Despite obstacles, Judiciary is actively preparing to restart jury trials

The Vermont Judiciary is committed to protecting Vermonters’ rights—the right to a fair and speedy trial before a jury of one’s peers; the right to gain entrance to a court freely to witness a non-confidential hearing; the right to face an accuser; and the right to speak confidentially with counsel. During a global pandemic, a focus on public health and safety has to be added to the list.

“To protect the health and safety of defendants, attorneys, court staff and all the other people needed to conduct business before the court, in March 2020, the Supreme Court suspended jury trials and began moving much of the courts’ business to remote platforms,” explained Chief Superior Judge Brian Grearson. “Since that time, we have made substantial efforts to re-start jury trials and overcome obstacles Vermonters are facing in our system during COVID-19.”

“Because we’re committed to opening up access safely, we use data and information from the CDC and the Vermont Department of Health to guide our decisions,” he noted. “In addition, we have retained the services of Erin Bromage, PhD, a University of Massachusetts Dartmouth professor and national expert in infection and immunology, to advise us on safety measures. Dr. Bromage works with courts and other organizations throughout the country on safely convening groups during the pandemic,” he said.

The Supreme Court in March 2020 released Administrative Order 49, an emergency order that prioritized criminal jury trials for those individuals in custody of the Vermont Department of Corrections.

“With Dr. Bromage’s counsel, we have gone to great measures to try to restart jury trials in criminal cases,” he stressed. “We are keenly aware that each criminal defendant has the right to a fair and speedy trial with a jury of peers and that, in some cases, defendants are being held without bail or are unable to post bail—and have been waiting for more than a year for the prospect of a trial.”

Conducting jury trials in a COVID-19 environment requires retrofitting courthouses to provide for social distancing. For example, the Judiciary prepared a Windham County courthouse for a criminal jury trial that would have taken place in December, had Vermont’s COVID-19 cases not begun to climb during and after the holidays.

“For that trial, we planned to use all three of the courtrooms in the Brattleboro courthouse so jury members could wait, deliberate or eat together while maintaining proper social distance,” Grearson noted. “Only three jurors could sit in the traditional jury box during testimony—the others spread throughout the courtroom. Court reporters, witness boxes and other stations had to be moved. We also had to change many of our procedures or institute new ones—drawing more potential jurors earlier so we could be more certain we could get 12 by the time of trial despite potential jurors’ personal challenges amid the pandemic. We also adapted security measures and made many other modifications to ensure the safety of all involved,” he added.

The Supreme Court has established a jury restart committee, which set standards for restarting both criminal and civil jury trials. With this guidance, Grearson and others continue to look at courthouses throughout Vermont to determine when and if jury trials can begin again at each. Grearson said he is cautiously optimistic that the Windham trial for which the Judiciary already planned might occur in March and other courts could follow, as the Judiciary continues to monitor COVID cases throughout the state.

“We will notify potential jurors of the trial date,” he said. “But if we don’t have clearance from public health experts and the Department of Health to move forward with it, we may have to delay it further.”

While paying close attention to the conditions needed to restart jury trials, the courts have employed new technologies that allows them to hold most hearings and other court proceedings remotely.

“We have dedicated much effort to ensuring that reporters, advocates, family members and others interested in various cases have access to watch non-confidential proceedings when appropriate,” said Patricia Gabel, Esq., the Vermont State Court Administrator. “This included offering remote hearing access information upon request and, in some cases, livestreaming hearings. We are currently piloting the concept of offering open livestreaming links on our website so that all may ‘tune in’ to watch criminal hearings upon demand,” she noted.

Gabel said that while she and her staff understand the importance of safety and expediency in their planning for access, those are not the only considerations.

“We are also acutely aware of the need to protect Vermonters’ privacy in confidential proceedings, and the need of court staff, defendants, etc. to speak off the record to one another in order to complete court business,” she said.

The courts are leaving no stone unturned when considering how to best navigate the challenges posed by COVID-19.

“We are exploring options and adopting them as we feel they’re appropriate,” Gabel noted. “We’re consulting with other states and national experts on topics such as the feasibility of alternative venues to hold socially distanced trials or even conducting fully remote jury trials. So far, we have not moved in either of these two directions, but we are well-educated on the pros and cons of each. We are seriously exploring the ability to conduct portions of a trial remotely—for example, virtual voir dire,” she stressed.  She also noted that the Judiciary is working closely with its justice partners and the Vermont Bar Association to ensure the restart of juries is coordinated.

Now that vaccines are being administered in our communities and Vermont can see a potential end to the unprecedented measures needed during the height of the virus, the courts are focusing on yet another administrative challenge in the future—how best to prioritize and work through the caseload when it is safe to conduct business in more typical ways.

“We’re working with the Bar and court staff about making trials a priority as soon as we can do so safely.  This will include reducing continuances and prioritizing jury trials over other case activities, since many parties will have had a year to prepare before we call their cases,” Grearson stated. “We are preparing to have retired judges help us move cases along. We are committed to allowing those awaiting trial to have their day in court and are working now to enable that to happen as soon, and as safely, as possible.