Peter Vieth//September 28, 2020
Peter Vieth//September 28, 2020//
With elaborate preparations, Virginia courts are holding jury trials again, even in the midst of the pandemic.
Henrico County was first, holding jury selection in a two-day drug case on Sept. 15. But Stafford County and the U.S. District Court in Abingdon both empaneled juries the next day. At mid-September, Norfolk Circuit Court was preparing for its first jury trial as other courts waited for approval of their infection control plans.
Judges in Henrico and Stafford said teamwork is the key to making things run smoothly, since trials involve cooperation among a wide variety of players.
Henrico holds mock trial
Henrico County staged a full-scale practice run before embarking on a return to real jury trials.
Recruiting about 25 people for the various roles involved, Chief Judge James S. Yoffy staged a mock trial to test the systems, including juror parking, movement through the courthouse and the rigors of trial.
The mock trial highlighted several issues that needed to be addressed.
“Quite frankly, it was a mess,” said Deputy Commonwealth’s Attorney Michael Feinmel. He said people couldn’t hear very well and one masked juror had a near panic attack as jury selection dragged on.
One lesson learned was it’s best to keep things moving along, Feinmel said.
“I’m glad the things that could go wrong went wrong during the mock-up trial,” Yoffy said Sept. 21.
For the real trial Sept. 15-16, “It just flowed perfectly,” the judge said. The parties picked a jury in about an hour and 15 minutes, Yoffy said. No one was struck for cause.
Safety measures included Plexiglas barriers, frequent cleaning and social distance measures.
For voir dire, jurors entered wearing both face masks and face shields. They were told to remove the masks as they answered questions from the court and the lawyers, so their facial expressions could be seen through the clear face shields.
After voir dire, the jurors were told they could use masks under the face shields as they wished, said Assistant Commonwealth’s Attorney Terrica M. Taylor, who prosecuted the drug trial of Anthony J. Phillips.
“During arguments and evidence, I could see all their faces and their expressions,” said defense counsel Kevin E. Calhoun of Richmond.
Witnesses – seated away from others in the courtroom – did not wear masks during their testimony, Yoffy said.
“I think the jury has a right to see the witnesses, to judge their credibility,” Yoffy said.
Yoffy praised the sheriff’s office and the county cleaning crew for their long hours to make the trial work. The entire courtroom was wiped down during every break in the trial, participants reported. The sheriff provided extra deputies to handle jury movements and trial procedures.
“The deputies really did go above and beyond to make sure everyone was comfortable at all times,” Taylor said.
Part of the comfort for jurors was information provided up front to explain all the precautions. A video was available to lay out procedures, and the judge explained all the safety measures at the start of jury selection.
“While we were very lucky, I like to think that all this good information that is being given up front is what is making the jurors feel more comfortable,” said Commonwealth’s Attorney Shannon Taylor.
Phillips – facing up to 10 years for having drugs in jail – was convicted of three counts of simple possession and received a three-year sentence. Both sides expressed satisfaction with the outcome.
With a successful trial now under its belt, the court has a jury trial scheduled every week through the middle of October.
“We are ambitious here in Henrico County,” Shannon Taylor added.
Jurors kept their masks on during the Sept. 16 trial of Jermaine A. Epperson in Stafford County Circuit Court.
Judge Victoria A.B. Willis said the only time anyone removed a mask during the trial was when a witness was asked if they saw the perpetrator in the courtroom. Everyone in the courtroom dropped their masks for a few seconds until the witness identified the defendant, Willis said.
Evaluating a jury panel wearing masks was not much of a burden, said Fredericksburg’s Benjamin T. Burchett, who represented Epperson.
“People still spoke clearly,” Burchett said. “I usually focus on those who speak up,” he added.
The chief difference in jury selection, participants said, was that it took place in a jury assembly room with 40 chairs placed six feet apart. Each juror was assigned a chair, and each chair had a water bottle and a dispenser of hand sanitizer, the judge explained.
A “makeshift courtroom” was set up at the front of the room, Willis said.
Only one juror seemed concerned about the risk of exposure, and that juror was not all that concerned, Burchett said.
The judge struck one of three charges against Epperson and the jury convicted him of two charges.
“It seems like justice was done,” said Commonwealth’s Attorney Eric Olsen.
Olsen said one lesson from the experience is that, “When you have a good, committed team and everyone pulling in the same direction, it gets done.”
Olsen said the judge has to be “involved and active,” and advocates must be willing to accommodate changes in their routines. Most importantly, he said, is the cooperation of court security. “They’re the most important component,” he added.
Burchett said, on reflection, maybe a defense lawyer could make a stronger objection to having to do voir dire with masked jurors, to preserve the point if needed.
In Abingdon, a federal jury on Sept. 16 followed similar safety procedures for the trial of a man allegedly caught with more than 500 grams of methamphetamine. U.S. District Judge James P. Jones ordered masks and social distancing, but he allowed the lawyers to remove masks when speaking to the court or questioning witnesses. Witnesses were allowed to remove masks when testifying, according to Jones’ pretrial order.
As with Judge Yoffy in Henrico, Jones determined to keep things moving during the trial. Opening statements were limited to 15 minutes each.
Clerk Julia C. Dudley of the Western District federal courts said the jury was seated in the gallery of the main courtroom to maintain spacing, and a different jury room was used for deliberations. Hand sanitizer was readily available, she said.
The jury convicted Tracy L. Brown of four gun and drug charges, but returned a not guilty verdict on one drug charge.
The first four courts to get jury trial approval were Alleghany County, Henrico County, Norfolk and Stafford County. Also, Fairfax and Prince William counties both had received jury trial approval as of Sept. 23.
Norfolk had not held a jury trial as of Sept. 24. Scheduled trials either led to pleas or were delayed, according to Chief Judge Mary Jane Hall.
“We worked very hard on our plan and we’re eager to get going,” Hall said.
Elsewhere, judges were eager to start cutting the backlog of cases waiting for jury consideration. “Roanoke City is ready, willing and able to begin,” said Judge Chris Clemens at a recent hearing, according to The Roanoke Times. Roanoke was not yet on the high court’s approval list. The city had 24 criminal cases in waiting, the paper said.
Charlottesville reportedly was asked to make a few changes to its plan and was still awaiting approval. Clerk Llezelle Dugger told The Daily Progress it was unlikely jury trials would be set before December.