By Elisha Bird
First Assistant District Attorney, and
Assistant District Attorney, both in Brown County
Amy Ray—singer, songwriter, and one-half of the Indigo Girls—once said, “Your perspective probably depends on where you live.” When it comes to jury trials in the age of COVID-19, we agree. Not just where you live geographically, but perspective also depends on who the judge is, which defense attorney is involved, what you are used to in a trial, and ultimately, whether you got the outcome you wanted.
Recently, the two of us prepared for the first COVID-19-era jury trial in our area. Our perspectives were quite different, even though we sat next to each other (less than the socially appropriate 6 feet apart, actually) for the entire trial.
Alex came in as a young, full-of-energy prosecutor who, because of the pandemic, has spent half of his career practicing through Zoom. Elisha was dragged kicking and screaming into trial as a reluctant co-counsel who had practiced primarily in the pre-COVID-19 world. Alex’s satisfaction with the trial process comes from his knowledge that he tackled an important case in a world of unknowns and on-the-fly adaptation, and he emerged with a great outcome for our victim. Elisha’s concerns about the trial process were framed from the perspective of having litigated appeals and habeas writs for years and having developed trial skills in a world where observation of the faces of witnesses, victims, and jurors formed a critical component of the process.
Ultimately, the balance of our perspectives led to a fantastic outcome for a woman who faced great danger by coming to court to confront her abuser.
From Alex’s perspective
“No way do I want to be the first prosecutor in my jurisdiction to do a jury trial in the age of COVID!” That’s definitely what I thought. But on August 10, I did just that. Though there were plenty of novel challenges, the biggest surprise of all for me was that, on balance, it went pretty well.
In the past six months, most of us have become familiar with the rules. Most courts, mine included, shifted the entire docket to Zoom. We wear masks to buy groceries, stay 6 feet apart from other people, and avoid crowds. Applying these rules to jury trial seemed daunting.
Despite our best efforts to pick a more innocuous test case, we wound up trying an assault-family violence that was enhanced to a third-degree felony because of a previous conviction, plus a separate retaliation case that had been joined for trial. Both cases also had a repeat offender enhancement, so the defendant was facing up to 20 years in prison.
Originally, the defendant had severely beaten his girlfriend in 2018. Our case came from an incident in 2019 when, the day after being placed on probation for the 2018 assault, the defendant beat her even more severely for speaking out. He further threatened that if he wound up in jail for it, he would kill her.
Before the current case was on the trial docket, the defendant’s misdemeanor probation was revoked for the maximum sentence, one year in county jail. As soon as he was indicted in late 2019 for the latter assault, the victim began calling our office repeatedly to ask if he was getting out and pleading with us to keep him locked up for fear of her safety. In the months of back-and-forth correspondence with the victim, I assured her that our office would not be offering probation and that, if need be, I would get it to trial fast enough to keep him from getting a chance at bond in the interim. At the time, the trial was set in March, and the defendant was to stay in the county jail until July 18. Plenty of time.
As it turned out, jury trials were canceled for March. Then they were canceled for April, May, and June. Despite facing as much as 20 years, the defendant refused even a generous seven-year plea offer. At that point, trial was the only option.
I cannot say for certain why this particular defendant and defense attorney were agreeable with going forward as the test case, but a few factors do come to mind. Citing the danger to the victim, I had won a significant bond increase to $20,000 in each of the two cases. The defendant refused to admit any guilt or take any pleas, holding firm to his belief that he was defending himself against the victim—against all evidence and in spite of a holding to the contrary at the revocation hearing. Put simply, the defendant thought he would win and didn’t want to wait in jail for this whole COVID-19 thing to blow over.
The defendant wanted a trial, and I was prepared to give him one; the only remaining question was how? I never seriously considered a Zoom trial—for every practical, technological, and appellate issue an in-person trial would present, a remote trial would present even more. Beyond our trusting 12 jurors to figure out the technology, it seemed impossible to protect the defendant’s rights without his appearing in person.
