It was New Mexico's first jury trial since the pandemic crippled the U.S. criminal justice system, and defense attorney Roberta Yurcic was nervous.
The court had erected a plexiglass panel on the defense table as a shield against the coronavirus, and Yurcic could communicate with her client by passing notes through a hole in the barrier. But the man charged with drug trafficking could not read or write, so she felt she had choice but to get close.
“I basically had to prioritize effective assistance over his safety and my safety," Yurcic said.
Similar dilemmas have arisen in courtrooms across the U.S. Even as confirmed virus cases climb in many states, some courts facing a growing legal backlog are beginning to hold jury trials again. Some attorneys complain that added safety measures are not enough and that they infringe on the constitutional rights of the accused.
Many courts are mandating masks for everyone, screening people for fevers and spreading jurors out in seating typically reserved for the public. Some are limiting the number of people allowed in courtrooms and streaming video of cases to allow the public to watch remotely.
The problem began to take shape this past spring, when thousands of jury trials were put on hold because of the virus crisis. The moratorium remains in many places. To keep the wheels of justice turning, judges have turned to videoconferencing to hold some hearings, and at least one civil jury trial was held via Zoom in suburban Dallas.
Courts in some communities are considering picking juries by video or moving jury orientation or the trials themselves to bigger spaces, like convention centers or schools. Others have installed plexiglass barriers around witness stands or in jury boxes.
Lawyers say they fear for their own health — especially older attorneys who are more at risk for complications from the virus. Others worry that their clients will not get a fair shot because distracted jurors will struggle to focus on evidence or rush through deliberations to get home quickly. Masks, the attorneys say, make it impossible for jurors to assess a witness' credibility because the coverings obscure facial expressions.
“If the conditions are such that we can't give people the constitutional protections they were promised, we have to wait until we can,” said Joshua Hedrick, a Knoxville, Tennessee, defense attorney scheduled to try a carjacking case later this month. “These are rights that we have as people, and they don't go anywhere just because its inconvenient.”
Prosecutors opposed Hedrick's bid to delay the trial, saying justice cannot wait for the virus to disappear.
"There is a very strong likelihood that COVID-19 will be present in our community through next year and possibly years to come. We cannot shut down the court system and wait for the situation to be perfect before we start back trying cases,” a prosecutor told the judge in a court filing.
Defendants will undoubtedly bring constitutional challenges to the coronavirus restrictions, but it's unclear how successful those will be, said Paula Hannaford-Agor, director of the Center for Juries Studies with the National Center for State Courts. Court leaders are trying to balance public health concerns with the rights of the accused, she said.
“There is certainly no case law out there that talks about this,” she said.
Legal deadlines and looming backlogs of unresolved cases are forcing halls of justice to get creative to give defendants their day in courts not built for social distancing.
In the small central Illinois city of Monticello, a middle school is being turned into a courthouse to hold trials. Judges in Columbus, Ohio, are holding traffic and eviction hearings at the city’s convention center. At the city's Franklin County Court of Common Pleas, plexiglass surrounds the witness stand so people testifying can remove their masks, and jurors are divided by plexiglass barriers, said Administrative Judge Stephen McIntosh.
"We can't guarantee that you cannot catch the coronavirus, but I think we’ve put in sufficient precautions and steps here to protect them as well as we can in the court environment," the judge said.
In federal court in Charlotte, North Carolina, a nurse hired to take people's temperatures as they enter the building has the power to turn anyone away, said clerk Frank Johns. After each witness leaves the stand, a court worker cleans the Bible the witness placed their hand on when they took the oath and the chair they sat in.
When lawyers and the judge need to have a conversation out of the earshot of the jury, they used to huddle up near the bench. Now they stay seated and chat over a walkie-talkie-like system while court staff pump white noise into the room so no one else can hear, Johns said.
The first case to move forward since jury trials resumed yielded a not-guilty verdict, hitting home the importance of holding trials despite the challenges, Johns said.
The defendant in that case would “still be sitting in prison as we speak waiting if we hadn’t pushed through with these trials," Johns said. “We all kind of looked at each other and said ’Wow, that’s why we have got to do this.'"
In Hennepin County, Minnesota, the judge who presided over the first jury trial to happen after the coronavirus halted cases landed in quarantine days later when a member of her staff came down with the illness, The Star Tribune reported.
That's why Yurcic says the risk of holding jury trials remains too great.
“I love this system. I love the job that I do ... but I don’t think we can justify taking on those risks,” Yurcic said. “Yes, I’m a lawyer, but I’m also a wife. I’m a mom. I’m a daughter, and I don’t want to die doing this job.”