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As Kansas tries resuming jury trials amid pandemic, some are worried

Titus Wu
The Topeka Capital-Journal
Plexiglas barriers were installed in a Wichita courtroom to address COVID-19 concerns.

When the COVID-19 pandemic first hit Kansas, jury trials immediately came to a full stop.

Since then, that pause and the continuing influx of court cases has burdened the state’s criminal justice system, a fact that has weighed on lawmakers every time they renew the COVID-19 disaster declaration and put a strain on public defenders.

Now, Kansas is trying to resume jury trials and to reduce that backlog of cases piling up.

But some taking part in jury trials worry COVID-19 protocols are difficult to follow in a system designed without the virus in mind, while courts acknowledge how challenging it is to set up and run such a system.

"What I am hearing from defenders across the state is that there is a huge gap between the safety procedures written on paper and the realities of how those procedures are implemented in the courthouse,“ said Jessica Glendening, a public defender based in Topeka.

Back in May, the Kansas Supreme Court issued an order creating the Ad Hoc Jury Task Force, which in July laid out a report on how courts can best start jury trials back up with the coronavirus in mind. The report touched upon a variety of things, from public communication to sanitation and cleaning.

Each district court in Kansas then had to submit a report to the Kansas Supreme Court on how it would resume jury trials, and upon approval, they could start doing so.

As of late November, 17 of the state’s 31 district courts had approved plans, according to the Supreme Court’s website. But not all are conducting jury trials now.

A glaring example

The 27th Judicial District, which contains Reno County, was one of those whose jury trial plans got approved.

The district court shared its plan with The Topeka Capital-Journal and noted it was under review and could be updated. In its five-page plan, the court listed 35 rules, such as posting signs reminding people to socially distance and requiring participants “to wear masks at all times.”

But on Oct. 14, as the county held one of its first jury cases in the pandemic, alarm was expressed as protocol was not being followed. Both the prosecution and defense filed a motion together objecting to the plan’s implementation.

Reno County District Attorney Thomas Stanton said he submitted a list to the district judge of such instances.

Some were simple, such as the lack of any signage on needing to wear a mask and social distance, both in English and Spanish.

Others were more complicated, including the fact that jurors were advised to lift or pull down their masks when answering questions.

“It's very important that everybody be able to understand and hear what's going on in the courtroom, and having masks on makes that more difficult,” said Stanton. “I think the court found that was a very difficult requirement to follow when jurors needed to answer questions.”

The most glaring example in that case was the lack of social distancing in the jury selection process. Normally, a panel of jurors can wait in the courtroom while waiting their turn to go into the jury box to be questioned by attorneys for selection. With COVID-19, the court congregated those waiting in a separate lobby, where they watched the selection process through a TV.

While those in the courtroom being vetted by attorneys were 6 feet apart from each other, that wasn’t the case in the lobby.

“That lobby area isn't large enough to accommodate the seventy-some jurors that they called in for the jury trial, and keep them six feet apart,” said Andrew Davidson, senior assistant district attorney.

Some of the issues on the list that Stanton submitted have been addressed since that incident, he said.

When asked how the Kansas Supreme Court made sure district courts were accountable to the plans they submitted, a spokesperson said there’s a requirement that jury trial plans address safety noncompliance by jurors or court participants. Reports of safety noncompliance can be made to the jury coordinator, bailiff, trial judge or other court personnel.

The 27th Judicial District, when reached for comment on the incident, said it had none regarding the jury plan.

“Operations during a pandemic have been, and continue to be, a learning process,” said chief clerk Amanda Flores.

Logistical challenges

What happened in Reno County is illustrative of the intensive undertaking needed to make sure a jury trial plays out perfectly and safely.

Sedgwick County, home to the state’s largest city of Wichita, was one of the earliest to start back up jury trials in mid-August. The 18th Judicial District does at most two trials a week, said presiding criminal Judge Kevin O’Connor.

The district decided to start with lower-level cases first, which would require a fewer amount of jurors. This would give folks time to adjust and test before moving on to high-level cases.

Additionally, the 18th District outfitted its two larger courtrooms with an impressive amount of Plexiglas barriers, covering virtually every seat. Shawnee County also has Plexiglas plans for 17 courtrooms, with technology also implemented to allow for virtual appearances over video.

But it’s expensive, and setting all that up can take months.

“We have some that are probably going to be able to be done for say $1,000 or $2,000” per courtroom, said Lea Welch, court administrator for the 3rd Judicial District. “The barriers themselves are pretty expensive.”

Shawnee County’s judicial district has plans to make use, too, of the Stormont Vail Events Center for higher-level cases. That will require much logistical planning, needing to set up and clean potentially hundreds of seats.

