Sep. 23, 2020
Reflections on the first post-pandemic jury trial in San Francisco
Upon learning that my client and I were going to be part of the first post-pandemic jury trial in San Francisco, I was nervous. I was nervous about my client getting a fair trial, about his rights being infringed upon in the name of public safety.
Upon learning that my client and I were going to be part of the first post-pandemic jury trial in San Francisco, I was nervous. I was nervous about my client getting a fair trial, about his rights being infringed upon in the name of public safety. I was nervous about how jurors would react to being called to service. Would they blame my client for having to be there? I was nervous about the unknown, about how the new reality we all find ourselves in would play a role in the trial courtroom.
Hoping to find some guidance, I looked into the history of pandemics and jury trials. A colleague helped me research, and he sent me a photo of an old newspaper clipping that showed a Judge John J. Sullivan conducting trials outside in Portsmouth Square in San Francisco during the 1918 pandemic. Judge Sullivan wanted to protect public safety but also forge ahead with criminal proceedings. The open-air court was apparently short lived -- as Judge Sullivan was quickly diagnosed with the Spanish Flu. Not an auspicious start to my research.
The backdrop for our entire trial, from before we were assigned a judge through the verdict, was that this was the first case to happen in "unprecedented times." This phrase was employed frequently and was always disconcerting. In a profession where precedent often acts as a guide, the constant reminder that there were no signposts to direct us was alarming. And if I was unnerved by this, imagine how my client felt at being constantly reminded that no one in the room knew how to proceed.
The first several weeks of in limine motions were spent answering logistical questions -- where to sit, stand, file motions, place exhibits. The underlying facts of the case seemed to fall completely to the wayside as the uncertainty imposed by the procedural novelty loomed large. Sheriff deputies didn't know if I was allowed to visit my client in the holding cell. Court staff didn't know where to position their chairs. Clerks didn't know if it was appropriate to physically accept hardcopies of motions or if there should be another drop-off mechanism. We had to slowly chip away at each of these issues, often as they arose.
One of the first legal battles related to COVID-19 that I fought was about whether jurors, witnesses, my client, and I would be permitted to wear clear face shields in lieu of opaque face masks during trial. Facial expressions, especially micro facial expressions, are a critical part of how we as human beings assess the credibility and overall presence of another person. There is ample research on this subject. There was also the issue of my client's Sixth Amendment right to face his accusers -- which some courts have defined in the literal sense to mean physically face and see the whole face of an accuser.
Masks also impede jurors' abilities to assess the credibility of witnesses, and my ability to assess their qualifications as potential jurors. Even more, the history of masks in American culture is one steeped in villainy. Masks are worn by bank robbers, Halloween killers, and Klansmen. They are associated with people who are up to no good and who need hide themselves from the rest of us. I was deeply concerned about subconscious bias towards my client, a young Black man, wearing a mask during trial. I felt compelled to address the problems inspired by mask-wearing for many reasons.
I spoke with an infectious disease specialist and he was prepared to testify at a 402 hearing about how face shields could be safely used in a courtroom in lieu of masks. The judge ultimately did not permit his testimony. Instead, I submitted a declaration and his CV. The court ultimately denied my motion for clear face masks, but a compromise was struck. The judge ordered that all witnesses would wear clear face masks, and that my client and I could also wear clear masks. Besides being a bit physically uncomfortable, this worked well. Jurors later commented that they appreciated being able to see my client's face and felt more connected to me because they could see my expressions.
I next tackled the issue of whether I could sit next to my client in trial. As anyone who has represented someone accused of a crime knows, jurors are constantly watching your interactions with your client. The nonverbal and verbal interactions you have with your client inform their conscious and subconscious opinions about him or her. Do you seem scared of your client? Do you trust your client? Do you believe in their innocence? Do you care about their wellbeing and the effect this case will have on him? Are you afraid to make contact? Do you speak to her throughout, ask for his opinions during voir dire? Do you like your client? Jurors guess answers to these questions in the ways you physically interact -- or don't -- with your client.
But even more than that, when you are in trial and representing a client, there is comfort in knowing that you are a team; that you are working and fighting together to get a just outcome. It was a rude awakening in my trial to see how the pandemic conditions made this teamwork so much more difficult. It is very difficult to be a good lawyer from six feet away. How do you communicate in a confidential way with someone six feet away? How do you reassure your client that you also just heard a certain witness answer or help ease her nerves during difficult testimony?
I knew the request to sit next to my client would be met with resistance, as a violation of the social distancing measures that are in place in San Francisco and so many other places across the country. However, I asked to be considered part of my client's "social bubble" -- equivalent to his family or home group. I suggested safeguards such as frequent testing, and that my client and I maintaining isolation during trial. This request was also denied and I had to scramble to find an alternative mechanism for communication. My client and I ended up communicating using a laptop messenger app, which wasn't ideal in any sense but was better than nothing.
I also had to fight to get physical access to my client during off hours. The Sheriff's Department had suspended all contact visits with people in custody. There was a system in place to be able to have a "Zoom meeting" with a client, but such meetings were limited to 30-minute segments unless you got had special permission to extend them. I tried this in the beginning. It did not go well. The internet connection was poor and the audio and video lagged. My client and I ended up speaking over each other several times and not being able to hear each other. I also could not share trial materials with him -- photos, documents, reports. It wasn't working and so I filed a motion to be granted contact visitation with my client during off hours. Everyone initially responded with resistance. There was understandable concern about the safety of my client and other people in custody, should he contract COVID and then spread it to other people. But I was already sitting in a courtroom with him all day and wanted to be able to sit, masked and distanced, in a room with him after court, to discuss and prepare. Again, after much litigation and argument -- and the ultimate support and joining of the district attorney's office -- we crafted a work around exception. I was allowed to meet with my client in the holding cell, masked and distanced, during off hours of the trial.
All of the above describes just the preliminary aspects of this trial. They stand starker in my mind, because once voir dire began and evidence started, my focus necessarily snapped back to the specific facts and issues of my case. I do recall spending an inordinate amount of time staring at jurors' eyebrows during voir dire and evidence, as they were the most visible and expressive parts of their faces. Often, I couldn't tell the difference between confused eyebrows or skeptical eyebrows, but my client and I did our best. The jury ended up acquitting my client of the only felony charge that he was facing, and convicting him of a misdemeanor. His trial had an original last day of mid-March, and because of the delay while trials were suspended, he had accrued more than double the amount of time he should have served on the misdemeanor. He was released from San Francisco custody that night. While we both relished the result, my inability to hug him as the jury looked on and he sobbed after hearing the verdict served as stark reminders of the world in which we now live.
Looking back at the photo from 1918, I can appreciate the creative solution that Judge Sullivan tried to implement during that pandemic. I wonder if counsel felt the same sort of nerves and discomfort that I did with the changes. I am happy that our proceedings ended on a more positive note than his did. But we are quickly moving from this current pandemic being "unprecedented times" to being the new normal, and many of the procedures used in our trial felt like stop-gap measures or temporary fixes. We will all need to be more creative and bold as trial attorneys going forward, as we fight to make sure that we do not sacrifice the constitutional rights of the accused as we seek to protect public safety. In the meantime, I remain nervous but more prepared and hopeful as I look to my upcoming trials in this new era.