By Jack Karp

Law360 (March 23, 2021, 1:21 PM EDT) -- Jurors stepped back into court Monday for the first time in months as in-person trials restarted in many places, but they're performing that public service in courtrooms that look very different than they did before the pandemic, all to accommodate proceedings that face a host of new challenges.

Plexiglass barriers, socially distant juries and air tests are just some of the physical changes greeting those returning to courtrooms. The measures mean trials will be fewer and take longer, and they create new hurdles for public access to the courts, judges acknowledge.

The changes may also affect how courthouses are designed and built for years to come, according to some experts.

But what's most important, judges say, is that they allow juries back into the courtroom.

"It's elaborate, it's complicated, there's no question that conducting jury trials in this way reduces our capacity substantially," said Maryland Chief U.S. District Judge James K. Bredar. "But we're not dead in the water, we're far from it."

Smoking in the Courtroom

Judge Bredar is taking an unusual approach to restarting in-person jury trials. He is allowing smoking in his Baltimore courtroom — in the form of smoke tests.

On Monday, Maryland's district court held its first in-person jury trial since a November spike in COVID-19 cases.

To ensure that trial is safe, the Maryland district court called in an expert in fluid dynamics from George Mason University to smoke-test its courtrooms, according to the judge.

The tests involve mixing two chemicals in a small tube to create visible smoke and then releasing the smoke to see how and where it moves through the room.

"It was extremely illuminating," Judge Bredar told Law360 Pulse.


Most of his courtrooms turned out to be well-ventilated, but the largest one, which he had been planning to rely on most, was not. Rather than being drawn to the ceiling as in the smaller courtrooms, air in that room moved laterally, Judge Bredar said, "which is exactly what you don't want."

"So you put somebody with COVID at one end of the room and then you blow their exhalations across everybody else in the room at head height and get everybody sick with COVID," he said.

He said the court fixed the issue by encasing a speaker's podium in a clear plastic cube with its own air filtration system and installing ceiling fans to draw air upward.

Other federal courts are improving ventilation by drawing more outside air into ventilation systems and using portable HEPA, or high efficiency particulate air, filters, according to the Administrative Office of the U.S. Courts.

"That capability to try cases has to be there to move the docket and to get cases to resolve," Judge Bredar said. "So we were determined to have that capacity in place."

'Ubiquitous' Plexiglass

One of the more obvious physical changes to pandemic-era courtrooms is the proliferation of plexiglass.

"There's plexiglass on the bench, around the witness stand, on counsel tables and in front of the court reporter," said the chair of Georgia's Judicial COVID-19 Task Force, state Supreme Court Justice Shawn Ellen LaGrua.

Jurors in Fulton County, where Justice LaGrua presided until joining the state high court in January, also reported to the courthouse for the first time Monday, after a trial scheduled for March 15 was resolved before it began, according to a spokesperson for the Superior Court of Fulton County.

Judge Bredar, who said the plexiglass in his Baltimore courtroom was "ubiquitous," went even further.

Not only are attorneys and litigants at counsel tables walled off from the rest of his courtroom, they are walled off from each other. Lawyers are forbidden from leaning around the partitions to talk to colleagues or clients, according to Judge Bredar. Instead, they'll communicate using listen-talk devices like air traffic controllers.

"We've tried to make them as attractive as possible. It doesn't look terrible," Judge Bredar said, though he didn't sound convinced.

Installing the transparent barriers has involved some trial and error, though.

The barrier in front of Justice LaGrua's bench had to be moved when she realized the light reflecting off it meant she could no longer see her own courtroom.

"We've had to adapt in the last year as best we could," she said, "and I think we've learned a lot."

Thinking Outside the Box for Juries

Fitting a jury into a small box when people are supposed to remain several feet apart is another challenge.

"Courthouses weren't designed for social distancing," said Judge Ronald Ficarrotta, chief judge of Florida's 13th Judicial Circuit, who restarted criminal jury trials in his courthouse in February.