By that point, I am thankful that the pieces had begun to line up to make an in-person jury trial possible. Brown County was fairly average in terms of COVID-19 exposure in rural areas, and precautions were taken. Plexiglass shields surrounded the bench, the jury box, and the clerk’s desk. Voir dire would be conducted at the Mims Auditorium, a roomy venue at Howard Payne University, blocks away from the courthouse, so potential jurors could stay socially distant.
The one-man tech department at our courthouse, Matt Krischke, set up cameras at the witness chair, bench, and gallery. These cameras, in conjunction with the webcams on counsels’ tablets, broadcasted via Zoom into the county courtroom, which was set aside to allow viewers to watch the proceedings remotely.
The technology held up through the trial without issue. If there is a single piece of wisdom I gained from the experience, it’s that you ought to make friends with your tech person. When in the heat of trial and not focused on technology, you will rely on that person to troubleshoot the many problems that can—and will—crop up.
The case itself, while not ideal, was reasonably suited to the challenge. I needed only six witnesses, and most were local law enforcement. The defense attorney was flexible about adjusting the usual procedure. It was a strong case on the merits, with good medical records and pictures of the victim’s severe injuries.
Including voir dire, the trial took four days. On Thursday afternoon, after deliberating just under an hour, the jury returned a guilty verdict. After a brief punishment hearing, the judge pronounced his sentence: 18 years. The verdict was as good as I could have asked for in normal times, let alone COVID-19 times.
Overall, the trial went better than I had expected. Compared to the myriad, unpredictable issues that can crop up in any trial, the ones in this case turned out to be manageable. Nothing but a jury trial could have resolved this case while also protecting the victim. Despite the difficulties of actually trying the case and the appellate litigation to come, I am confident that taking it to trial was the right choice. Nothing prevented us from reaching a good verdict.
Beyond simply resolving this case, being able to take cases to trial again has made the rest of the docket start moving again. While the one I tried remains an appellate concern, all the others it has helped move to plea present no such risk.
It will likely be well into 2021 before trials can go back to the way they used to be. While caution is surely due, trials are not impossible or infeasible. If your case is anything like this one, it’s worth the extra work to try.
Contrary to how it seemed from outside our office, at heart, I was not opposed to resuming jury trials. But the initial process of restarting trials involved significant discussion between myself, our district judge, and our elected district attorney, and those conversations wound up changing my perspective drastically.
Initially, I was excited to pick back up and go forward. I began strategizing the perfect case to present in the new formats we were considering. My primary concerns were finding a case without a victim (or with low risk to the victim) and ensuring that the COVID-19 modifications would not result in having a conviction overturned on appeal. My enthusiasm dropped when I realized that many of our concerns about procedures were summarily dismissed in these discussions. My hackles rose even more when I learned that we could be forced to accept these new procedures even over significant objections. I was concerned that we would be forced to try two serious felony cases, essentially blindfolded with both hands tied behind our backs.
Ultimately, I believe we did go to trial severely handicapped in several ways, but I also believe that it is a testament to the commitment of our office, my co-counsel, Alex, and some final accommodations granted by the trial judge that led to such a great outcome. At the time of writing this, our office has now successfully completed a second jury trial too. The hard work is paying off—but, from my perspective, it has been a very bumpy ride.
When we were discussing trial modifications to account for COVID-19, several suggestions were straight out of a prosecutor’s nightmares. We were able to modify, change, or in some cases prevent those suggestions from being implemented. For example:
Socially distancing the defendant. The first, and by far the worst, COVID-19 trial modification we dealt with was socially distancing the defendant and the defense attorney. At the outset, plans were floated to have the defendant seated 6 feet away from his attorney in a plexiglass box.
