By Jaime Flores and Afton Washbourne
Assistant County Attorneys in Travis County
In March, like so many prosecutors across the country, we found ourselves in a courtroom one day and in our living rooms the next. Prosecutors in our office held our last jury trial in an actual courtroom in February, and a few weeks later, on March 16, we made our final appearances inside the Blackwell-Thurman Criminal Justice Center in downtown Austin. After morning dockets, where prosecutors asked defense attorneys to stand 6 feet away while we negotiated cases, we returned to our office to a series of socially distanced meetings called by our boss, County Attorney David Escamilla. He informed us that due to COVID-19 concerns, we would begin teleworking. We packed up and transported our laptops and monitors home, not knowing how long the shelter-in-place order would be in effect. Within a few weeks, our office had completely transitioned into working from home.
Our office was faced with a crisis in how we could move forward seeing justice done without putting ourselves, defendants, and court officers at risk. It was a whole new world. The immediate focus was addressing the jail population, so we first set systems in place to conduct online bond hearings and to plead cases for defendants in custody. Next, we started pleading cases via Zoom for out-of-custody defendants, followed by conducting contested pretrial hearings. Our office worked closely with judges, court staff, and the defense bar to utilize virtual capabilities to continue most of our daily courtroom activities—everything except the last frontier, conducting an actual jury trial.
That all changed on August 11 when we successfully tried to verdict the nation’s first criminal jury trial via video-conferencing.
Questions to consider
From the beginning, our office had been thinking about how we could possibly move forward with jury trials. Could we find a venue big enough to seat jurors 6 feet apart from each other during voir dire? Should we put up plexiglass in the courtrooms? Would everyone be required to wear masks? Or should we just keep waiting?
As the waiting dragged on into the summer, it became clear we needed to find a solution because no one was going to be back in the courtroom anytime soon. Our office was approached by one of our Justice Court judges, Nicholas Chu, who was interested in putting together a binding jury trial to be conducted entirely virtually. Judge Chu had been working with the Office of Court Administration to design a process that would accommodate a virtual jury trial, and he wanted us to participate. Our office was fully on board with conducting a virtual trial because we too wanted to test the waters—it’s easy to argue why this is a good or bad idea, but you never really know until you do it.
The two of us began working with Judge Chu and a local defense attorney, Carl Guthrie, to comb the JP jury dockets looking for the perfect candidate. Mr. Guthrie had agreed to represent a pro se defendant pro bono so he too could test the capabilities of a Zoom jury trial. We identified several possible trials from cases that had been on the jury docket and were not able to be resolved through plea negotiations. Next, Mr. Guthrie began contacting defendants and offering his services if they would agree to participate in the virtual trial. Before long we had found our case: The defendant, Calli Kornblau, was a single mom and nurse who had been pulled over for speeding in a construction zone. She was adamant she had never seen the construction signs and never speeds. This case had everything we wanted in our test case: officer testimony, photographic evidence, bodycam evidence, and a little meat to the offense that needed to be explained in voir dire.
Throughout this process, the biggest question we faced was why all of the parties (State, defense, and court) were wasting valuable time on a Class C traffic ticket. We actually viewed it as the perfect opportunity. It was a low-stakes case, so even if we experienced massive technical failures that ended the trial prematurely, we would still be able to fully test the capabilities of a virtual trial without sacrificing justice for a victim or the safety of the community. Though typically, Class C cases are handled by new prosecutors in the office, our boss wanted seasoned prosecutors to handle this one and really test the limits of a groundbreaking next step in jury trials. Neither of us had tried a speeding ticket in almost 10 years, so we had to kick a little dust off, but the basics of a jury trial are all the same.
Throughout the summer, the two of us met weekly with Judge Chu and the defense attorney to discuss various logistical problems and how we would handle them. The first question was making sure we had a fair jury panel. Our district clerk began by sending letters to potential jurors inquiring about their Internet connection capabilities. The Office of Court Administration worked closely with the clerk to purchase iPads for jurors who did not have a device capable of connecting to the court. This would be the best way to assure we had a true sample of our community in the jury pool, not just those with the necessary technology. Jurors were polled to make sure they were willing to participate and fulfill their jury duty via Zoom. We were careful to draft admonishments to inform jurors that for the duration of the trial, they must remain alone, appear on video, pay attention, and refrain from using other technology to conduct research—basically, everything possible to make sure they acted as if they were in the courtroom.
