Since the first television set flickered to life, courtroom dramas have been a staple of broadcast dramas.
We have all seen Clinton Judd, Jack McCoy, Perry Mason and a plethora of other fictional lawyers look directly at jurors while cross-examining a witness or lean into the jury box to deliver a closing argument.
And while it may be overdramatized on the screen, as a veteran of hundreds of jury trials, I can assure you my ability to influence a jury can absolutely determine the outcome of a case.
Along with providing fodder for hundreds — or is it thousands — of episodes of "Law and Order," a trial by jury is also a pillar of American jurisprudence guaranteed by both the U.S. and Ohio constitutions.
Unfortunately, that pillar is crumbling under the weight of COVID-19. And this has led me to render this verdict: Jury trials should be delayed for the duration of the pandemic.
Two factors led me to this conclusion.
The first is my concern for the health of everyone involved in a jury trial including the judge, lawyers, defendants, witnesses, bailiffs, court reporters, deputies and, of course, the jurors. Despite the best efforts of our local judges and their staffs to COVID-proof their courtrooms, safe social distancing cannot be maintained during a jury trial. That puts all parties at risk for infection. It is a risk we shouldn’t have to take.
That is something the federal judiciary has acknowledged. Not only have jury trials been suspended, but non-court employees are still not allowed to step foot inside a federal courthouse. All proceedings are conducted virtually and, yes, I must stand when the judge enters the courtroom.
My second concern is that jury trials in midst of the pandemic also jeopardize the constitutional rights of criminal defendants and plaintiffs in civil actions like personal injury and medical malpractice suits. As I mentioned in the opening paragraph, attorneys must be able to interact with and gauge the reaction of jurors during every phase of a trial. That would be difficult enough if jurors were sitting together wearing masks that concealed their faces, but it is near impossible when they’re spread across every corner of a courtroom planted behind a forest of plexiglass shields.
While being isolated from jurors is bad, being forced to socially distance from my client would be worse. During a trial, I need to be able to converse with my client both in and out of court. That would be awkward when we are sitting at the defense table and it’s extremely difficult in the interview rooms at the local jails which are unbelievably small.
If you do not want to take my word for it, here’s another expert’s opinion on the issue: I was scheduled to participate in the first criminal jury trial to be held during the pandemic. Although I was concerned, my client wanted to move forward — until he saw the way the courtroom was set up. He immediately waived his right to a speedy trial and said “Let’s come back when we can do it the old way.”
I enthusiastically concur with the learned gentleman’s opinion.
I'm not criticizing judges, but if criminal defendants are willing to waive a speedy trial and sit in jail, perhaps the court could reconsider insisting on jury trials until the pandemic has passed.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to firstname.lastname@example.org.