January 11, 2020

The Challenge of Holding Jury Trials during the COVID-19 Pandemic

By Tina Nadeau

NH Superior Court Chief Justice

When I became chief justice of the New Hampshire Superior Court, I could not have known that I would lie awake at night thinking about how to balance constitutional   rights   to a fair and speedy trial with the threat of a pandemic, one that can result in death or serious ill- ness. Nor did I suspect that I would eventually learn so much about virology, filtration, and courthouse ventilation. Yet, since last March, I have done little else. We are all experiencing the strain and stress of the pandemic in our professional and personal lives; lawyers in particular are on the front lines every day defending constitutional rights while promoting public safety. I hope that the steps the judicial branch is taking to ensure open access to justice while protecting attorneys, litigants, our staff and the public will give those of you who work in the courts some peace of mind.

Shortly after Gov. Sununu declared a state of emergency, I convened a working group of court employees to devise a plan for the safe resumption of jury trials and grand jury proceedings. I also consulted with a working group that included attorneys from the New Hampshire Public Defender’s Office, the Association of County Attorneys, the Department of Justice, the New Hampshire Association of Criminal Defense Attorneys, as well as the chief victim/witness advocate for the state. Among other tasks, the court working group designed protocols to implement safe jury trials and grand jury proceedings during the pandemic. We worked closely with the state’s chief medical officer and hired an infectious disease expert, Dr. Erin Bromage, professor of biology at UMass Dartmouth. In addition to his background in disease transmission, Dr. Bromage has engineering expertise in the ventilation and filtration systems of large facilities. Relying on his expertise, we designed and implemented the State Court Jury Trial Plan, which includes extensive protocols for selecting juries, and procedures for the management of trials. The plan, which is regularly updated, can be found on the judicial branch website.

Among other protocols contained in the plan, all participants in jury proceedings are required to wear masks. Surgical- grade masks are provided to jurors and anyone entering the courthouse who does not have a mask. For witnesses, we have secured clear masks to ensure that jurors can view their demeanor while testifying. Though some attorneys have asked to speak without masks, those requests have not been generally granted. That is because we now know the virus spreads mainly through the distribution of aerosol and large droplets created when we breathe and speak. The amount of aerosols released by one person speaking is equivalent to the amount released by 75 people breathing. A fact I never thought I’d need to know to do my job.

In addition to mask protocols, each courtroom has been reconfigured so that all participants may remain sufficiently physically distanced. In some locations that means spreading the jury throughout the gallery and moving the witness stand. In other courtrooms, such as Sullivan County, it means safe jury trials are simply not possible during the pandemic. Although we have been able to conduct only seven criminal jury trials safely since August, resuming the trial schedule has helped many attorneys resolve their cases through a negotiated plea.

In some counties, I decided to cancel the resumed jury trials in light of increasing infection rates, especially in court- houses that are not adequately ventilated. Those decisions are made weekly based on metrics recommended by Dr. Bromage and in some cases after directly consulting with him. Each day I review several websites that provide updated information regarding infection rates, number of daily cases per 100,000, test positivity rates and hospitalization rates. Other websites pro- vide tools that assimilate the data and tell me by county the percent likelihood that one person in 25 will be infected with the virus. I then rely on advice from Dr. Bromage about the risk tolerance level for each county depending on the ventilation and filtration systems of the buildings.

For example, Hillsborough County, Northern District, is an optimally ventilated and filtrated building. That means the system can tolerate a MERV 13 filter, which actually strips virus from the air, and has at least six to eight full air exchanges per hour. As a result, even if there is a 70 percent chance that one person in 25 will have the virus, we can still conduct trials safely in that building because the likelihood of transmitting the disease there is extremely low. For a less optimally ventilated building the tolerance level is much lower.

The good news according to Dr. Bro- mage is that as long as we are strictly following masking, distancing and sanitizing protocols we will not likely experience transmission of the disease, even if some- one infected shows up in the courthouse. Based on his review of the current information regarding the virus, Dr. Bromage reports that the most likely way the infection is transmitted is when people are in a room not wearing masks, which occurs most often in workspaces where people are eating together. In fact, he has not yet seen reports of infection transmission in well- ventilated work spaces with strict mask compliance.

Even though we are attempting to conduct trials only when it is safe to do so, I appreciate that attorneys and advocates still need to prepare their cases by meeting with witnesses and clients under conditions that might not be ideal. Whether or not I decide administratively that trials in a given county must be cancelled, lawyers should always feel free to request a continuance whenever they believe they cannot effectively and safely prepare. Those decisions must be made on a case-by-case basis by the trial judge weighing the specific risks, constitutional rights of the defendant, and the parties’ need for a timely and fair trial.

We are all in this together, attempting to guarantee access to justice while trying to keep ourselves and our loved ones safe. There is light at the end of this tunnel, and I look forward to the day when I can watch talented lawyers practice their skills again in the courtroom confident that the pandemic is behind us.