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Judges and Judiciary

Jun. 9, 2020

A jury trial amidst pandemic and protest

On June 1, the Historic Courthouse in Auburn re-opened for business after being closed for two and one-half months due to the COVID-19 pandemic.

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Garen J. Horst

Judge, Placer County Superior Court

On June 1, the Historic Courthouse in Auburn re-opened for business after being closed for two and one-half months due to the COVID-19 pandemic. During the time of its closure and while our main courthouse at the South Placer Justice Center was open for limited operations, all jury trials remained suspended by order chief justice. As that suspension period ended, our court administration and staff worked to develop protocols to conduct jury trials safely with guidance from federal, state and local public health organizations. On May 28, our bench approved the "Superior Court of Placer County COVID-19 Jury Management Protocol," which cleared the way for us to resume jury trials in the county. On June 1, I was assigned a misdemeanor matter for jury trial in Department Four of Historic Courthouse. It would prove to become the county's first jury trial of the post-COVID era.

Upon receiving this trial, I was eager to prove that we could resume jury trials and restore our fundamental right to a jury trial. Criminal cases were backing up while many defendants remained in custody; civil jury trials had been continued indefinitely. After our pre-trial motions concluded, my eagerness turned to anxiety as I realized we actually were going forward under the present circumstances. Would jurors show up for service? While it seemed like many months ago, it had only been 11 weeks since the governor issued the shelter-in-placer orders and Placer County was now moving through Phase 2 of the re-opening process. Reported new cases of infections still continued within the county, and we had just learned that two inmates within the Placer County Jail had tested positive for COVID-19. Our protocols were extensive, and provided for an alternative jury selection site so that we could accommodate a large pool of people, social distancing guidelines that required jurors to be six feet apart, and an assigned custodian to ensure proper cleaning procedures were implemented. Would that be enough to keep jurors safe?

All this was happening within the context of protests throughout the country. The pain, sadness and anger felt after the death of another person of color during an encounter with law enforcement had manifested itself in ways different than I had ever seen in my lifetime. People all over America had been taking to the streets for several days to demonstrate against injustice, and it seemed that there was no indication of when it would end. As I had watched with concern over the weekend what was happening in cities from New York to Los Angeles, I soon came to realize that the protests were not just elsewhere but everywhere. I had listened to one commentator on Sunday, who eloquently spoke about a crisis of legitimacy. So many people all over the country have felt disrespected by the law, treated unfairly, and have lost their trust in the system. I pondered how this would impact our trial as I left the courthouse that Monday evening. At the time of my departure, the hallway outside my courtroom swarmed with sheriff's deputies called to our courthouse to protect the building during the demonstrations planned there that evening.

On Tuesday morning, June 2, I arrived for jury selection at the Whitney High School in Rocklin, the home of the "Wildcats." Court staff and security were already present to facilitate prospective jurors checking in; and the theater where the selection process was going to take place was furnished with tables on the stage for the parties, judge and court staff. Our United States and California flags, along with our superior court seal, were prominently displayed in front of the remnants of what appeared to be a high school stage production. As the three panels of prospective jurors arrived, I welcomed those in attendance and told them they were making history by being the first jury panels in Placer County summoned since the suspension on jury trials had been lifted. I explained the procedures we had taken to protect their health and safety during their service, thanked our staff for their diligent efforts in preparation, and told them that I would hear any hardships first individually inside the theater.

I was pleasantly surprised with our turnout. Our staff later informed me that out of the three panels of 55 we summoned, 42 were excused or deferred by jury services and told not to appear. Of the remaining summoned, 77 appeared for service and only two were immediately excused at check-in for medical reasons. Despite being encouraged to wear face coverings in the COVID-19 Information for Prospective Jurors document that was sent along with their summons, there were only a handful of people wearing masks. A single-file line, with each person six feet apart, formed into the theater for me to address any hardships. I excused several prospective jurors for COVID-related reasons, including health care workers; those who had to care for children at home due to school closure; and those who had lost their job or were financially struggling due to the pandemic. In the end, I had expected more hardships and only excused 19 of the remaining 75 prospective jurors.

