Last week, the Texas Supreme Court issued its 18th Emergency Order once again delaying the conducting of jury trials in Texas courts stating in its most recent order that “A court must not hold a jury proceeding, including jury selection or a jury trial, prior to September 1, except as authorized by this Order.”
Trial by jury is a critical component of the American legal system.
The Sixth Amendment to the United States Constitution guarantees the accused the right to a speedy and public trial by an impartial jury.
“I consider the trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution,” Thomas Jefferson once wrote to Thomas Paine.
Mamie Johnson, a veteran criminal defense attorney in Tarrant County, has concerns about the delay of jury trials.
“The only way to be fair to both sides, prosecution and the accused, is to try to agree on a safe way to have a jury trial,” she told The Texan.
She also pointed out that there are certain time tables in the law regarding filing charges, indictments, and other matters and that those time tables have not changed because of COVID-19.
Johnson gave an example of a case involving the sexual assault of a child. “The defendant can choose to have a jury trial and if he doesn’t get it within the time table, the case will be dismissed.”
The lack of trials is also contributing to overcrowding in jails, Johnson believes, as the accused are held in custody and their cases are not adjudicated.
“This may be a shock to some,” Johnson said, “but there are a few [accused] who are innocent. Imagine, hypothetically, someone innocent stuck in jail and they can’t get a trial.” She tells her clients that they probably shouldn’t expect any jury trials until 2021.
Civil litigants are also having their trials delayed.
Veteran trial lawyer Steve Laird told The Texan that many pre-trial matters and discovery can be handled via Zoom. Some of these practices will remain after the pandemic ends, Laird believes.
“[A]t the end of the day, jury trials need to resume,” Laird added. “There are too many aspects involving human interactions with witnesses and lawyers and even the jury that would be lost with a Zoom trial.”
Judge Brooke Allen, a probate court judge in Tarrant County, voiced her concerns about the delay in jury trials and other in-person proceedings.
“I think the Texas Supreme Court and the Office of Court Administration are using COVID to fundamentally change our legal system,” Allen told The Texan. “If they want to change the system, then they need to explain the reasons why.”
She pointed out that cases are backing up on her court’s docket, including in contested matters where there is no meaningful confrontation of witnesses over Zoom.
“Observers are currently allowed in the courtroom,” watching the judge conduct a Zoom hearing, “but a litigant and his attorney are not allowed an in-person hearing even if they are willing,” Allen said.
People are subject to delays for such matters as wrongful death cases, medical malpractice cases, and will contests in her court.
“I’m shocked that we are forcing people to redress their grievances over Brady Bunch-style Zoom trials,” she added.
The Texas Supreme Court included a provision in its order for “allowing a limited number of jury proceedings prior to September 1.” The order doesn’t say what kinds of cases will be prioritized for these jury proceedings.
If the trial judge requests that a jury trial be held, a plan must be approved that includes social distancing and other health and safety measures, reasonable steps to protect the constitutional rights of the parties, and protection from outside influence on the jurors including steps to ensure their attention to the case.
In its 17th Emergency Order issued in May, the Supreme Court allowed for these limited experimental jury trials also. However, one notable difference in the Supreme Court’s most recent emergency order is that it removed a provision requiring the consent of all parties to the jury proceeding.
Johnson is concerned that the parties’ consent is no longer a part of the Supreme Court’s order.
“It is only fair for the attorneys and parties to know the plan because every individual involved is taking a chance with COVID-19,” Johnson remarked, adding that she is a caregiver for her sister and must be extra cautious.
“At the same time, I totally understand the need to proceed. The judges in Tarrant County work hard not to have a backlog, and that is what is happening right now.”
Laird expects to see innovations and creativity by judges in attempting to adapt trials for maximum safety for all parties involved.
“We have another challenge and that’s the American psyche. We have to help convince the public that they can answer a subpoena for jury duty and that they’ll remain safe when they come to the courthouse.”
He said that a short two-day trial was recently held in federal court in Sherman where specific precautions were taken to protect the litigants and jurors. He expects judges to conduct similar experimental trials in shorter, simpler cases to see what works and can be adapted.
Laird expects that in-person voir dire (questioning potential jurors) will be limited more than in the past and jury questionnaires will be used more broadly to minimize the time a potential juror is in the courtroom.
He also expects that trial exhibits will be in electronic format where possible.
“It is unlikely that lawyers will approach witnesses as they have done in the past,” Laird added.
“I really think that it will be the fall before the court system starts gearing up again, and then it is going to be a learning process.”
The Texas Supreme Court also issued an emergency order last week canceling the July state bar exam for those wishing to become licensed attorneys in Texas. An in-person exam is set to be offered September 9-10 and an online option is set for October 5-6.
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Kim Roberts is a reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.