Many judges like him are spacing jurors out throughout their courtrooms' galleries or wells rather than using the jury box.

"A conventional jury box just doesn't make it in the time of COVID," said Judge Bredar, who is doing the same.

In Cook County, Illinois, meanwhile, an entire separate courtroom is being used as a jury room for the county's first in-person criminal jury trial, which began Monday, according to Mary Wisniewski, the director of communications for the Circuit Court of Cook County.

In Maryland's federal courts, a similar arrangement includes distanced work stations for jurors separated by plastic barriers, meaning jurors will use microphones to talk to each other, Judge Bredar said.

Selecting a jury is even more cumbersome during COVID-19. Jury selection normally calls for bringing up to 75 people into his court, said Judge Ficarrotta, but distancing means even his largest courtroom now only accommodates 35 to 40 people.

So several courts are conducting voir dire via video. Judge Ficarrotta said he hopes to select his juries remotely in the coming months, at least for civil trials.

Jury selection in Maryland federal courts is being done in a large jury assembly area while a judge in the courtroom takes prospective jurors through voir dire on a TV monitor, according to Judge Bredar.

The measures make jury selection slow, these judges say, but they're necessary to make sure jurors are comfortable serving.

"Jury service is a very important duty of citizenship, and we want to make sure that everybody's safe," Wisniewski said. "We want to make sure that everybody feels safe."

Providing Public Access

Using a courtroom's gallery as a jury box means there's no room for spectators in most of these courts, and many judges have physically removed their galleries' benches.

"But of course there's the absolute responsibility to make sure that a trial is conducted in public," Judge Bredar pointed out.

So trials in his court, as well as in courts in Georgia and Cook County, are being streamed live to a nearby courtroom set aside for spectators.

While this guarantees public access, it means three entire courtrooms are needed for each trial — one for the trial itself, one for the jury room and one for the spectators. That means that far fewer trials can be held, often only one at a time.

"There's only so much room if you're using three courtrooms instead of one," Wisniewski said.

Other judges, like some in Georgia, are instead streaming trials directly to the internet on sites like YouTube, according to Justice LaGrua, a choice she said is left to a judge's discretion.

Outlasting the Pandemic

Some of these public health measures are too impractical to remain in place for long, courts say.

With her courts as busy as they are under normal circumstances, "it's hard to imagine having to use three courtrooms for one trial forever into the future," Wisniewski said.

But even temporary changes could have a lasting effect on how courtrooms are designed and built, according to Allison McKenzie, senior architect with the National Center for State Courts.

"Definitely, yes, it is going to change how we design courthouses," McKenzie said. "Architects and planners will have to respond to new court operations, and we don't know yet what all of those changes to the physical environments might be."

Some of those changes will likely be to building systems, like ventilation, that affect the health of occupants, said McKenzie, who added that "we're going to hear a lot about building wellness becoming more and more important."

And while juries will eventually return to the jury box, changes like remote proceedings and livestreamed trials are likely to continue past the pandemic, according to judges.

So courtrooms will have to be built with more robust audiovisual and broadband infrastructures, McKenzie said. And the need to video judges, lawyers and witnesses while also maintaining jurors' privacy will affect the location of technology and possibly even the configuration of courtrooms.

The amount of space required for court operations will likely also change, said McKenzie, and courtrooms will be reconfigured to support hybrid hearings, like the ones Judge Ficarrotta says he's planning.

"To me what's exciting as an architect and a planner is that now courts know that they can conduct things virtually," McKenzie said. "And so that's super-exciting because there's so much potential there."

Whatever effect pandemic-inspired public health measures end up having in the future, judges say what's important is that they're allowing jury trials to restart now.

The courts have two responsibilities, Judge Bredar said: to ensure people have their cases heard and to keep jurors, attorneys, litigants and court staff safe.

"The challenge has been to perform both of those missions, meet both of those imperatives simultaneously," he said. "I think we're doing it, but it's a balancing act."

--Editing by Brian Baresch.

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