According to information from the American Bar Association (ABA), judges around the country are concerned reopening courts will struggle to overcome some of the impacts of the health crisis.
One judge, Nannette Jolivette Brown, the chief judge of the U.S. District Court for the Eastern District of Louisiana, said there are lessons to learn from the fallout of Hurricane Katrina. In the wake of that disaster, she said finding a diverse jury pool proved challenging. As such, she called on litigators to consider ways to avoid a similar fate.
During a recent webinar sponsored by the ABA, Brown said it is important not to exclude jurors simply because they have pandemic issues. “Be thoughtful about what you’re asking,” Brown said. “Make sure that you’re following up and you’re not just eliminating people from the jury pool because they may be of a certain age or they may be in a high-risk category or they may be taking care of children… You have to get a fair cross-section of the community.”
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"The Maryland court system announced Friday its reopening plan that outlines how courts across the state will gradually return to full operations throughout the next several weeks and months.
Per the ABA, Judge Heather Welch of Marion County Superior Court in Indianapolis said she concurred with Brown. “It’s going to be critical that you ensure that you have a cross-section of the people in your community, so that there are jurors of the litigant’s peers. While ordinarily in healthy times we get very diverse juries… we just don’t know how that will happen when we actually try a jury trial.”
Recently, the Administrative Office of the U.S. Courts published guidance for reopening the court system, with a heavy emphasis on local decisionmaking based on individual circumstances. According to the office, the Federal Judiciary COVID-19 Recovery Guidelines ask courts to consider “exhaustive factors” as they move through four phases.
Administrative Office Director James C. Duff said a group of court executives and chief judges helped create protocols for safely resuming jury and trial proceedings: “Issues such as testing potential jurors, social distancing considerations during jury assembly, voir dire, jury deliberations, and many others are being considered.”
Similarly, Melanie Gilbert, chief of the Facilities and Security Office within the Administrative Office of the U.S. Courts, per the ABA, said it will likely be a challenge to keep everyone safe as in-person trials restart. Precautions might include “limiting the number of people in elevators and taking temperatures of everyone as they enter the building.”
Ultimately, courts will work toward normalizing proceedings, with social distancing practices, six-foot buffers, deep cleaning and facemasks as part of the transition. “The health and welfare of each Judiciary employee, contractor, and member of the public that enters our facilities should be paramount in the decisions that are made as these guidelines are implemented,” reads the guidance. “Because each state and municipality is in a different posture in the fight against COVID-19, each circuit and district will have to make local decisions on operational status based on the jurisdiction’s current COVID-19 case count and local stay-at-home and quarantine orders. This national guidance is designed to help facilitate decision-making at the local level.”