Jury trials — a bedrock function of the criminal justice system — are slowly coming back in Minnesota after a three-month hiatus brought on by the COVID-19 pandemic.
But even with clients in jail awaiting trials, some lawyers still think it is too soon.
Starting last week, Hennepin, McLeod, Olmsted and Ramsey counties can begin jury trials in felony criminal cases on a pilot basis after complying with a new COVID-19-preparedness plan developed with the Minnesota Department of Health. No other criminal trials can take place before July 6 and no civil trials can be held until Sept. 1.
For Chief Justice Lorie Skjerven Gildea, the decision to resume trials has been a painstaking one, forcing her to balance health and safety with the need for a fully functioning court system.
“Justice is a very human endeavor and we’re used to, in the court system, close personal contact,” said Gildea, a former Hennepin County judge appointed to the court by Gov. Tim Pawlenty in 2006. “You think about … 12 jurors sitting closely together … or the attorney and client sitting very close together at the counsel table sharing a private moment, whispering ...”
Though eager for a gradual return to a more fully functioning court system, Gildea and others acknowledge that it’s still an open question whether Minnesota’s courts can do business as they did for the 162 years before the virus crept into the state.
Amid the halting efforts to restart trials, the state’s chief public defender, Bill Ward, said safety is still an overriding concern.
“The reality is that when people are called to service, the courts have to create an environment where people can trust in this process again and in order to trust it they have to feel safe in being a citizen participant,” Ward said. “But they have to feel that they are being treated in a way that they feel the courts care about their personal health and welfare.”
In March, Ward demanded the release of jail inmates statewide to protect them from the spread of the virus. The state’s county jail population has since shrunk by nearly half. Though still concerned about defendants’ rights to a speedy trial, Ward worries that counties returning to jury trials too soon and without proper safety and sanitary protocols could also hinder the chances of a fair trial.
Felony charges are down this year in Hennepin County, likely because of coronavirus-related closures and restrictions. But pending felony cases are up. Meanwhile, active felony cases in the county are up 67% compared with the same time last year. Hennepin County just completed a felony jury trial last week for a felon in possession of a firearm case. The county has 275 felony trials scheduled for June and 239 for July. But even if only an average of about 13% of felony cases end up going to trial, there would be 37 trials this month in Hennepin County.
Ward said that officials are still trying to determine how to get the state’s other 83 counties ready for jury trials. Some counties do not have adequate courthouse space for social distancing, he said, and may need to seek out schoolhouses or other empty facilities.
Gildea acknowledges that court staff and judges understand that “we’re not just going to turn the lights on and everything will be back to the way it used to be on day one.” Instead, she predicts a “gradual transition” that keeps as many people working remotely as possible.
Some national state court experts say keeping many of the changes forced by COVID-19 in place, such as expanded remote access to court hearings, may be for the better.
“Whether it’s this fall and there’s a COVID re-up surge or COVID goes away tomorrow, your courts are not going to look the same way they did last year,” said William Raftery, an analyst for the nonprofit National Center for State Courts. “That, for many instances, is going to be a positive thing because people can now get better and greater access than they would have six weeks or six months ago.”
Gildea has convened an “other side” working group to study how to emerge from the shutdown. Tom Nelson, president of the Minnesota State Bar Association, has been part of numerous calls with Gildea and other criminal justice and court officials. He said that a return to jury trials will need to come with an assurance that juries can “have a clear-eyed non-traumatized trial experience” at a time in which many are fearful to even go grocery shopping.
“That will take, for example, careful guidance from the courts on how to instruct jurors — including careful reassurances to prospective jurors about how things are going to proceed, and about how to handle their potential fear or discomfort in light of a citizen’s duty to serve on a jury,” Nelson said. “Those are difficult, concerning and understandable realities.”
Bob Small, a former Hennepin County judge and federal prosecutor and now executive director of the Minnesota County Attorneys Association, said the planning for returning to jury trials has been good but that implementation “remains to be seen.” As of late May, Small said, prosecutors in some of the pilot counties readying for trials were still working through how they would bring in jurors and ensure adequate spacing for social distancing.
“I enjoyed facing the challenges of the moment in the courtroom — I’d accept that challenge in a nanosecond,” said Small. “But running a whole state judicial branch right now? That’s a huge job, and I think [Gildea’s] doing a good job.”
Gildea said Minnesotans returning to courthouses in the state’s 87 counties will see new signs, barriers and face coverings worn by staff. Jurors called to serve in the pilot counties will be given paper masks upon arrival and must follow state Health Department social distancing guidelines on when and where they can assemble, participate in jury selection, deliberate and otherwise move about the courthouse.
During a recent phone interview, she paused to knock on the same wood dining room table that’s doubled as her office many days this spring. Much of her work has taken place remotely, with lawyers appearing before her via video or telephone conference.
“I’m not going to tell you it’s been an easy time,” Gildea said. “It hasn’t been easy for anyone. But you focus on the mission and pay attention to what you can control and what is your obligation.”