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Editorial Advisory Board: The final phase of reopening the courts

As ordered by Chief Judge Mary Ellen Barbera, the fifth and final phase of reopening the courts to the public will occur on Oct. 5, 2020. Yes, in less than one week, all Maryland courts will be open to the public and jury trials will begin in earnest. Or will they?

Jury members are supposed to represent a broad cross-section of the communities in which they sit.  We wonder how this is even possible if elderly citizens, citizens with compromised immune systems, and citizens assisting their children in virtual classrooms are either excused by the Jury Commissioner or simply refuse to show up during this pandemic.

And who can blame them? No one wants to sit elbow-to-elbow in a jury box  during trial and or deliberate in cramped jury rooms. Jury trials are not conducive to social distancing.

And those citizens who do report for jury duty out of fear of retribution are, no doubt, not going to be happy campers. The last thing a plaintiff in a civil lawsuit wants is a jury thinking “why are you making us do this?” Nor would a defendant in a criminal trial feel that justice has been served when the jury cannot be one that is representative of the jurisdiction where his or her trial takes place.

We recognize the extreme difficulties facing the court system during this pandemic; however, some of recommended ‘fixes’ as offered by the Jury Work Group set up by Barbera are not ‘fixes’ at all.

For instance, the group recommends that, in civil cases, voir dire be accomplished on Zoom. This is not practical for the simple reason that not all citizens have access to a computer. If the work group’s recommendation here is to intentionally exclude citizens without computers in civil cases, then we have a much larger problem than the pandemic.

Another recommendation from the group is to use “parts of the [courtroom] gallery to socially distance jurors if needed during trials.” This, too, may be problematic in small courtrooms as it may conflict with the constitutional right to a public trial that exists for the benefit of the parties and the public. While public access to trials might be remedied, in part, by livestream technology, it will be a battle of the perfect being the enemy of the good. It’s  a step.

What is still looming and unresolved is meeting the constitutional obligation of the trial courts to ensure a speedy trial under the Sixth Amendment and under Maryland Rule 4-271, also known as the Hicks rule requiring that a defendant be tried within 180 days after his first appearance in court.  State v. Hicks, 285 Md. 310 (1979). It has been more than 175 days since the trial courts closed to criminal cases. This right cannot be suspended indefinitely.

These are difficult times for everyone, and we appreciate the hardship that the suspension of jury trials has upon all litigants, especially criminal defendants who are incarcerated or under a home detention order pending trial. However, we still are in the midst of a pandemic.

On Sept. 22, Dr. Anthony Fauci, the country’s leading infectious disease expert, stated that “the U.S. is ‘entering into a risk period’ as the weather gets colder and Americans will need to step up social distancing measures in order to prevent coronavirus infections from surging.”

Given this, we believe Chief Judge Barbera ought to reconsider opening the courts for jury trials on Oct. 5 because citizens should not have to choose between their health and their civic duty to serve as jurors. At the same time, the Court of Appeals must consider and adopt relief for detained defendants being denied a speedy trial by the current legal artifices.

Editorial Advisory Board Chairman James B. Astrachan is the spouse of Circuit Court Judge Julie R. Rubin.

Board members Susan Francis, Leigh Goodmark and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

Julie C. Janofsky

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.