WHERE DO WE GO FROM HERE?

Usually when I set out to write something here it is because I have an idea. I think there’s an issue out there that I can add a perspective to, be part of the solution to something. Not today. All I have are questions.

It has now been about six weeks since our courts ceased to function in a way even close to normal times. It will likely be another month before we even begin to inch back towards normalcy. I fear it may be much longer than that before we have a fully functioning justice system again.

Jury trials are the lynch pin of the criminal justice system. Sure, most cases resolve short of trial, but the prospect of trial is the great equalizer. If prosecutors and judges (and sometimes even the accused) don’t act reasonably, we have the option to “take it to the box,” and let twelve members of our community step in and resolve our dispute.

Conducting trials seems next to impossible if we are to comply with social distancing and social distancing seems here to stay for the foreseeable future, unless we want to return to shelter-in-place orders shortly after they are lifted. Picking a jury requires bringing anywhere from sixty to one hundred potential jurors into a courtroom. No courtroom can handle that capacity if people are expected to keep six feet of distance. Once selected, a jury sits in the box, in close proximity to one another. Courtrooms are designed so that the jury is in close proximity to the witnesses as they perform their function of assessing those witnesses credibility and acting as finders of fact.

It seems certain to me that it will be much harder for litigants to receive their day in front of a jury for at least the remainder of 2020. Orange County, for instance, has already announced that they will limit the number of jury trials that can be conducted at one time and that they anticipate significant difficulty in compliance with jury summonses.

A lack of access to jury trials will significantly impact prosecutors’ and courts’ incentive to resolve cases. The only immediate consequence of a failure to make a reasonable offer of settlement is likely to be that the defendant sits around waiting, not an attractive option for those in custody particularly as jails become breeding grounds for the virus.

So, that’s the problem. What is the answer? I do not know yet. But I do know our justice system does not function without access to jury trials and jury trials are not something that can happen virtually; they require bringing people together in the same place, often in close proximity. Some how, some way, we must be able to continue to do that or the system as we know it will be more broken than it was before the pandemic.