Both Sedgwick and Shawnee counties are taking advantage of CARES Act money to help fund those projects.

In Wichita, its earlier runs of jury trials have gone well, but not without its hiccups.

Jury deliberations, for instance, can’t happen anymore with your typical huddle in a small room. Instead, a whole courtroom has to be reserved for that to maintain social distancing.

“If there are times where the jury is excused from the courtroom, for whatever reason, then we have been utilizing the next door courtroom,” said O’Connor. “So it has impacted the schedules of various judges, because you need the cooperation of not only the the courtroom where the trial is happening, but you need the cooperation of the courtroom next door.”

There are a bunch of other things to consider, as well, from determining the number of guards needed, to maintaining attorney-client counsel confidentiality while social distanced, to moving a defendant who is in custody.

“Something as simple as the light reflecting off the Plexiglas can be distracting. And so we have worked through that to try to get proper lighting,” the judge said. “There are so many moving parts you have to account for.”

The 18th District set up a tent outside for jurors to report to duty without coming inside, but in times of bad weather, that process needed to be changed, too.

Even gathering people from the jury pool has been impacted by the virus, with courts now needing to reach out to wider and wider pools in order to get the necessary numbers.

“The number of jurors that will need to be summoned to appear [will be] based upon our best guess estimates of what our response rate will be, based upon COVID within the community as well as people having basic fears for their health and safety,” said Welch.

Legal worries

It’s more than just safety some are worried about, but also how the virus and the court’s reactions to it will affect one’s right to a fair trial.

Brad Sylvester, a public defender in charge of the Sedgwick County Conflict Office, said one of his colleagues who did a trial felt as if she couldn’t do her job to the fullest extent.

“Our side was concerned with how would a jury adjust to the lack of really any close contact with anybody,” he said. “The attorney that did the trial, she said that there was that difference. She felt like she couldn't connect to the jury like she might normally.”

Many attorneys told The Capital-Journal that the ability to see one’s facial expressions is crucial, and masks and barriers could impede the jury’s ability to judge one’s credibility. In Topeka, there are potential plans to provide clear masks to get around that issue, while in Sedgwick County, face shields have been bought to help address that.

Glendening, the Topeka-based public defender, said she has concerns over whether the juries will be less diverse and representative if more folks opt out of jury trials due to virus concerns. She also wondered whether jurors will penalize the defendant over worries of possibly catching COVID-19.

That’s why adhering to protocols is so important, said Stanton.

“We have to make sure that people feel safe. If you're a juror in a courtroom, and everybody's pulling down their mask to talk, it's that perception dispersed that creeps into the juror’s minds as to whether or not they are safe,” he said.

Stanton himself worries how the virus will impact one’s right to a public trial. He even suggested to Reno County’s courts to hold trials outdoors.

“The public is not able to come into the courthouse as freely as they need to, perhaps in a constitutional sense,” said the Reno County DA. “The whole idea of a public trial is that a person can come in off the street and observe the proceedings.”

But the county courthouse now has restrictions on who can come in or not because of COVID-19, and only those who have business with the courts can come in. In addition, because of social distancing, fewer people are able to observe a trial in person.

“It's not technically a public courthouse,” Stanton added.

Finally, some attorneys worry about more mistrials occurring thanks to the coronavirus. If a witness is experiencing COVID-19 symptoms and cannot come, that could put the whole thing in wack.

“Because we never know whether the witnesses for day to day are going to be allowed to come to court, it makes it very difficult to have a jury trial, especially when it comes to witnesses who are having symptoms,” said Stanton.

No end in sight

Sedgwick County has made the most progress when it comes to resuming jury trials, and O’Connor hopes that by mid-January, higher-level cases will begin to be processed.

But at its current rate, O’Connor doesn’t think the case backlog will get cleared anytime soon.

“In terms of making a dent into cases, it's probably not much of a dent at this time, but it's the best that we can do,” he said. “It's all subject to change on a daily basis. Because you never know, if there's a surge in COVID cases, it may shut us down again.”

That’s what happened in Reno County, which has shut down jury trials after discussions with the county health officer.

Shawnee County was set to start its first jury trial Nov. 16, but that’s been delayed to December, said Welch. The defendant has been in custody, and the county department of corrections was experiencing some COVID-19 concerns.

“Given the the rate of transmission and the increasing cases in the community, we're not entirely sure,” she said of a future date. “It may not be a responsible choice for us to make to bring people into the courthouse for a jury trial.”

All of that is to say that in addition to complicating how jury trials are done, the virus could very well delay the wheels of justice from even rolling.

Plexiglas barriers were installed in a Wichita courtroom to address COVID-19 concerns.