When we asked how the defendant could adequately communicate with his counsel during trial, the suggestion was made that he be given a little flag to raise—à la Pancho’s Mexican Buffet’s “Raise the flag for a taste of Mexico!”—whenever he wanted to speak to his attorney. While I can only assume (and hope) that this suggestion was made in jest, the tenor of the conversation and the fact that this was the only solution being entertained for a while suggested otherwise.
It is easy to poke fun at the solutions proposed for this problem. However, the trial court was in an unwinnable situation: For safety purposes, social distancing was necessary, but for constitutional purposes, interaction had to be allowed. Ultimately, the court chose to resolve this conflict by requiring defense counsel and the State to put on the record that we voluntarily chose to sit next to the people at our counsel table and that we waived all liability the county may face if we contracted COVID-19. While I question the validity of such a waiver, I went along with this procedure because every other idea would have resulted in what seemed like almost certain reversal for violation of the defendant’s constitutional right to communicate with his attorney.
Voir dire in an auditorium. Voir dire was the biggest area where we were handicapped. Being blindfolded is an accurate analogy given how difficult it was to observe jurors during the process. We were spread out so far across an auditorium that just seeing the jurors in the back was a challenge. Attempting to evaluate facial expressions behind a mask was excruciating as well. Jurors were required to wear masks at all times unless they were speaking. Masks prevented us from drawing on nonverbal facial expressions to cue follow-up questions or to make striking decisions.
Finding COVID-19 accommodations that did not deter jurors from speaking during voir dire was also a challenge. Each jury panel has its own character—some are talkative, some are crazy, and some are extremely quiet. The initial suggestion was to have jurors stand up, climb over other jurors to get to an aisle, walk to the front of the auditorium, and speak into a microphone. Our concern was if we had a panel that tended toward the quieter side, then this process would cause reluctant jurors to remain silent instead of engaging with us.
We prosecutors proposed a reasonable alternative that worked fairly well. Each attorney used a lapel microphone, and the attorneys were allowed to move into the well and aisles of the auditorium to get closer to jurors—as long as we ultimately kept 6 feet of space between us. The trial judge also allowed jurors to remove their masks while speaking. To assist the court reporter, get more feedback from other jurors, and help my co-counsel take notes, I repeated each panelist’s answer into the lapel mic.
(That process worked far better than the method we used for the second jury trial, where the trial court changed the procedure with only a few minutes’ notice. During this second trial, jurors were required to wear their masks at all times, even when speaking. Two people had been designated to walk around with a mic on a boom arm. A protective covering on the microphone had to be replaced every time someone spoke into it. The attorneys were stationed on the auditorium stage with a podium that they were instructed to remain behind. This process was agonizingly painful to watch and extended the time needed for voir dire dramatically. Even worse, because of the masks, jurors’ comments were frequently unintelligible, even with the microphone. I spent most of the voir dire leaning over to another prosecutor asking, “What did they say?” Given a choice between these two options, I prefer the first method. While it had its drawbacks, it functioned far better than the second.)
The judge’s office, staff, district clerk staff, and bailiffs all had to make a lot of adjustments as well. While we helped them sort through some of them, the only issue directly relevant to us was the number of jurors who appeared. The district clerk’s office summoned more jurors than it typically would. After some people were dismissed during the COVID-19 screening process, we wound up with far fewer panelists than we usually would have, even despite the large number of summons.
Amy Ray’s quote comes to mind again here, that perspective probably depends a lot on where you live. If a judge will allow people to remove their masks while speaking, the odds of being able to adequately communicate with jurors will go up. Also, for rural jurisdictions, there are ways to intelligently exercise strikes even without having all of the normal tools of voir dire at one’s disposal. Our district attorney has lived and practiced in this jurisdiction for over 20 years, and I have lived and practiced here for 12. Between the two of us, we were able to identify numerous jurors either through personal knowledge or reputation. Although we aren’t always able to recognize so many people, we have been lucky for these first two trials.
