Update from D. Mass. On Resumption of Trials.

Chief Judge Saylor held a Zoom conference this afternoon to inform the bar on the steps the District has taken to resume jury trials.  Four of the larger courtrooms in Boston have been configured to allow for proper social distancing, including plexiglass barriers, spreading the jury out into the well of the courtroom, and electronic equipment to allow for sidebars without counsel approaching the bench.  While this will allow for jury trials to resume, the continuing COVID issues will require some differences from the pre-COVID era:

  • Criminal trials will take preference, particularly where the defendant remains in custody;
  • Civil trials will resume based on the level of complexity and the number of people likely to be required, although they will potentially provide more flexibility for witnesses by video or the like; and
  • Courtrooms will be limited to a maximum of 24 people (and will be less for smaller courtrooms), inclusive of jurors, Judge, parties, lawyers, witnesses, courtroom reporters, clerks, etc.

The trials will also entail some safety precautions.  Everyone, including lawyers, parties, and jurors, will be required to wear masks throughout, other than witnesses who are testifying – they will speak without masks to enable jurors to assess their credibility.  Jury rooms will not be available, as they are too small to allow for proper distancing; instead, smaller courtrooms will be used as jury rooms or staging rooms for trial teams, to limit the number of attorneys and staff necessary at any one time in the courtroom.  Public access will likely be restricted to Zoom (or the equivalent), although the right to public access remains to be balanced with the restrictions on broadcasting federal trials.  Even access to elevators in the courthouse will be limited to four people at a time, with each facing a different wall.  Attorneys, potential jurors, and witnesses will be required to fill out self-assessments relating to their health and potential COVID exposures.  Further, given the civil unrest (which has included attacks on court security personnel in Arizona), courthouse security would remain a priority.  Judge Saylor indicated that the same restrictions would apply in the Worcester and Springfield courthouses.

A number of issues remain to be determined.  No determination has been made with regard to an attorney or juror getting sick – HIPPA likely prevents the Court from determining whether they have symptoms consistent with, or a diagnosis of, COVID, and would likely prevent the Court from notifying co-jurors or others should this occur Judge Saylor did indicate that a single juror’s illness would not result in a termination of the trial.  No decisions have yet been made for dealing with witnesses who refuse to attend trial, or witnesses from locations from which travel is prohibited by Governor Baker’s emergency orders – while the state’s travel restriction do not apply to federal court proceedings, the Court is reluctant at this time to counter these restrictions. Finally, the potential jury pool will potentially be reduced due to the exclusion of those more at risk from COVID, as well as those who choose not to appear as a result of the pandemic and/or political climate.

The first jury empanelment is scheduled to begin on September 29th, and the first few trials will allow the court to determine the effectiveness of the safety procedures put in place.  While the Moakley Courthouse has four courtrooms set up for trials, all four will not be put into initial simultaneous use.  After that, the Court will determine a trial schedule as a collective whole – trials will not be scheduled at the discretion of the individual judges.  The Court is looking at alternative spaces in which to hold bigger trials, which might include Hanscom Air Force Base in Bedford and/or the courtroom in the McCormack Building that formerly housed the federal courthouse (although neither remain certain yet).  It seems likely, however, that complex civil matters will not occur until 2021.

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