By Matt Fair

Law360 (September 1, 2020, 4:41 PM EDT) -- As Philadelphia aims in the coming weeks to become the latest Pennsylvania county to resume trying criminal cases since COVID-19 largely shuttered courthouses in March, defense attorneys are warning that a side effect of the pandemic's disproportionate impact on minority communities could be a less diverse pool of prospective jurors for their clients.

Some lawyers say that they worry that the politicization of the virus, combined with its disproportionate impact on Black and Latino communities, could result in a whiter and more conservative pool of prospective jurors than usually seen in the Philadelphia County courts.

"The jury thing scares me a little bit, because I wonder what kind of jury pool we're going to get at the current moment," Philadelphia-based defense attorney Jason Kadish told Law360. "Is it going to be a cross section of the city or is it going to be a lot of folks who are more conservative?"

As courthouses have slowly started to resume in-person hearings in recent weeks and months, the prospect of restarting jury trials — which can frequently involve hundreds of people with prospective jurors, witnesses and counsel — has presented some of the most daunting challenges.

But even as plexiglass barriers go up inside courtrooms and seats are taped off to ensure proper social distancing, one factor remains largely outside of the control of court administrators: the extent to which a potentially skittish public will be willing to respond when called for jury duty.

The question becomes even more concerning when accounting for issues of race and ethnicity.

The Philadelphia County Court of Common Pleas has already sent out 1,500 summonses to prospective jurors — three times the usual number — in anticipation of a higher than usual number of no-shows and dismissals as a panel is picked for a trial set to begin Sept. 8.

"I don't know there's anything more we can do," said Judge Jacqueline Allen, who serves as administrative judge for the trial division in the Philadelphia County courts, which is the state's largest and busiest court system.

The extent of the pandemic's disparate impact in Philadelphia is clear: While Black residents make up 44% of the city's population, they account for 48% of the city's nearly 1,800 total COVID-19 deaths.

By comparison, white residents are about 45% of the city's population but account for only about 29% of Philadelphia's novel coronavirus deaths.

And according to recent surveys conducted by research and consulting firms, that disparate impact is factoring into people's willingness to answer the call when summoned for jury duty.

A survey of about 250 people conducted in May by trial consulting firm Dispute Dynamics Inc. found that 72% of white respondents would be willing to serve on a jury as compared with only 58% of Black respondents and 50% of Hispanic respondents.

The results were backed up in a survey conducted a month later by GBAO Strategies for the National Center for State Courts, a study that found 69% of white respondents would respond to a jury summons as compared with 58% of Black and 64% of Hispanic respondents.

The GBAO survey, which Law360 cited earlier this week in looking broadly at whether fair jury trials are possible in the COVID-19 era, also found that those who reported the greatest likelihood of responding to a summons for jury service were all younger, conservative white men without college degrees.

In a separate survey from Dispute Dynamics limited solely to Pennsylvania residents, the consulting firm found that people who indicated they would be likely to respond to a jury summons were also likely to express negative attitudes toward the Black Lives Matter movement.

Of those who said they strongly disagreed that the Black Lives Matter movement was justified in its calls for policing reform, just over 85% said they were currently willing to serve on a jury.

By comparison, only about 63% of people who said they strongly agreed with the Black Lives Matter movement's objective said they would respond to a jury summons.

"I could see why a criminal defense attorney would be concerned right now, just based on some of these attitudinal measures," said Jill Huntley Taylor, who heads up Dispute Dynamics' office in Philadelphia.

Melissa Gomez, who operates Philadelphia-based MMG Jury Consulting LLC, agreed that the realities of the pandemic could lead to a more conservative bloc of people showing up for jury service.

"The way this disease has been politicized, I think there is a greater likelihood that the jurors who say they're not concerned about the virus are going to be more conservative jurors," she said. "They're going to be on the red end of the spectrum."

The concern about diversity among prospective jurors has already played out in at least one other Pennsylvania county where jury trials have started back up.

As defense attorney Bruce Sandmeyer prepared to try one of Erie County's first two post-shutdown criminal cases in mid-August, he filed a pretrial motion objecting to the potential exclusion of jurors based on their concerns about the pandemic.

"The coronavirus has of course hit the African American community very hard, and that's no different in Erie County," Sandmeyer told Law360. "My client is African American, and we were concerned we would not have an adequate pool with a good cross section of the community for him to be able to select a jury."

In Erie County, where 8% of the population identifies as Black, about 21% of reported COVID-19 cases have been among Black residents, according to local data.

While the judge agreed to hold the motion until jury selection, Sandmeyer said that he and his client were ultimately satisfied when they saw the pool that it was fairly representative of the Erie community.

"Did we luck out with this jury?" he asked. "It could be. Will the next jury be as diverse as this? It's hard to say."

To aid local jurisdictions in restarting criminal trials in the COVID-19 era, the Administrative Office of Pennsylvania Court released guidance earlier this summer that included a sample questionnaire aimed at gauging prospective jurors' concerns about COVID-19.

Among the dozen questions is one aimed at finding out whether prospective jurors consider themselves especially at risk due to age or underlying medical condition and a second asking generally if they had any "other concerns" related to the pandemic that might impact their ability to serve on the jury.

Affirmative responses to any of the questions, the AOPC's guidance said, could be considered grounds for a prospective juror to be removed from the pool for cause.

"The concern is the impact those questions may have when you're looking for a representative cross section of a defendant's community," said Peter Kratsa, a partner with MacElree Harvey Ltd. and president of the Pennsylvania Association of Criminal Defense Lawyers. "In terms of whether it's by race or political ideology, you may be winnowing down the people who answer those questions and wind up being excused by a judge, and defense attorneys are wary of that."

He said the concern was doubly troubling to the extent counties could use the questionnaire to try to screen out jurors even before they report and are able to be questioned during voir dire.

"We don't want a whole lot of questions being asked of prospective jurors without us being in the room to augment or supplement," he said.

For defense attorneys, Kratsa said that it was vitally important to ensure juries are representative of a client's community.

"We want to have diversity of opinion and diversity of race on juries," he said. "Anything that encroaches on that is a concern."

While it's not common practice in Pennsylvania for local courts to track juror demographics, the state's Interbranch Commission for Gender, Racial and Ethnic Fairness launched a pilot program in 2012 aimed at trying to gather such information across four counties.

Data from the pilot project shows that, even without the complications posed by the pandemic, minority defendants are already working from a deficit when it comes to diversity on jury panels.

In three of the four counties included in the pilot project, the data showed that summonses were sent to a disproportionately low number of Black residents as compared with their proportion of the overall population.

Data for the fourth county was not immediately available.

In Lehigh County, for instance, the data showed that only 3.2% of summonses issued during the course of the pilot program went to Black residents, despite Black residents making up nearly 10% of the total population.

A separate study of juror participation rates in Philadelphia County two years ago, meanwhile, recommended that the courts there look into the feasibility of collecting baseline demographic data on individuals reporting for jury duty.

But with so many challenges facing the court right now, Judge Allen said the resources for such an initiative simply aren't available.

"We have our plate full right now with so much else," she said.

At the same time, however, Judge Allen suggested that there could be a countervailing force at play to mitigate any negative impacts the pandemic could have on the Black community's participation in jury service.

"With all that's going on nationwide in this era of George Floyd and racial injustice, I have a gut feeling that, on some level, we may be getting more involvement by minority communities in the justice system," she said. "That could be my hope springing eternal, but I could see a scenario where that works to an advantage and this message reverberates in marginalized communities and results in more responsiveness."

--Editing by Rebecca Flanagan and Jill Coffey.

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