One alteration to a typical voir dire in the first trial also helped us identify several jurors with significant issues. I wrote a special section of questions to ask jurors if any of them would have trouble responding to questions in the unusual environment and built-in methods for jurors to respond without having to speak. To my surprise, we got a lot of responses and feedback with critical information. Two jurors stood out during this section. The first indicated that because of extreme social anxiety, he would not be able to answer any questions at all. When we had him approach the bench, he struggled to speak to us even to explain how negatively the process was affecting him. Another juror indicated that she did not feel comfortable either. Although she ultimately wound up serving, we appreciated knowing what she was struggling with so that we could adapt to the needs of the panel.
Monitoring the courtroom. Adaptation to the trial differences was far less drastic than re-thinking most of our voir dire strategies. However, there were some noticeable bumps here as well. We were able to use our regular courtroom to keep us on familiar ground. Many of the adjustments we made were specific to our courtroom, but a few things have some universal application.
The first thing Alex and I realized suddenly as the trial was beginning was that we had no ability to monitor the courtroom to make sure no witnesses intentionally or inadvertently violated The Rule. Because the trial was being streamed into a completely different courtroom, neither one of us could watch the audience. We ultimately had to send our victim-witness coordinator, Stephanie Crosson, down to that other courtroom for the duration of the trial to monitor who came in and out.
Objections. Objections also looked far different in our plexiglass-filled courtroom. Approaching the bench was pointless—if we spoke loudly enough for the judge to hear us, all of the jurors heard the entire conversation as well. Every bench conference thus involved us trooping through the courtroom to the judge’s chambers. We wound up with fewer objections than usual because of this process, probably in part because the defense attorneys in both of our trials have very laid-back styles and typically do not object much.
Although there were no negative repercussions outside of feeling ridiculous and going more slowly than usual, this area concerns me for the future. How will trials with defense attorneys who are more aggressive in style affect the pace of evidence and our ability to present it effectively? Will fewer objections lead to more ineffective assistance claims?
Quarantining jurors. We never had to deal with a juror being quarantined because of COVID-19 exposure. However, just a few days before the trial, we realized a large risk that was never fully addressed. If a juror becomes aware that he or she has been exposed to COVID-19 and should quarantine, what should happen to the trial? Does everyone need to quarantine? Do we excuse the one juror and continue the trial? Is there a conflict between the standards for determining when a juror becomes disabled under Article 36.29 of the Code of Criminal Procedure and the current quarantining protocols?
We did not have to deal with this issue, but we did convince the trial judge that an alternate was critical in case the issue arose. We probably could have convinced the judge that two alternates would be a good idea if we could have found room to socially distance them.
The lack of a record. Given our successful trial record during COVID-19, the unanswered question now looming is how creative appellate attorneys will attack what we did. Throughout the entire process of getting ready for an in-person trial, this was my primary concern. I did not doubt Alex’s abilities to flex through all of the accommodations we were making, but we flexed and adapted with very little caselaw to guide us or the trial judge.
In anticipation of an appeal, I asked repeatedly to have a record made—if not of the entirety of the informal meetings or dress rehearsals held by the trial judge, then at least a summary of what was discussed once we went on the record. Defense counsel was always notified of the informal meetings and participated in several of them. Many of the accommodations that were made were at defense counsel’s specific request or with no objection from the defense. However, almost none of that ever made it on the record despite our office attempting to create a record as often as possible.
It is too soon yet to know what effect any of these bumps will have on the appeals. We hope they won’t matter, but it’s certainly true that your perspective depends not only on where you live but also on what issues are raised by the defendant’s appellate attorney.
The two of us certainly have different perspectives on how this trial went. Neither perspective is wrong, and in this brave new world of coronavirus-modified trials, we need both. Our strength as prosecutors will come from balancing the unqualified optimism of our young attorneys with the cautious planning of our experienced attorneys. Elisha needs Alex to remind her how successful this trial was, and Alex needs Elisha’s reminder of the risks we face on the next trial and the appeal in this case.