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Trial run: Staging for juries’ possible return to courtrooms

By Bruce Vielmetti, Milwaukee Journal Sentinel

When most public life ground to a halt in mid-March to thwart the rapid spread of the coronavirus, a few essential court functions continued in Milwaukee County. Jury trials were not among them, and will likely be the last to return.

Milwaukee County officials hope that might be next month and have been feverishly meeting, planning and practicing how to conduct trials safely amid the continuing concern of infections. Of all that happens in courtrooms, jury trials put the most people in the closest contact for the longest time.

Milwaukee’s federal court has a longer horizon for juries to return but did a trial run Thursday at how in-person hearings for a guilty plea or a sentencing might work. There were lawyers at counsel tables and Chief U.S. District Judge Pam Pepper at the bench, all in masks.

They were joined by some federal court staff and a local health official tasked with working out safe spacing, placement of plexiglass barriers and how best to make a hearing work on Zoom for parties who can’t or don’t want to come into the courtroom and members of the public who might ordinarily watch from the gallery.

The test was itself held on Zoom, where a reporter watched. Pepper and lawyers and court reporters (who were connected by Zoom) discussed whether everyone could be heard well, better ways to be seen, how to handle sidebar conferences and display documents so everyone in court, and participating remotely, could see them.

One good idea that arose: Include a short primer about how to use Zoom for people who haven’t used it yet, so they’re not flummoxed and hold up the start of hearings.

“We need to get the word out,” Pepper said. “We’re still going to have video for a long time. This (exercise) is for those defendants who insist on in-person hearings. It’s going to be more of a deal for everyone, an undertaking.”

Milwaukee County officials have done similar walk-throughs at the courthouse complex. Chief Judge Mary Triggiano said its important to keep everyone safe.

“Access to justice is important, and we’re also aware of the impact on lawyers’ livelihoods,” she said. “So it’s even more important for everyone to be patient and to be kind to each other.”

Weeks ago, Triggiano condensed all the county’s criminal branches into two courtrooms in the Criminal Justice Facility, with rotating judges. Next week, she said, seven more courtrooms will open for criminal cases.

Two of the largest courtrooms are being prepared for a very limited return to jury trials in July.  She said the county may not clear its growing backlog of trials until 2023.

“Half the people are anxious and nervous about the health of themselves or family,” Triggiano said. “The others say they’re more risk tolerant, they can handle it.

“Both sides need to take a look at us landing in the middle. We have a huge responsibility for safety. We can’t promise anyone you’ll be 100% safe.”

In Minneapolis, a judge and someone on her staff were in quarantine this month after the staff member tested positive for the coronavirus after a two-day jury trial June 1-2. Officials said the judge and staff member were never in close contact with any jurors, who were farther away, behind plexiglass, and wearing masks.

Bayfield County, near the Apostle Islands in northern Wisconsin, had the state’s first post-lockdown trial back in late May, a felony sexual assault case that had been charged in 2018. Jury selection was done at Washburn High School’s gymnasium after each prospective juror went through screening.

Circuit Judge John Anderson said the county had been preparing, assuming what the Supreme Court would advise, and had mostly guessed right. The plan was approved two days after the court’s May 22 order, and the trial started May 26, the date that had been set before the emergency orders.

Anderson said he expected coronavirus concerns and sent jury summons to 72 people. Around a dozen expressed health concerns, and were deferred to a later duty cycle. Others were excused for other reasons.

Of the 44 who appeared at the gym, seven were turned away by the health screening.

The trial itself was held over three days in the normal courtroom. Jurors were spaced apart in the jury box and in chairs outside the box. Everyone wore masks. Any members of the public had to watch a live stream into a separate room, or from home via Zoom.

Witnesses exchanged masks for clear plastic face shields during testimony, Anderson said, which didn’t work too well; the shields caused glare and made it harder to hear. Next time, he said, they will probably try plexiglass barriers.

The jury stayed in the courtroom for lunches, and deliberations, and the usual jury room was used as a staging area, Anderson said.

“I wouldn’t want to do one of these every week,” he said, because of all the extra staff time it demanded, from sanitizing the witness stand after every witness, to monitoring the public viewing room.

Barron County Circuit Judge Maureen Boyle held a jury trial in a termination of parental rights case June 1. She said it went well, though slower than normal because of all the extra precautions.

Boyle said some jurors expressed some concerns about the coronavirus, but understood and accepted that officials had taken all the steps they could to reduce the risks.

Boyle also serves as Chief Judge for the 10th Circuit, and has approved other small, rural counties’ plans to reopen court functions. While most incorporate many of the same practices, she said each county’s population and facilities differ, especially Milwaukee.

“They’re smart to take their time and figure out what might work best,” she said.

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