“We were just getting rolling,” said Montgomery County Circuit Administrative Judge Robert Greenberg.
As in the previous effort, a central challenge to holding trials during a pandemic is the large gatherings of prospective jurors. With two spacious rooms, Montgomery’s courthouse is relatively well laid out for the purpose.
Not so in places like Baltimore County, where prospective jurors last fall were instructed to report four miles away at the Cow Palace, a cavernous structure used for animals at the state fairgrounds in Timonium that was available only four days a week. This time around, court officials have secured a five-day-a-week spot just blocks from the courthouse: an American Legion hall.
“We’re excited and ready to go,” said Baltimore County Circuit Administrative Judge Ruth Jakubowski.
The reboot of jury trials is welcome news to hundreds of criminal defendants who have been unable to resolve their cases. Those free on bond, with charges hanging over them, can be stymied in getting a job. Those held behind bars have had it worse, staying largely confined to cells because of covid safety measures.
“The emotional strain inside jails has been a terrible effect of the pandemic,” said Allen Wolf, the chief public defender in Montgomery County. “Inmates are more isolated and more worried. They’re reaching their breaking points.”
While the U.S. Constitution affords defendants the right to a speedy trial, Wolf said, that must be balanced against the reason for a delay. A deadly virus, he notes, has generally been considered a valid reason.
“But that doesn’t mean defendants haven’t suffered tremendous pain,” he said.
Wolf and others say the backlog will not be over any time soon. Maryland’s court calendars reflect this, with some trials now being slotted in for 2022.
Elsewhere in the D.C. region, the U.S. District Court in Washington is tentatively set to hold its first criminal trial May 17. The court has proposed holding up to three criminal trials at a time — on alternating floors of the six-story courthouse — with socially distanced seating in courtrooms. Clear masks and other protective measures will be required.
D.C. Superior Court resumed holding jury trials in criminal cases April 5 on a limited basis. No more than one jury trial can be in session on a given day, and no more than two jury trials can begin in the same week. Officials have not announced a timetable for ramping up the number of jury trials conducted simultaneously.
In the first days of jury trials in criminal cases in early April, court officials surveyed people reporting for jury duty and found “over 97 percent” of them “reported feeling very safe in courthouse,” spokeswoman Jasmine Turner said, citing health protocols that were put in place.
The court’s Civil Division plans to resume jury trials next month on a similarly limited basis. However, most civil proceedings not involving juries will continue to be held remotely “when appropriate” until further notice, the court said.
Alexandria local court has held a handful of trials during the pandemic, but some defendants have still spent well over a year waiting for a day in court. Charles Ford went to trial in March, almost two years after he was accused of stabbing a man on the street during a fight over a woman. A trial in November was cut short when one juror began experiencing covid-like symptoms, said his attorney Sebastian Norton. Meanwhile, Ford had gotten covid himself while waiting in jail.
Ford testified that he had defended himself in the fight but did not stab anyone. The jury found him guilty of misdemeanor assault and battery, which carries a maximum sentence of 12 months’ imprisonment and, under Virginia law, an effective active maximum sentence of six months. He served well beyond what he was sentenced to. “Almost four times the sentence is what he served,” Norton said.
At the U.S. District Courthouse in Alexandria, Judge Rossie Alston said there was only one jury trial within the past year. Before potential jurors arrived, they were asked to fill out extensive questionnaires. That helped limit the jury selection to three hours.
“It’s a very, very good process,” Alston said.
Back in Maryland, circuit courthouses never totally closed during the pandemic. Judges held virtual hearings, including for guilty pleas, while a slimmed-down in-person staff kept paperwork flowing.
Covid or no covid, about 90 percent of Circuit Court criminal cases end in plea deals without a trial, Montgomery County State’s Attorney John McCarthy said. Such cases have continued through virtual plea hearings.
“We have been moving cases through the pandemic,” McCarthy said.
As for the trial delays, prosecutors say, they can help some defendants.
“Cases don’t get better with time. They’re not like wine,” McCarthy said. “Memories fade; witnesses move away or die. Victims may become less enthusiastic about testifying. A lot of these guys with pending trials know this.”
