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As Defendants Sit in Jail with No Trial Date, Jury Selection Gets Creative

The pandemic's effect on courts means longer waits in jail for defendants who can't afford bail.EXPAND
The pandemic's effect on courts means longer waits in jail for defendants who can't afford bail.
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Criminal cases in Dallas County courts have been at a virtual standstill since the COVID-19 pandemic hit. One of the biggest hurdles the court system is trying to overcome is how to select a jury in times of face masks and social distancing. 

At the county commissioners court meeting on Oct. 6, some were growing impatient with the lack of progress in proceeding with criminal cases. 

“We act as though we’re kind of paralyzed. At what point do we finally get to the point where we push that button?” Commissioner John Wiley Price asked Judge Dominique Collins, who presides over the Criminal District Court 4 and is the jury room administrator at the Frank Crowley Courthouse. 

Inmates are expressing their frustration, too. Price reported that some have destroyed the video-conferencing devices that allow them to have virtual visits with friends and family.

Dallas County's chief public defender, Lynn Richardson, said some defendants had trials set just as the pandemic hit. Their cases were put on hold, and they still have no answers as to when their trials will be rescheduled.

The Texas Supreme Court recently lifted a ban on in-person jury trials so long as county administrative judges submit an operating plan for conducting jury proceedings. The details of this plan and the timeline of implementing it were the focus of the at-times tense commissioners court discussion. 

Collins is working through the details with other judges on how to ensure a safe place for jurors and, at the same time, a fair trial for defendants. A major issue is having enough space to seat a large socially distanced juror pool. 

Collins explained they have one grand jury in place now and are working on getting four new grand juries and panels for January. The rooms typically accommodate 593 potential jurors, but only 112 with social distancing protocols. She said they plan to summon 1,000 people a day and will rotate them in and out to get 100 people for four more grand juries.

For criminal cases, once a jury has been selected and a trial begins there are other issues like making sure a defendant can sit close enough to their lawyer and speak privately; plexiglass might allow them to be closer, but then they can’t communicate. Also, if the jury needs to leave the courtroom, they need to be able to wait in a room that is large enough for them to sit 6 feet apart. That room will need to be another courtroom, meaning they can’t hold as many cases as they normally would. 

Collins said they were “pretty close” to completing a plan that can hopefully be implemented in time for trials to resume in November. 

Another big complication is the physical act of selecting jurors who are wearing masks.

“We’ve been working with the defense bar to talk to them about their concerns with holding trials during a pandemic,” Collins said. “One of the biggest concerns is they want to see the whole face. They want to see how the person is looking at their client, how they’re looking at the lawyers and stuff like that.” 

Assistant County Administrator Gordon Hikel agrees with Collins, saying that the ability for a lawyer to see a juror's face, body language and reactions to questions during jury selection is too important in a criminal trial. 

The problem is summoning jurors into a room and asking them to go without a mask during a pandemic in an area where cases are trending up. County Judge Clay Jenkins pointed out that you actually can’t mandate that, although Collins stated that a courtroom judge could. Regardless, conducting voir dire with a masked juror pool is setting up for an easy appeal, something that, Hikel said flatly, no one is interested in doing.

In order to allow defendants their day in court, administrators have to find a way to make this all work. 

When Jenkins asked about virtual jury selection, Collins said other courts around the state have used this for civil matters and problems have often occurred, such as potential jurors just getting up and walking off-camera. They could be doing any number of things, like looking at their cell phone, and the judge or lawyers would have no way of knowing. 

Richardson told the commissioners court that she’s been on calls with other public defender groups across the nation for suggestions on how to get defendants their day in court safely and judiciously. She reiterated the importance of being able to see the facial expressions and body language of potential jurors. 

Judge Collins is planning on ordering enough personal protective equipment for potential jurors, including clear face masks and face shields so that their faces are visible. 

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With that and a slew of other measures, like strategically placed microphones that will have disposable covers, they hope to resume jury trials, although at a slow pace, next month.  

Richardson made one last request before moving on to the next agenda item. 

“I want to remind everyone that there are people sitting in jail who have every right to a trial and want a trial,” Richardson said. “Because of COVID-19, people are sitting in jail.” 

Judge Collins and Hikel hoped they would be ready to present the full plan at the next meeting, which is scheduled for Oct. 20.

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