Some pandemic-related efficiencies here to stay, Douglas County District Court chief judge says

Jury trials still far out

photo by: Screenshot, Douglas County Kansas District Court

Shown clockwise from top left in this screenshot from first appearances on Friday, May 22, 2020, are the courtroom in the Douglas County Jail, Douglas County District Court Judge Sally Pokorny and court reporter Mary Kay Howe. The hearing was livestreamed on the Douglas County District Court's YouTube page. (This screenshot was taken with permission from the court. Any recordings or scerenshots without prior approval from a judge are forbidden.)

Although the global coronavirus pandemic has halted some court proceedings indefinitely and people awaiting jury trials are still looking at a distant horizon, some newfound efficiencies are likely here to stay.

As much of the county has moved toward reopening and resuming at least some sense of normalcy, on one hand, the Douglas County District Court has kept a slower pace; on the other, it’s leapt into the 21st Century with unprecedented use of technology. Despite some early roadbumps, Chief Judge James McCabria said he thinks videoconferencing will continue.

“I see it as changing that landscape forever going forward,” he said.

As local judges and attorneys have become accustomed to handling business via the online meeting platform Zoom — as well as recently adding a YouTube channel, so members of the public can view live hearings without requesting meeting information beforehand — McCabria said he thinks the court has seen the benefits and practical value of what the new format can do.

Even as the court does begin to hold some in-person proceedings — possibly in June, to a limited degree, and on a more regular basis starting in July — McCabria said there’s still the option for some hybrid hearings. For instance, it could be an option if a defendant and counsel want to be present in the courtroom but the judge or the prosecutor wants to attend via Zoom.

“I don’t know that we’ll ever return 100% to traditional because now we see that there’s some new ways of doing things that we had not thought of before,” McCabria said.

“But certainly in that transition period, as a way to reduce the number of people who appear, there could be that hybridization of some appearances via Zoom, some in the courtroom. And we’ll just continue to look at ways to make that assist us with managing COVID, and going forward in the future.”

When in-person hearings do resume, McCabria said there will be several precautionary measures in place. As the Journal-World has reported, anyone entering the courthouse will be subject to a temperature check and screening questions for COVID-19 risk factors. Visitors will also need to wear masks, and signage in the hallways will indicate distances of 6 feet.

There will be visible changes in the courtrooms, too: plexiglass barriers will allow some separation between defendants and counsel, and plastic shields will protect judges’ benches, counsel tables and the witness stand from respiratory droplets, McCabria said. Court reporters will sit a little farther away from the witness stands.

There will be no shared podium in the courtrooms; instead, counsel will address the court from their tables, McCabria said. He also said he’ll encourage any short proceedings to be done standing, and shared surfaces will be cleaned and disinfected between hearings.

Skip Griffy, longtime president of the Douglas County Criminal Defense Bar, said he agrees that the use of technology in the courts has changed the way things will be done from now on. He said although some of his colleagues tend to be set in their ways, the situation surrounding the pandemic has caused people to be more flexible and creative, while simultaneously protecting constitutional rights.

“Therein lies the real test of this — how can we make this work so that people’s rights in our courts are not relegated to second chair?” he said.

Jury trials: Maybe in the fall

Many court hearings can be handled remotely or with just a few people in a courtroom. Jury trials don’t allow for that possibility.

For instance, in a recent high-profile case, court staff packed more than 100 potential jurors into a courtroom for multiple days of jury selection. But like concerts, big sporting events and other mass gatherings, the future of jury trials is still hazy.

Beyond just the possible anxiety of being that close to strangers in a new socially distanced world, McCabria said there is another concern: potential jurors need to be able to focus on what’s happening in order to be fair to both sides, in both criminal and civil contexts.

“I don’t know that you have a fair jury panel when you have people who are distracted by their own health and safety concerns,” he said. “… We need to be able to get a fair cross-section of the community, and until the community is comfortable being in those spaces, I think having jury trials is a challenge.”

McCabria said different districts have talked about using other facilities, such as school gymnasiums, but to him that raises the same questions of fairness.

“Do you have the same opportunity to have a jury analyze your case if they’re all sitting in the rafters and you’ve got a witness down on center court?” he said. “I don’t think that’s the same dynamic of a fair trial that you get if you have the traditional setting.”

In addition, the district courts can’t just decide that they will resume jury trials. They must await guidance from the Kansas Supreme Court.

McCabria said Wednesday that he believes the soonest jury trials might return to Douglas County would be in September. He acknowledged that there is going to be a “gigantic backlog” of jury trials whenever they do resume.

Defendants in criminal cases and parties in civil cases also have the option of requesting a bench trial in which a judge would hear all the evidence and render the verdict.

“There’s a variety of decisions that go into whether people think it’s to their advantage to have a bench trial or jury trial,” McCabria said, but he noted that the court would be willing to schedule bench trials. “… The judges are open to all sorts of ideas.”

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