Diagrams, measuring tape, face shields and plenty of hand sanitizer are now necessities in New Hampshire’s courtrooms.
Jury boxes and deliberation rooms, while still fixtures of the modern courthouse, no longer serve a purpose.
The days when courts could accommodate dozens of curious trial attendees for weeks or even months are over.
The new coronavirus has required court officials and lawyers to completely deconstruct every aspect of what had been normal jury trial proceedings until this past March, and implement new guidelines to ensure the safety of everyone involved. The effort in the Granite State has taken months and, even still, nothing is guaranteed.
“The bottom line is defendants have a guaranteed right to a speedy public jury trial and we have an obligation to keep jurors, staff and attorneys safe from a public health threat that can and has taken people’s lives,” New Hampshire Superior Court Chief Justice Tina Nadeau said in a recent interview. “Obviously, we’ll not be able to conduct jury trials the way we once did for a while, at least until there is a vaccine. The plan we’ve developed is constitutional and fair and permits the resumption of jury trials in the safest way possible without having to wait. We recognize that this is a brand new day and that there will certainly be challenges.”
While court administrators had eyed the state’s northern-most county for the first jury trial since March, they’ve now shifted their sights from Coos County to Cheshire County due to case readiness and lawyers’ availability. Nadeau said the COVID-19 infection rate is low there, too, and that preparations are underway to pilot a trial in Keene in August. What happens after that is a bit unknown at this time.
“It all depends on how things go, and if we get another surge and which areas of the state are most affected,” Nadeau said. “Assuming the case count stays steady or dips, we’ll roll out one trial at a time in other counties.”
New procedures were developed in the past few months to conduct the initial phases of jury selection remotely so that fewer prospective jurors will be required to appear in-person at the courthouse. That process includes an enhanced screening process with coronavirus-related health questions.
For Granite Staters familiar with the criminal justice system, the format of jury trials will look very different than what they’re accustomed to. While jurors have traditionally sat almost shoulder to shoulder in the jury box, they’ll now sit in the public gallery to allow for social distancing. They will wear face masks at all times, including during deliberations which will take place in the courtroom rather than a side room once reserved for that purpose.
Additionally, tables reserved for the prosecution and defense will now face each other in the courtroom so attorneys’ backs aren’t to jurors. Lawyers will examine witnesses – who must wear a see-through face shield or clear mask provided by the court – from those tables and not the podium.
Cases selected for those initial trials must meet certain criteria: There will be no jury view of the scene where the crime is alleged to have occurred; opening statements, the evidence portion of the trial and closing arguments will take place in a maximum of two to three days; and, unlike in lengthy murder trials, there will be few exhibits.
To develop these guidelines, New Hampshire officials researched what is happening both in other state courts and in federal courts, and sought input from lawyers on both sides.
Not long after state courts began restricting in-person access due to the state of emergency, Nadeau convened a committee of judges, clerks, administrative staff and information technology experts to develop plans for how to safely resume jury trials and grand jury proceedings, while recognizing that COVID-19 still poses a threat. It was a few weeks later that she then reached out to the Department of Justice, New Hampshire Association of County Attorneys, the New Hampshire Association of Criminal Defense Lawyers and the state’s public defender program to receive their ideas and concerns.
“The bar was set at safety first for reopening the courts,” said Strafford County Attorney Tom Velardi, who in his role as president of the county attorneys association served on the working group. “It’s paramount that we make people feel as comfortable as possible to come back to the courthouse to serve as jurors and witnesses.”
Both Velardi and Robin Melone, who is president of the criminal defense lawyers association, said they are appreciative to Nadeau for taking a collaborative approach and seeking their input.
“We had our differences, for sure, but she listened to, heard and responded to everything we shared,” Melone said in a recent interview.
One of the biggest concerns for both sides is ensuring a fair and impartial jury is impaneled in each case. COVID-19 poses new challenges for minority groups and indigent members of the population who are also some of the most vulnerable to the virus, Melone said.
“We know that minority individuals have been disproportionally affected, that people who have jobs rather than careers are more likely to be unemployed, that people who have children who are lower to middle-income struggle the most with childcare, and that statistics show women have disproportionally taken on a stay-at-home role in two-parent working households,” Melone said. “If you factor in all the vulnerabilities, I think we end up looking at a much less diverse jury pool and much less community-reflective jury pool.”
For months, people have been told to stay home to reduce the spread of COVID-19 and keep their families safe. Now, the prosecution, which bears the burden of proof, faces an added pressure: ensuring witnesses show up at the courthouse.
“It is very important for us as a group to have the courts go through this process and put together a document that is going to ensure citizens who are under compulsion to appear by subpoena, or otherwise be held in contempt of court, feel safe to do so,” Velardi said.
In the initial stages of the resumption of jury trials, Nadeau will review all requests from prospective jurors wishing to be excused from service, which she said will help ensure consistency across the superior courts. She said every potential juror will receive equal treatment.
“I want to ensure anybody who may be summoned to serve that we have taken every precaution and continue to consult with leading medical experts to keep them safe,” she said.
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.