Strangers packed into jury boxes. Witnesses flown in from around the country. Muffled testimony from behind masks.
The whole idea of holding jury trials during a pandemic presents a huge challenge. And once again, at courthouses in Washington and Maryland, they’ve been halted.
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“The saddest part of this is that courtrooms we were up and running. We were trying cases. And now we’re shut down again,” said John McCarthy, the top prosecutor in Montgomery County.
Many defendants have grown weary, especially those with a strong defense to their charges.
“I know there’s not a lot of public sympathy for these guys sitting in jail,” said Mark Anderson, a Maryland defense lawyer and former prosecutor. “But at the same time, they might not have done it.”
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The big hope at courthouses mirrors that in the communities around them: that the rapidity of the omicron variant’s spread might be matched by how quickly it fades away. Thus far, the trial moratoriums extend from three to six weeks.
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Still, even a relatively short pause will send huge waves of challenges into systems already burdened by case backlogs from previous trial shutdowns. Defendants postponed this month might not enter a courtroom until at least the fall.
“The courts have to take certain steps — we all understand that,” Maryland defense attorney Kush Arora said. “The consequences of these delays are still very real for my clients.”
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In late December, Maryland’s top judges moved to halt new jury trials when it became clear that omicron “was coming, and it was coming in a big way,” said Chief District Court Judge John Morrissey. The halt lasts until at least Feb. 8.
At federal courthouses in Maryland, Chief Judge James Bredar suspended jury selection until at least Jan. 24, citing a “significant upward trajectory” of test positivity rates. His judicial order also reiterated courthouse access policy, generally forbidding entry for those who are unvaccinated or unable to show a recent negative test for the coronavirus.
In the District, federal trials are suspended for at least three weeks.
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“The health and safety of trial participants and others” in the courthouse was critical, Chief Judge Beryl Howell wrote. At D.C. Superior Court, trials are off until at least Feb. 11.
In Virginia, jury trials have run in limited fashion during much of pandemic.
Now, given omicron’s spread, the Virginia Supreme Court could move unilaterally to suspend jury trials as it did for part of 2020, but it had not done so as of this week. Circuit-level chief judges also could halt trials, but none had taken that route in Fairfax County, Arlington or Alexandria.
Visitors to federal courthouses in Alexandria and Richmond now must wear upgraded masks — N95 or KN95′s. Those who arrive without the higher-protection masks will be given one at the courthouse door.
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And while omicron has not summarily postponed trials, concern over the variant played a key role in delays for three trials about to start in Alexandria federal court.
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“One of the defense lawyers had a child test positive today,” defense lawyers wrote in a recent filing for one of them, “and must now quarantine in the family home and hopefully avoid contracting the virus until that child returns a negative test. That same lawyer was exposed in a professional setting last Friday to a second person that tested positive for the virus on Saturday.”
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Around the region, courthouses never totally closed during the pandemic — even during the first wave of the virus. The challenges faced in Maryland were emblematic of those gripping courthouses across the region and the nation.
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Hearings in the state continued for critical matters like bond reviews for those recently jailed and restraining order requests filed by domestic violence victims. Everyone learned to talk on Zoom.
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“What was clear to us is that we needed to retrofit all of our courthouses,” said Morrissey. “We had to really get all of our technology [and] make sure that it was working correctly, but also the more mundane things like hand sanitizers and plexiglass.”
It wasn’t always smooth. For hand sanitizers, Morrissey said, courthouses received huge containers from the state’s emergency management agency.
“Then we had to try to find smaller bottles to distribute it out because no one could really lift the 10-gallon bottles,” he said.
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But through various court orders — more than 70 in all in Maryland — officials marshaled forward. One big challenge: when and how to begin jury trials, which meant finding spaces big enough for the large gatherings of prospective jurors. Creativity was often required. Montgomery County officials brought in smaller crowds and spaced them apart in their two largest rooms. In Baltimore County, prospective jurors were instructed to report four miles away from the courthouse at the Cow Palace, a cavernous structure used for animals at the state fairgrounds in Timonium, before going to the courthouse in smaller numbers for actual trials.
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Trials restarted in Maryland in October 2020. But they didn’t last long.
“Almost as soon as we started jury trials, then that next wave came in and we kind of retrenched,” Morrissey said.
Maryland courthouses went another five months without jury trials before restarting them in the spring of 2021. By December, though, officials saw trouble looming. Besides the basic health metrics, court officials understood the reality of asking perspective jurors — who had largely been understanding when called for duty during previous stretches of pandemic trials — to gather as omicron was rapidly spreading.
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“We don’t want to wear out the public’s welcome,” said Maryland Court of Appeals Chief Judge Joseph M. Getty.
The halt in jury trials also will affect civil matters. Attorney Steve Chaikin, who represents a Prince George’s County car crash victim who sued another driver, just learned that his Feb. 2 trial — already two years in the making — will be delayed. And with a potential judgment topping $100,000, Chaikin said, “We keep getting dressed up and prepared for trial with no place to go.”
Jurors in a fire station, high school gym and the ‘Cow Palace.’ How Maryland first restarted jury trials
As for criminal cases, which are often resolved through plea negotiations, one natural byproduct of pandemic delays it that opposing sides try to gain leverage.
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Anderson, the Maryland defense attorney and former prosecutor, said that in less serious cases many defendants are getting a “covid discount” during plea negotiations because prosecutors are trying to reduce case backlogs without the threat of a looming trial.
“Obviously, that can be jurisdictional-dependent, but I see that playing a large role in negotiations,” Anderson said.
Defendants charged with very serious crimes, who face strong evidence against them, don’t necessarily mind the delays because there’s a chance witnesses may move or their memories might fade.
“The guys who know they’re probably going down, they’re okay with sitting there,” Anderson said. “Lots of cases decay with time.”
But the attorney noted how delays hurt clients who have a strong defense that they’re willing to present in court. Some defendants become more willing to take a guilty plea if it gets them a “time served” sentence.
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“That guy might take it so he can go home,” Anderson said.
McCarthy, the head prosecutor in Montgomery, agreed that as cases age, the advantage tends to swing to defendants because of possible difficulty rounding up witnesses or their memories fading.
As for the pandemic’s effect on plea negotiations, McCarthy said there are “no edicts, no policies” to offer more attractive deals to reduce caseloads.
“There’s always been a multitude of factors involved in these discussions, and there still are,” he said.
McCarthy added that while delays can prolong plea negotiations, when jury trials restart, those charges ultimately will have to move one way or another.
“When you don’t have a trial looming, it’s easier for a defendant to put off his decision,” he said. “That is a big decision for any human being.”
Justin Jouvenal, Rachel Weiner and Paul Duggan contributed to this report.