As jury selection began, we called the first 32 prospective jurors into the theater based upon the random list generated after hardships. Seats in the theater had been taped off to provide for vacant seats so that people could be seated six feet apart. We had the first 32 on the list to occupy designated seats in the front. We alternated rows of seating as seats 1-8 were occupied in the second row from left to right; seats 9-16 were occupied in the fourth row; seats 17-24 were occupied in the sixth row; and seats 25-32 were occupied in the eighth row. Once we had the first 32, the remaining members of the panel were invited inside the theater to take the open seats. I excused the last few people on the random list because we did not have enough seating. I introduced the parties, discussed basic legal principles, and began the process of voir dire with the first 18.

I chose for the first time in my trials not to have the prospective jurors fill out and submit a written questionnaire. I worried about possible transmission by touching the papers, as well as the time required for copying and distributing them to the court and parties. Two years earlier I had been called to jury duty in another county and observed a judge question jurors orally without a questionnaire quite effectively. For our trial, I had jurors take a copy of our standard one-page questionnaire for their reference. When I called on them they went down the page volunteering their answers orally. This process helped to streamline the flow of information and worked better than expected. At times the court reporter had difficulty hearing their answers -- and those with masks were especially challenging. We could have used a wireless microphone, but that would have created an additional challenge: Each time the mike is handed to a juror, it would have needed to be wiped and cleaned.

The other challenge to overcome was to prevent the "musical chairs" of jury selection. Under normal circumstances, when a juror is excused for cause, I would call the next person on the random list to take their place and sit in the previous jurors' seat. During selection and the exercise of peremptory challenges by attorneys, I use the "six-pack" method with a panel of 18 prospective jurors who have been questioned and passed for cause. If someone in the first 12 is excused during a peremptory challenge, I normally would have the next person in line after the first 12 take their seat in the jury box. We could not do this now due to the need to break and clean a seat thoroughly before it could be occupied by another person. To accommodate this problem, I dispensed with that whole practice. Instead of replacing a prospective juror with another in that same seat, we simply went to the next jurors in line, who were already seated. The first 12 remaining in the order they were called became our jury box. This process actually expedited jury selection; and to my surprise we picked a jury by lunch recess.

On Thursday, June 4, we began the trial at the courthouse but had to overcome some challenges and adapt to the new environment. The audio-visual system had been replaced during the closure and the bugs had yet to be worked out. The air-conditioning in the courtroom was not working and the temperature outside approached 100 degrees. The attorneys had to learn how to navigate the courtroom now with no jury box and jurors spread throughout the courtroom like a fishbowl. With only two seats for the public and more than that who wanted to watch the trial, we had to make sure the livestream was working in a vacant courtroom so the trial could be viewed remotely.

On Friday, June 5, the jurors were given the case for deliberations. They made their way up the stairs (or elevator one at a time) to our vacant fourth floor, where there was an unused conference room large enough to accommodate proper distancing. The alternative was to let them deliberate in my courtroom, but we hadn't figured out how to turn the security cameras off yet. That afternoon, after they returned their verdict, I stood before them and struck my gavel. I thanked them for their service during these extraordinary times. For me the moment had profound significance. Amidst everything going on in our communities, we were able to re-instate the sacred right to a jury trial that we all share.

Sometimes a crisis can bring out the best in us. It can provide an opportunity to examine how we normally do things and create change for the better. I have seen during this pandemic our common humanity being celebrated by people coming together to help each other. I am seeing as peaceful protests occur a productive dialogue unfold about race and injustice in America. As we come to appreciate the principles that unite us, I hope for a better understanding of Martin Luther King Jr. famous words "[i]njustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."

The week of our first post-pandemic jury trial was a success due to the teamwork of so many people involved in its planning and operation, as well as the willingness of members of the community to perform their civic duty. What I learned during this process may change how I conduct jury selection in the future. I am proud that in the original courtroom of this great Historic Courthouse, first dedicated in 1898 as our "Temple of Justice," we were able to contribute in a small way to the continued pursuit of justice during these difficult times. 

#358009

Ben Armistead

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