Watergate jury, by John Hart. The original hangs in my office.
Yesterday I wrote about the post-pandemic law office, and depositions and court conferences. Today I shift to jury trials.
On Monday, New York’s Chief Judge put out a statement with lots of good news, including the fact that experimental jury trials have started. For the courts outside of New York City, 70 criminal and civil trial have now been scheduled, and many completed.
And jury trials are to start next week in New York City. As per CJ DiFiore:
In New York City, our current plan is to restart civil jury trials next week, although we are carefully monitoring the COVID metrics in different areas of the City and have not yet finalized decisions on the number or locations of these initial jury trials. You can be sure, however, that we will make responsible decisions based on all of the latest data and public health guidance, and that no jurors, lawyers or witnesses or members of our staff will be asked to report to our courthouses unless we are confident in our ability to protect their health and safety. And every trial that does take place will be conducted in a building that is operated with the full range of safety protocols that have been implemented, tested and refined to protect the hundreds of jurors, lawyers, witnesses and staff who have already safely participated in our jury trial pilot over the last several weeks.
As someone who makes his living in the courtroom well, I’m obviously happy to see jury trials restart. For it is only with a jury in the box that an insurance company will be forced to come to the table in good faith to negotiate.
But. And you knew there had to be a “but,” didn’t you?
What will these jurors look like who appear amid a pandemic? Will they be representative of the general population, so that litigants have a jury of their peers?
The jury pool as a whole is most likely to be skewed.
We can start with those most vulnerable to COVID-19: The elderly. What percentage of our seniors/retirees, who ordinarily would show up for their civic duty, will say “no way, ain’t gonna do it.” Because virus. This demographic is almost certain to decrease.
How about those with underlying respiratory conditions? You can rest assured more of those will also stay home than would ordinarily show up. And many of these will have conditions exacerbated by poor health care.
Minority populations? Black populations have been especially hard hit, and it would be reasonable to assume that, as a percentage, fewer would want to come into the close confines of a courthouse no matter how much the judiciary says it will be safe. Because potential jurors won’t really know what the lay of the land will look like until they get there.
Mass transit users? Less likely to come to the courthouse while those that can afford private transportion are more likely.
And what of those that think the virus is no big deal? This population, generally conservative, will be more likely to come to the courthouse to serve.
So, in summary, the jury pool in New York City is now likely to decrease the number of seniors, those with respiratory issues, Blacks, and the poor, and conversely more likely to include those who are young, white and conservative.
I’d love to say that I have a solution for this problem. I don’t.
But I’m open to suggestions. And I bet the judiciary is also once they recognize the problem.