Montgomery enjoyed good if short-lived success when it restarted jury trials in October. After jurors returned, no cases of covid or covid-spread were reported. And that included anything reported back to the courthouse, as jurors were asked to do.
The county was able to complete 14 civil and criminal trials. But as temperatures fell, covid cases rose — soaring past 1,700 a day in mid-November in Maryland, when the judiciary pulled the plug on jury trials.
This time around, the numbers are higher — an average of about 1,000 new daily cases compared with 600 during the Oct. 5 restart — but the trends are much better. Just two weeks ago, Maryland was averaging about 1,400 new daily cases. With nearly half the state’s population having received at least one vaccine shot, court officials have reason to believe trials are here to stay.
For now, plenty of pandemic precautions are still in place.
In Montgomery, masks are required for judges and attorneys. Same for potential jurors, who are arriving in smaller numbers to the courthouse’s spacious “jury lounge,” large enough to take in 400 candidates in pre-covid times.
On Monday, 55 prospective jurors arrived. Attorneys there for an assault case selected 12 jurors, plus alternates, for a trial scheduled to last two days.
“It went as smoothly as it did in October,” said Vincent Weaver, Montgomery’s jury commissioner.
The candidates had checked in by speaking to a clerk behind a plexiglass shield and were directed to marked seats scattered at least 10 feet apart. Then, rather than going to individual, smaller courtrooms for the winnowing process, prospective jurors remained in the large jury lounge.
Candidates who wanted to address private matters followed a judge into a glassed-in room within the jury lounge instead of huddling closely in front of a judge and attorneys. Attorneys stayed in their seats, turning around to be able to listen to the glassed-in proceedings over earpieces. When the panel was selected, the jurors proceeded to their courtroom.
For the trials themselves, nine Montgomery courtrooms have been retrofitted with plexiglass barriers to help separate attorneys, judges, clerks and others. Jurors will be placed in seating that is more spread out than in traditional “jury boxes.”
Once trials start, witnesses will be given a mask exception — sort of.
Defense attorneys and prosecutors want witnesses’ faces free of cloth masks so that the jury can hear them better and see facial expressions as they judge their credibility. So witnesses will be asked to swap out cloth masks for clear masks or clear shields.
And the attorneys, who sometimes like to pace around the “well” of courtrooms while questioning witnesses, have been put on tight leashes.
“Before I begin with my direct examination,” Montgomery prosecutor Benjamin Forman asked Judge Sharon Burrell on Monday, “may I have permission to move about freely throughout the well as long as I maintain a six-foot social distance from the jurors?”
“As long as you don’t come past this line, that’s fine,” Burrell said.
The last year of online proceedings has had some benefits, Greenberg said.
“For scheduling conferences, we don’t need to have people in the courthouse — we discovered that,” he said. “We’ll retain those economies.”
Though other proceedings such as uncontested divorces will also continue online, Greenberg lamented that fewer lawyers would be interacting in person, exacerbating a trend he has seen over the past 10 years with electronic communications.
Fewer in-person connections, he said, take away from relationship-building that can help courts operate more effectively.
“We’ve always preached civility here,” Greenberg said. “If you have two attorneys who can fight all day in a courtroom and then go out afterwards, that’s a sign of a well-running courthouse.”
At a town hall held last month by Prince George’s District Court, Administrative Judge Lisa Hall Johnson and a panel of others who are overseeing the county’s specialty and bond courts outlined what a return to the courthouse would look like. They also addressed a push from community organizers and advocates, led by volunteer observers from Court Watch PG, to maintain virtual access to court proceedings.
Hall Johnson said she is committed to maintaining virtual access during the pandemic so long as the judiciary and the state Court of Appeals allow it. She did not address what virtual access might look like once the pandemic ends.
Prince George’s District Judge Robert Heffron, who oversees traffic and criminal court, said he would be in favor of permanently maintaining virtual access to bond hearings, because it allows for great participation from witnesses and other involved parties. But that decision, he said, “is going to be made at a pay grade much higher than mine.”
For now, Heffron said, there is “absolutely, positively no intention” to change the current virtual-accessibility parameters.
Spencer S. Hsu, Rachel Weiner, Katie Mettler, Paul Duggan and Ann E. Marimow contributed to this report.