Jury’s still out: Attorneys raise questions about plan to resume jury trials

While officials from the Jackson County Circuit Court are eager to resume jury trials this month, questions from attorneys abound about the wisdom of doing so during a pandemic and the logistics of preventing the spread of COVID-19.

In a Sept. 9 remote town hall held by the Kansas City Metropolitan Bar Association, Presiding Judge David M. Byrn fielded multiple questions, including what attorneys at high risk of contracting COVID-19 should do if their cases are up for trial. The judge also was asked if he was familiar with recent warnings from Kansas City-area hospital officials that the metro area may become the country’s next COVID-19 hotspot.

The questions came in response to the court’s plan to resume both civil and criminal jury trials Sept. 21 in Independence and Oct. 5 in Kansas City.

Court officials are eager to resume trials in order to clear a backlog of cases put on hold by the pandemic. Byrn said the court could hold as many as three to four trials a week to catch up.

Like many things right now, however, the court’s plan to resume trials may change in response to changing conditions, Byrn said.

Under the Missouri Supreme Court’s operational directives for reopening, the court must move to an operating phase with limited in-person proceedings if a court employee working in a court facility tests positive for COVID-19, he said.

The judge also noted that courts have remained open since the beginning of the pandemic in March. Courts must balance their constitutionally mandated duties with protecting public health, he said.

“We believe we can go forward with this plan to resume jury trials, which is the last big piece of the puzzle of what we have not yet been able to do,” he said.

The court has overhauled its jury selection process, from the summons process through voir dire; implemented more cleaning of public spaces; and worked to allow for social distancing during trials, Byrn said.

Policies already in place requiring all individuals to wear masks and undergo COVID-19 screenings to enter courthouses will continue, as will social distancing requirements, he said.

In certain situations, however, Byrn said judges may allow individuals to not wear masks in courtrooms.

Because jurors will be spread out into courtroom galleries for trials, visitors and guests generally will not be able to watch proceedings in those courtrooms, Byrn said.

Attorneys will need to make advance arrangements with the court to secure another space to watch remotely, he said.

He encouraged attorneys to be ready to go to on their trial dates, saying judges are unlikely to grant continuances.

Prospective jurors, however, are now given the option to seek postponement if they are unable or unwilling to serve, he said. On the day of the town hall, the court selected a grand jury in Independence using its new process, he said.

“What we’ve found with the grand jury is that a surprisingly low percentage of people asked to be postponed or excused for COVID-19-related issues,” he said.

Byrn said three separate groups of 40 to 50 prospective jurors will be brought into the jury assembly room for juror qualification on Mondays and Tuesdays.

Those groups will be divided in half and rerouted to courtrooms for voir dire. Byrn said the court has hired a vendor to sanitize jury assembly rooms in between groups and also courtrooms twice a day during trials.

Byrn said juries will not be using deliberation rooms but instead will deliberate in courtrooms.

Nearly 180 attorneys joined the remote  town hall, according to KCMBA, and they brimmed with questions: How will sidebars be conducted? Will criminal defendants still be brought into the courtroom out of view of the jury? Will victims still be permitted to attend criminal proceedings?

Byrn answered more than a dozen questions during the course of the 80-minute session, which ran longer than scheduled. KCMBA President Athena Dickson, who moderated the event, said KCMBA would follow up on remaining questions that were not addressed.

One attorney asked if witness rooms will be available for attorney use, and if they would be cleaned regularly.

Byrn said the rooms will be available. But while the court is taking responsibility for cleaning some spaces, the county is responsible for “some cleaning and sanitizing” of other areas that include those rooms, he added.

“‘Some’ probably is the operating word in that statement. You can read between the lines on that one,” he said, noting that adding witness rooms to the list of routinely cleaned spaces is a good idea.

Another attendee asked what attorneys with conditions that put them at high risk for contracting COVID-19 should do if they have a trial coming up. Byrn recommended that those attorneys discuss their situations with judges assigned to their cases.

“It’s nobody’s intention to pry, but there may be a little additional information we need,” he said.

Using a hypothetical, Byrn said that if the high-risk attorney is part of a larger trial team and has not played a large role in the case, the judge may ask whether other attorneys on the team could try the case.

When asked about Kansas City becoming a COVID-19 hotspot, Byrn said he routinely monitors local and national news and speaks with county health officials.

He said it appeared that new cases in Kansas City spiked in Mid-July, weeks after Independence Day, so he is keeping an eye out for the impact of Labor Day weekend.

“I think mid-September is going to be a real critical time for all of us,” he said. “We’ll see what happens after people went out on Labor Day. We’ll see what the impact is on opening schools.”