The image of 12 people packed shoulder-to-shoulder in a jury box is a powerful one. Enshrined in the Constitution, and in countless hours on television.
But now? Court officials around the country are weighing their options while dealing with the looming threat of COVID-19.
In Indiana, jury trials are scheduled to resume on July 1, and what that will look like is still unknown.
In May, Allen Superior Judge Fran Gull unveiled the criminal division’s plan for resumption of jury trials. All plans must be submitted to the Indiana Supreme Court for approval.
Allen County’s plans include using a lot of space in what is one of the largest county courthouses in the country, with multiple courtrooms used for potential jurors.
The cavernous main courtrooms provide plenty of room for social distancing, but even with that, there will be little room for observers, including family members, and the media.
“This has been a process of some depth...we’ve tried very hard to protect the safety of the public. “The only people who aren’t voluntary participants in this are jurors," Gull said.
What to do with jurors is becoming quite an issue.
While Allen County’s courtrooms allow plenty of room for spreading people out, most of Indiana’s counties have much smaller courthouses, packed to the gills during normal times.
James Maguire is one of the staff attorneys for the statewide task force to help craft reopening strategies.
“How the courts are going to provide for the safety of the jurors, of the litigants, of the attorneys, of the court staff, all those have to be addressed,” he said.
Without a unified court system statewide, no standards for size and operations, it has been a difficult discussion.
“Each of the 92 counties have to set up their own rules, procedures and the counties are different,” Maguire said.
Some counties are taking different approaches to how to handle personal protective equipment such as masks. In some instances counties are finding the supplies for their courthouses.
And in other cases, the court staff are having to go out and find their own, Maguire said.
Allen County will allow potential jurors over the age of 75 to opt out of jury selection. Other accommodations are available to those between the ages of 60 and 74.
Removing whole segments of the population from jury duty does not fit with the idea of the jury as a cross section of the community, says Jim Abbs.
Abbs is the Chief Public Defender in Noble County and president of the Indiana Association of Chief Public Defenders.
He is worried about finding jurors, difficult during normal times, and protecting the rights of defendants who wait their day in court, in front of a jury.
“I think you’ll see that problem in the larger counties also. People are just not going to want to participate in it, and take that health risk chance to sit on a jury," said Abbs. "It’s hard enough to get individuals in their normal daily lives to take off work, interrupt their schedule. Now you’ve added a health risk. It’s going to be very difficult to find individuals who want to participate in the jury process.”
Social distancing and masks also make it difficult for trial work. How do you read body language and non-verbal communication when half of one’s face is covered?
“To have a client in a mask, being separated from their attorney, isn’t really how we’d want to present the individual. And is it truly an accurate portrayal of the individual," Abbs said.
So far remote hearings are working well for managing some of the day-to-day business of the courts, from arraignments to bond hearings.
And some civil court work has moved online, or has been delayed. For example, Allen County’s Superior Court Civil Division has continued all jury trials until September to allow the criminal division to catch up.
Some of these changes, and the move away from in-person hearings, will probably be with us for a while, after the threat of the pandemic has passed, Maguire said.
Whether the new measures will work in both protecting public health and criminal justice is unknown.
But all agree there are many headaches ahead as they iron it out.