June and July saw courts across the country struggling to resume in-person proceedings, with more than a few coughs and hiccups along the way. Courthouses opened only to close days later when an employee fell ill. And several lawsuits alleging that COVID-19 safeguards are either absent or unlawfully lax added to the judiciary’s unprecedented challenge of constitutionally resolving pressing court business in the middle of a public health crisis.
Despite these headwinds, courts in most jurisdictions are pressing ahead with carefully crafted plans to reopen courthouses in some fashion. In-person jury trials have resumed in several jurisdictions, some conducted remotely, while in-person proceedings on critical matters (child support requests, arraignments, protective orders) are taking place via a combination of social distancing, sprays, wipes, and plexiglass barriers. Technology is playing a large role in every court’s operating plan.
Reopenings Meet With Illness and Litigation
Everyone, it seems, is aware of an attorney or judge or court officer who has tested positive for COVID-19, likely having encountered the novel coronavirus on courthouse premises.
In Cook County, Ill., 54 courthouse and law enforcement employees — including several judges — have tested positive for COVID-19, according to a July 17 announcement from Chief Judge Timothy C. Evans.
A pair of federal courthouses in Georgia closed indefinitely on July 15 after a court security officer tested positive for COVID-19.
North Carolina court administrators said July 21 that a court employee in Burke County recently tested positive for COVID-19, though the courthouse will remain open.
Similar incidents are taking place in courthouses in every jurisdiction, as total COVID-19 infections soar above 4 million in the U.S.
These incidents raise the question: Are courthouses safe enough to accommodate even a limited amount of in-person business? If not, why not? According to some attorneys, courthouses are not doing all they can to make their premises safe as they reopen for limited in-person proceedings. The source of the problem, they allege, is that local courts are not faithfully following existing guidance from court administrators and public health officials.
In July, a labor union representing 1,500 court officers in New York state filed a complaint in federal court alleging that the COVID-19 safety measures in the New York court system were so inadequate that they constituted an imminent danger to the health and safety of persons who worked in, and used, courthouse facilities. Quirk v. DiFiore, SDNY, No. 20-2057, complaint filed July 1, 2020 (PDF).
The plaintiffs alleged in Quirk that New York officials failed to adequately sanitize courthouse premises, failed to provide court officers with adequate personal protective equipment, and failed to adequately train court officers in the proper use of personal protective equipment. As a result, the state has “created a breeding ground for the spread of COVID-19,” the complaint alleged.
Public defender organizations in New York City also filed a complaint challenging New York City’s courthouse reopening procedures (PDF). The defender groups alleged numerous health and safety deficiencies in courthouses they had visited, among them:
- failure to screen all persons entering courthouses (including temperature checks);
- failure to conduct daily screening of courthouse employees prior to entry;
- observed failure of court officers to wear masks;
- improper use of masks;
- inadequate ventilation of rooms holding incarcerated individuals awaiting court hearings;
- inadequate and insufficient plexiglass dividers; and
- lack of adequate social distancing and traffic flow measures in several courthouses.
The public defenders noted that a large portion of their clients come from demographic groups that have been shown to be particularly at risk of death from COVID-19.
Potential Jurors Support Virus Countermeasures
Among the general public, many people have a high degree of concern about reporting for jury service right now, according to the June 2020 State of the State Courts in a (Post) Pandemic World (PDF) commissioned by the National Center for State Courts. In fact, the survey indicated that respondents were more comfortable going out to a restaurant than reporting for jury duty or serving on a jury. Sixty-seven percent of respondents said that they would feel more comfortable if masks were required of all courthouse visitors; 76 percent supported courthouse coronavirus tests, and 74 percent supported temperature checks for courthouse visitors.
One important takeaway from the survey is that assembling jury pools representing a fair cross-section of the community will be a challenge. The pandemic, it appears, has put disproportionate stress on older community members, making jury service more challenging. Older people have relatively greater concerns than younger age groups about health risks posed by courthouse visits, and they are also less likely to have access to technology that would permit remote participation in jury trial processes.
Timely Justice in a Safe Environment
Notwithstanding the uncertainties surrounding the current public health climate, extending continuances on cases set for trial is not a palatable option. Criminal defendants, particularly those in incarceration, have a constitutional right to a jury trial. And judicial backlogs have grown throughout the summer, heedless of the virus. These factors are driving courts to innovate and forge ahead with re-calibrated plans to deliver essential judicial services to the communities they serve, albeit at some personal risk to judges, lawyers, and court personnel involved. For example:
- In Alaska, the state supreme court on July 28 authorized a pilot project to conduct jury trials in capital cases by videoconference (PDF).
- In Arizona’s Maricopa County, where jury trials resumed Aug. 3, Presiding Circuit Court Judge Joseph C. Welty’s July 29 order (PDF) combines health screening, social distancing, and increased sanitation practices on courthouse premises, with online processes such as remote juror screening to create an as-safe-as-possible environment for jury trials.
- In North Carolina, the state supreme court issued an emergency order on July 15 spelling out health safeguards that must be in place inside all state courthouses, while extending the moratorium on jury trials until Oct. 1.
- In New York, in-person jury trials resumed in late July, albeit in re-designed, socially distanced courtrooms and courthouse premises.
- The Georgia Supreme Court issued revised guidance on COVID-19 safeguards (PDF) that must be in place at all courthouses, adding that “no court may compel the attendance of any person for a court proceeding if the court proceeding or the court facility in which it is to be held is not in compliance with this order.”
- On July 29, the Massachusetts Supreme Judicial Court issued health and safety protocols (PDF) requiring all persons using courthouse premises to wear a facemask and submit to COVID-related questioning at temperature checks at the courthouse door.
Nearly all courts called for the use of technology to supply essential judicial services to the maximum extent permissible under the law.Many believe that technology-based innovations and lessons learned this summer will bring permanent change to the legal profession. As legal futurist Richard Suskind contends in his article The Future of Courts, the COVID-19 pandemic has swept aside old assumptions about how courts should operate and in the process presented the U.S. legal system with an opportunity to create a judicial system that truly allows everyone, regardless of education or financial means, to live under the rule of law.