Everyone admonished witnesses in the same way and swore in the jury and witnesses just as would happen in open court. The court was open to the public by broadcasting the entire proceeding on YouTube. Through it all, we still ended up with some interesting situations. There were technology crashes, freezing pictures, outside noises, and of course a cat made an appearance.
The trial begins
Our workday began at 8 a.m. with pretrial motions and hearings, followed by the tedious process of checking in jurors. Each juror from the 30-person panel logged in from home. The court staff met with them individually online to test their systems and connections. The technology worked as you would expect, and five people were excused before we even began voir dire because their connection issues were too much to overcome.
Zoom limits the size of the viewing grid on screen, so the parties had agreed to separate voir dire into two different 15-person panels. This was perhaps the biggest challenge because voir dire is so dependent on the conversations within the panel. We knew the strike zone would likely extend into the second panel, which would have heard a completely different voir dire from the first panel. We tried to make both versions as similar as possible by screen-sharing a PowerPoint presentation so each panel experienced the same basic outline. Obviously, reading juror body language was hindered through a computer screen, and utilizing multiple screens was imperative to get the grid view as large as possible. There was also no way to virtually seat the jurors in a specific order on the screen, so we had to resort to labeling and addressing each juror with his or her number.
We had practiced voir dire multiple times within our office to figure out how to get jurors to mute and unmute themselves, how to alert jurors they were being questioned, and how to get group feedback and responses. While the basic structure of voir dire remained the same, this online method made the process so much harder. You lose direct connection through eye contact. You lose the ability to use your voice and body language together to convey what you’re trying to say. You lose the flow of conversation while waiting for lagging streams to catch up or for jurors to unmute themselves. We also found ourselves a bit lost when making our peremptory strikes because the bulk of our strike zone was in our first panel and that voir dire had been conducted over an hour and a half earlier. Additionally, it was difficult to remember jurors who had been seated randomly on a computer screen. But in the end, a jury of six with one alternate was seated.
The court’s decision to select an alternate was a smart move because a juror was lost within the first 30 seconds of starting the trial. His screen froze multiple times and after several minutes, the OCA technical team was unable to get him back online. He was excused, and the trial continued with the alternate.
The structure of the trial remained exactly as you would expect: The jury was sworn in; the complaint was read; both the State and defense gave opening statements, proceeded with evidence, and closed, and the judge sent the jurors into a breakout room to deliberate. The biggest difference, of course, was that the two of us conducted the trial from our own homes, locked away from our families so our young children wouldn’t interrupt to say hi to the jury or ask for snacks, like they normally do when we’re on Zoom calls.
The State called only one witness, but we admitted several pieces of evidence. We had prepared our witness for the trial through multiple test runs. He is a Travis County Sheriff’s Deputy who was on-duty when we needed him, so we had to find a quiet location for him to set up his county-issued laptop. We also had to work with him on the technology—we couldn’t hear him on our first test, and then his face was too small on the second test. We utilized our IT staff to maximize his Zoom capabilities so jurors would see him as clearly as possible. The defense made several objections about how the officer would present himself and what he would have at his disposal during the trial. The State wanted the officer to be able to refresh his memory with his citation, and the defense objected to him reading from it. The parties compromised by having the officer place the citation in a folder, so it would be obvious when he referred to it, giving us the opportunity to make the appropriate requests and admonitions.
In court, we all used the electronic Box (www.box.com) format to create separate folders for “offered evidence” and “admitted evidence.” The court, defense, State, and witnesses all had access to the offered evidence folder and were given individualized logins to upload to it and view it. As we offered evidence, it could be uploaded in real time so witnesses could review and identify it, laying the foundation for admission. Once admitted, the court moved each piece of evidence to the admitted evidence folder. Jurors were given access to download that evidence to their devices during deliberations. During the trial, however, the parties utilized screen-sharing to publish evidence. As we were questioning witnesses, we could play a video or show a photo to the witnesses and jurors. The biggest limitation in the technology was the lag while playing the officer’s bodycam video, which sometimes made the audio distorted and difficult to understand. However, those issues could be resolved by the jurors’ ability to download the video.
Throughout the trial the court used private breakout rooms for sidebar conversations at the virtual bench or during breaks so each side could communicate freely away from the other parties and away from the YouTube audience. After closing, jurors were sent to a private breakout room to view the evidence and deliberate. Approximately 20 minutes later, they returned a guilty verdict to the speeding charge but declined to find the defendant was in a construction zone with workers present. The judge offered the defendant two options typical for a speeding case without the construction zone enhancement: 1) a final conviction with a $1 fine, or 2) a 90-day deferral with a $50 fine. After conferring with her attorney, she chose the deferral. Ultimately, the sentence did not matter much to us.
