By Scott Turner
Senior Trial Attorney, District Attorney’s Office in Ector County
I practice in Ector County, which is located in West Texas. If I had to describe the residents of West Texas, it would probably be to say that they are polar opposite of the residents of Austin. Specifically, they were among the last people to acknowledge COVID-19 was a real thing. They were among the last ones to start wearing masks or even socially distance. When Governor Greg Abbott mandated the shutdowns, they were also among the last ones to actually do it. Conversely, when Governor Abbott ended the shutdowns and stopped requiring masks, West Texans were among the first ones to re-open and end the limits on entry into businesses. There are several residents today who refuse to get vaccinated or even believe there is such a need because COVID-19 is no worse than the flu.
At least some of these beliefs are shared by those who make decisions regarding the criminal justice system in our area, which is why ours was one of the last jurisdictions to stop having jury trials at the beginning of the pandemic and one of the first to resume trials now that things have opened back up.
Ector County has four district courts that handle primarily criminal felony cases, one with a primarily family law docket, three county courts, and four justice of the peace courts. For the purposes of this article, I am going to focus on the district courts that handle criminal felony cases. Pursuant to Texas Supreme Court guidance, these courts began to have jury trials in May 2021 and are currently still doing so. Before trials began again, there were many concerns about what a trial should look like or even if trials could be conducted safely. There were discussions about whether jurors would show up when they were summoned and whether the courts could properly socially distance the jurors who did show. Would there be any Confrontation Clause issues if jurors or witnesses wore masks? Finally, what would we do with jurors during deliberations, and could our jury rooms accommodate social distancing?
A civil commitment trial
The first case we tried after the shutdown was the civil commitment of a sex offender—this was in October 2020, long before most offices went back to trying cases. We had to address how to socially distance a jury panel of 200-plus people, and our first attempt was to do jury selection at an outdoor location. The court reached an agreement with people at the Ector County Coliseum, and the qualification of the jury panel was conducted there. Before they even arrived at the venue, prospective jurors were sent a COVID-19 questionnaire that asked a series of questions to determine if they had COVID symptoms or had been exposed to anyone who was infected. When jurors arrived at the coliseum, they were masked, lined up, and socially distanced with a series of barricades. Their temperatures were taken, and people were asked again if they had experienced any COVID-related symptoms in the recent past.
After jurors entered the building, they were seated in chairs that were socially distanced. Because of the size of the room and the distance between all court participants, we used a microphone with each prospective juror during the qualification process. The court coordinator, also masked, walked from one juror to another and held the microphone up to their mouths so they could respond to questions. After each witness was finished answering, the foam microphone cover was replaced. There were additional conditions on how many jurors could be in the bathroom at any given time or could congregate in the hall during breaks.
From that larger group, a jury panel was selected, and that panel was taken to the largest courtroom available for voir dire. During voir dire, the jurors were socially distanced and masked throughout the courtroom. When jurors were asked questions, they were allowed to pull the masks down so that the parties could hear their answers. The court also had plexiglass shields installed between the bar and the gallery, around the witness stand, and around the jury box. It should be noted that the defense did object to the proceedings taking place during the COVID-19 pandemic; I should also note that this was not a criminal proceeding, and there were some differences in the requirements to conduct civil versus criminal proceedings during that time.
In this case, sufficient jurors were qualified, and a panel was selected. The case was tried, and jurors deliberated in a much larger meeting room, rather than the small deliberation room, that would ordinarily hold more than 100 people. In the end, the defendant was civilly committed, and there were no complaints from jurors. While it seemed to work for this particular trial, I don’t know if it would have been sustainable over a normal trial schedule. I also don’t think that this process would have been feasible for a trial involving a lesser offense.
Changes since then
After the civil commitment trial concluded, the court attempted to conduct a criminal trial, as the defendant had been in custody for some time. However, the defendant tested positive for COVID the Friday before the trial was to commence.
It was then determined, after court officials spoke with doctors at the Department of Health & Human Services, that defendants in custody should be quarantined 10 days prior to a jury trial. After speaking with officials in the jail, though, we determined that the quarantine requirement was not economically feasible for the jail. Based upon this representation by the jail officials, the Court suspended all criminal jury trials until May 2021.
When trials began again in May 2021, we focused on the most serious cases with defendants in custody. We also had smaller dockets with fewer defendants in the courtrooms at any given time. The intent was to give those defendants in custody their day in court while considering the safety of the parties, jurors, and witnesses. We have had about 25 jury trials since May. This number is, of course, fewer than we would ordinarily have had, but it is certainly more than we did last year. This time, instead of conducting jury qualifications at the Coliseum, the court qualified jurors in the courthouse but did so in multiple shifts, which allowed for socially distancing them. Initially the plexiglass barriers remained, but they were later taken down because jurors told the judges that they had problems seeing evidence that was published through the glass.
Now, when jurors arrive, they are not allowed to wear their masks in voir dire, but the court does provide clear face shields to anyone who requests one. Finally, jurors are back to deliberating in their ordinary jury room. Surprisingly enough, the citizens who come for jury duty seem to be completely fine with these precautions. Fewer people arrive in masks and even fewer request a clear face shield. Finally, with regard to prospective juror participation, there have been a few trial weeks where a lack of prospective jurors was an issue, but it was not clear whether COVID was the reason, as opposed to general aversion to jury service. It is clear, at least in Ector County, jury trials will continue, as long as the citizens and court feel comfortable with the current set of safety protocols.