No Pandemic Exception in the Constitution – Courts During the Pandemic

Our courts have had to innovate quickly to keep up with the continuously-unfolding challenges of the COVID-19 pandemic. Judge Karen Caldwell of the District of Kentucky likened the challenge to “building an airplane while you’re flying it.” Judge Caldwell reopened her courtroom to jury trials early in the wake of initial court closures.

Recognizing the continued danger of resuming jury trials, Judge Caldwell is now helping to reinvent jury trials to proceed safely to continue the application of fair justice. From jury selection to deliberations and handing down verdicts, every aspect of jury trials needs to be examined and reinvented for the safety of everyone concerned.

The District of Massachusetts is working to keep everyone safe while allowing “the work of the court to go forward.” The court had been conducting many proceedings via video or telephone since mid-March. Judge Dennis Saylor says that “the constitution and laws of the United States do not permit jury trials to proceed by video.”

Other courts have cancelled jury trials altogether for the moment. Hidalgo County, Texas District Court will reevaluate returning to jury trials in December. The Northern District of California has delayed jury trials until at least October 1^st and hearings are being conducted remotely.

Returning to jury trials is not without complications. One juror in Great Falls, Montana was held in contempt of court for refusing to wear a mask. By refusing to take precautions to protect others, the juror spent 24 hours in a detention center on the same day the sheriff announced a 55-person outbreak at the facility.

Cascade County judges had previously met with the sheriff and agreed that deputies would not be put in the position of having to arrest citizens for failure to wear masks. But the judge in question was substituting and was unaware of the agreement.

While the path to safe jury trials may not be clear, our courts are working hard to reinvent practices and processes during the pandemic.