U.S. District Judges Robert Conrad Jr., left, and Federico Moreno

A new report from judges and lawyers assigned to examine the issues and potential pitfalls confronting federal courts looking to resume jury trials during the global pandemic illustrates just how many novel and confounding questions COVID-19 raises.

The 16-page report from the jury subgroup of the federal judiciary's COVID-19 Judicial Task Force, titled "Conducting Jury Trials and Convening Grand Juries During the Pandemic," highlights the difficulty of bringing groups of people together in confined indoor spaces when public health officials  urge avoiding them. The goal is to "minimize the risks to all participants."

"Our report strives to balance the need to resume jury trials with a court's responsibility and obligation to protect the health and safety of jurors, other trial participants, court employees, and the public," said U.S. District Judge Robert J. Conrad Jr. of the Western District of North Carolina, who chaired the subgroup. "There's no one size fits all for everybody, even for a district," he said Thursday in a telephone interview.

U.S. District Judge Federico Moreno in Miami was the only Florida judge on the committee. He was not available for comment.

The report from the outset notes its guidelines — down to precautions for swearing on a Bible — are simply suggestions and each of the nation's 94 federal districts will have to chart its own path.

The group flagged issues ranging from the practical and previously unthinkable, such as having cleaning personnel continuously wipe down the handrails of courthouse stairwells due to limits on elevator capacity, to potential adaptations that might raise constitutional issues.

Suggestions include taking unanimous criminal verdicts from 10 or fewer jurors and remote testimony despite defendants' confrontation clause rights.

For oaths, the panel suggested placing the Bible "under clear, single-use plastic covering." If judges and witness boxes are too close, witnesses could move to a socially distanced skirted table.

The report suggests courts should set up one courtroom on "an experimental basis" to test modifications such as the addition of plexiglass and rearranging seats before instituting courthousewide changes.

Keeping the tight federal budget in mind, a suggestion was made to order lunch at jurors' expense to keep them from leaving the courthouse until deliberations when the government picks up the tab. Pens used by jurors would be trashed after trials — or they could use their own.

Since public transportation is a reimbursable expense, parking could also be covered, but the report cautions, "Of course, the court should consider the significant cost increase."

It also urges courts to consider conducting a mock trial in a designated courtroom using federal defenders, federal prosecutors, representatives of the clerk's office, court reporters and judicial personnel to test modifications and new equipment before moving forward with a live trial. Broward Circuit Chief Judge Jack Tuter is doing a series of trial experiments in his circuit.

When it comes to jurors, the report notes a difference between the standard inability to serve and the unwillingness to serve in a health crisis. Courts were advised to make arrangements to maintain social distancing and clearly communicate what actions are being taken to protect juror safety. That said, the report tells courts to expect more jurors to ask to be excused due to their own health concerns and those of their loved ones.

"Plan for a lower yield from the jury pool during the pandemic," the report said. "Even healthy jurors not considered particularly vulnerable to COVID-19 may hesitate to serve for a variety of reasons: to avoid the risk of exposing other members of their household to the virus; to care for children who no longer have school or summer activities to attend; to look for work if they have recently lost their employment; or because they have recently returned to work and cannot afford to take leave."

The committee consisted of 10 federal judges from across the country, a court clerk, circuit executive, federal prosecutor and federal public defender. The report notes it will be updated as individual courts prepare their own relaunch trial guidelines.

Federal criminal juries have resumed in Dallas, Lexington, Kentucky, and Raleigh, North Carolina, Conrad said Thursday. He is scheduled to preside over his first trial since the coronavirus shutdown starting Monday in the case of an ex-felon charged with illegal possession of a weapon.

In Conrad's Charlotte, North Carolina, court, six spectator benches have been removed and replaced by chairs and monitors to accommodate a jury, and jury selection will be done with 16 people at a time. He calls it "attempting to reconstitute the jury in the pandemic age."

Read the report:

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