceedings until Aug. 1. It has since postponed in-person jury proceedings to Sept. 1, then Oct. 1 to Dec. 1., and now Feb. 1.

--Additional reporting by Katie Buehler and Michelle Casady. Editing by Jay Jackson Jr.

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

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