DENVER- Courts in Denver will resume calling jurors for trials beginning on Aug. 3, with an expectation that distancing guidelines and space restrictions will result in a diminution of pools.
“Juror hardships related to the pandemic may impact appearance rates,” wrote Chief Judge Michael A. Martinez in an updated guidance issued on Sunday. “Initial jury calls will be used to develop a new baseline for the number of jurors to be summoned.”
Martinez’s 33-page outline of procedures also contains the plan for future phases beyond the end of August. A Virtual Jury Trials Committee began working in May to develop statewide recommendations for in-person and remote trials, and the Second Judicial District in Denver is reviewing those conclusions.
There have been two jury trials already on July 20 and 21, which Martinez deemed “successfully completed.” The upcoming August phase will feature jury pools of 75 for Denver District Court, with some jurors remaining in the assembly room and watching proceedings in the courtroom via video stream. County court juries will have up to 90 people called and juvenile court will have up to 75.
Denver resumed issuing summonses on July 1, which is a shorter-than-normal notification time to allow for “information gathering.” Each jury call will feed three or four criminal trials and two or three civil trials.
“If space allows after staging with 6’ distancing, limited seating or standing room will be provided for members of the public to observe the proceedings,” Martinez wrote. If there is no room for the public, there will be a link posted — physically outside the courtroom — for how to live stream. A judge may turn off cameras and conduct an audio-only feed at their discretion.
While masks are generally required, the exceptions are for witnesses testifying behind plexiglass or with a face shield and for interpreters. Jury deliberations will happen in a neighboring “buddy courtroom” set aside for this purpose.
Some attorneys, after reading the guidance, expressed a great deal of concern about their ability to do their jobs and for jurors to be willing to do theirs.
“In normal times, I would have given anything to sit on a jury panel,” said Colleen Kelley, a partner at Wolf Law, LLC in Denver. “Going into a crowded room with strangers is the last position I would want to be in right now. Frankly, anyone paying attention to any public health guidelines would avoid this type of situation at all costs.”
She said that she watched one of Denver’s recent trials over video streaming and it was “bizarre”: jurors were spread out, there was no ability to see facial expressions and she could inadvertently hear the defendant and their attorney confer over the microphone.
The physical spacing raised the eyebrows of Charles L. Fife of Fife Luneau, P.C. He called it “contrary to case law,” referencing a 2018 Court of Appeals decision that examined a judge’s removal of the defendant from a courtroom during the testimony of children. The appellate panel threw out the conviction, saying the man had a right to “exert a psychological influence on the jury” by having his reactions observed.
One lawyer, speaking on condition of anonymity due to a fear of upsetting the judge who wants to proceed with their August trial, said that “I’m certainly more afraid than I otherwise would be, obviously. I guess my personal safety is less important than my client’s justice. So I’m willing to kind of sacrifice some of that.”
The lawyer added, “My bigger worry is that I can’t get justice for my client in this environment with these kind of restrictions.”
Jason Wesoky, a civil litigator in Denver who is chair of Colorado Trial Lawyers Association’s judicial committee, explained that insufficient numbers of jurors could lead to the postponement of trials at the last minute. Such continuances could be costly to law firms, particularly when they bring in expert witnesses who may charge thousands of dollars to cancel appointments and testify.
Moreover, a juror potentially risking their health may feel even more irked with the plaintiff of a civil case for not settling out of court and being responsible for the trial happening.
“When a plaintiff walks into a courtroom, there is already a bit of the deck stacked against them because the juror’s going to blame the plaintiff for the juror having to come,” Wesoky said. “Well, that is obviously put on steroids in this situation.”
Each of the 22 judicial districts has adapted to pandemic guidance that the state Supreme Court issued beginning in March. In U.S. District Court for Colorado, trials are on hiatus until Sept. 4., with the exception of “pilot trials.” Jurors in Denver can postpone their service owing to “COVID-19 related hardships” by six to 12 months. Those include if the prospective juror is immunocompromised or over age 65, if they live in a household with at-risk people, or if they are a healthcare worker.
In June, the Supreme Court allowed prosecutors to ask for up to a six-month delay to criminal trials due to the coronavirus pandemic. Colorado law, following the Sixth Amendment’s guarantee of a speedy trial, requires proceedings to begin within six months of a not guilty plea.
The lawyer with concerns about their upcoming trial date said that in Colorado counties with few or no cases, it would be easier to resume trials. In other jurisdictions, it would be ideal to have rapid testing of jurors when they report for duty, and to dismiss those whose results for COVID-19 are positive or inconclusive.
But even if jurors are healthy, the process itself could be unhealthy for the litigants.
“As we all know, much of communication is noverbal and it is almost impossible to hear or see that nonverbal communication with everybody masked up,” the attorney said. “The practicality of doing a trial and being able to advocate either for your plaintiff or for your defendant in front of a jury when they can’t see facial expressions, they can’t assess the credibility of witness…you can’t tell whether or not the jury’s bored or fed up with this line of questioning because you can’t see their facial expressions.”
WBUR reported last month that face masks could actually create a fairer trial by preventing jurors from making false assumptions about a witness from their facial expressions.
“We have a strong cultural assumption that we can learn something about a person’s truthfulness if we look at their face,” Julia Simon-Kerr, a law processor at the University of Connecticut, told the station. “But the reality is that there is no evidence to support that assumption.”
However, Adam M. Dinnell, a lawyer with Houston-based firm Schiffer Hicks Johnson, worried that jurors, for example, might react negatively to a witness not wearing a mask in a video deposition. Kelley added that the simple presence or absence of a mask for defendants may even affect jurors’ thinking, including their perceptions of “believability.”
“How does a jury judge a defendant who is wearing a mask? Can you imagine a criminal defendant being accused of crime that involved a wearing a mask (a robbery or rape for example), only to have to sit through their trial wearing a mask?” she asked.
In a statement, Denver District Attorney Beth McCann said that her office’s attorneys were “ready, willing and able to resume in–person jury trials thanks to the careful and thorough preparation.”
Michale Karlik for Colorado Politics