Online vs. in-person
Zoom certainly presented challenges you wouldn’t expect in your typical courtroom. At our homes, we had to spend time choosing backgrounds free of distractions, focusing on being heard and seen on camera, and making sure our thoughts were clearly conveyed in a gallery view. Because we were unable to sit next to each other at counsel table, the two of us had to communicate through our intraoffice Microsoft Teams connection. The defense team set up at their office, each attorney in his own space. Judge Chu appeared from his bench in his courtroom, and he was assisted by his office staff who were all connected from home. Some of the flair of trial was lost via Zoom—gone was the dramatic closing argument with soft voices and meaningful glances. We had to focus on what we were saying and how it would be heard by a juror with screen fatigue who was sitting on his couch.
The technology also forced us as attorneys to practice when to mute and unmute different people. As the person actually doing the voir dire, Afton had to learn how to both speak and have a conversation while managing the function of the technology all on her own. The week before trial, the court held a mock trial with attorneys for the State and defense and stand-ins for jurors and witnesses. We conducted a mock voir dire, opening statements, direct and cross examinations, and objections, and we practiced publishing evidence. This allowed the court to practice muting and unmuting parties and jurors, screen sharing, and moving parties and jurors in and out of breakout rooms. Everyone, from the presenting attorneys to the court, had to research all the capabilities of Zoom, including spotlight features, shutting down chat options, and sharing hosting capabilities. We feel like we could give a master class in Zoom presentation skills, beginning with the importance of good lighting.
During the trial, more than 1,000 viewers were watching us on YouTube. We didn’t find out until after the trial that approximately 10,000 unique viewers tuned in throughout the day. Nervous isn’t the correct word, but it did make us more aware of our demeanor and expressions. Having a constant closeup of your face for everyone to examine and judge did add to the stress, and of course, knowing you were always watched made itchy noses much more common. At the end of the trial, we felt more drained than we normally would at the end of a Class C trial.
In the real world, this would have been a very simple trial which would have required very little preparation. In JP court, prosecutors normally wouldn’t find out which case they were trying until that morning. After a few minutes talking to the officer, we would have picked a jury and tried the case. The jury would have returned a verdict by lunchtime. This trial, though, was a difficult and lengthy process for a Class C offense. However, it was a necessary experiment in seeking justice during these uncertain times. With more than five million cases of COVID-19, more than 183,000 deaths in the United States, and no end in sight, those in the criminal justice system need to find new ways to protect the health of our community, as well as the constitutional rights of defendants. This trial was the first step in providing defendants their right to a jury trial and reducing docket backlogs.
That isn’t to say that Zoom trials are something we should embrace without question. Our trial was simple, with minimal witnesses and evidence, but there were still streaming issues with playing a three-minute video. A case with hours of dash-cam video and body-worn camera footage would be exponentially more difficult. Judging the credibility of witnesses is much more difficult when you can’t clearly hear their voices or read their body language. Some of this information can be conveyed through video conferencing, but how much is lost through lagging streams, small screens, and distracted jurors?
Speaking of distractions, we should note that one juror had a cat that came in and out of view throughout the trial. That cat was certainly an unexpected star of our show and took everyone’s attention. Other jurors were clearly bored and could be seen looking at different things in their homes. Everything you have seen in your office Zoom meetings also happened in this trial. Jurors were easily distracted and less focused as time went on. Keeping their attention for days of evidence would be difficult.
The pandemic has presented our profession the unique challenge of protecting a defendant’s right not only to a speedy trial but also to a fair trial. Is this the way of the future? Perhaps it’s too early to tell. This trial was certainly a grand experiment, searching for the answer to that question by trying something new and seeking a way to keep the wheels of justice turning.
In the post mortem of trial, everyone has mentioned they would be willing to try a Zoom jury trial again—the State has gotten mostly positive feedback about it while the defense attorney has had to weather some pretty bitter attacks about the need to protect a defendant’s right to confront witnesses. It seems clear that trials, at least at the Class C level, will need to be virtual for quite some time. Judge Chu pointed out that jurors would be upset if they risked their lives to come to jury selection in person only to find out it was for a traffic ticket. So it is likely that Travis County will continue attempting jury trials virtually at least for these low-level offenses.
Bigger questions and pitfalls arise as to whether we could do more complicated misdemeanor or felony trials via Zoom. Nobody plans to tackle that question anytime soon, but neither is anyone completely shutting the door to the possibility of this new way of doing things.