Thomas Jefferson once described trial by jury as "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." In a year that has featured the country's founding document getting even shorter shrift than usual from elected officials, that offers us extra cause for concern. That's because—along with our freedom to operate businesses, gather with friends, travel, and worship as we please—jury trials in which justice is supposed to be delivered for plaintiffs, defendants, the accused, and crime victims alike have largely been curtailed since the beginning of the pandemic.
Headlines from across the country deliver the bad news of a court system on hiatus in disconnected pieces.
In September, after Massachusetts courts had theoretically returned to business for two months, WCVB noted that jury trials had yet to occur. "That's more than 1,800 jury trials that have not happened so far this year and court business is not expected to return to normal anytime soon."
"State and federal courts in the city have been able to complete only nine criminal jury trials since the pandemic hit in March," The New York Times reported last week of the situation in New York City. "Last year, there were about 800 criminal trials in the city."
Scattered across the country, the news stories offer glimpses of a judicial system that is barely even trying to live up to the Sixth Amendment guarantee of "the right to a speedy and public trial."
"More than 400 defendants have been waiting inside New York City jails for over two years for their cases to be resolved," the Times story adds.
The National Center for State Courts has tried to stay on top of responses to the pandemic below the federal level. "Restricting or ending jury trials" is listed first among five of the "most common efforts state courts are taking to combat the coronavirus" on the organization's website, which notes which courts are holding trials and which are not.
Kirsten Tynan, executive director of the Fully Informed Jury Association, delved into judicial systems across the country to discover the status of jury trials in state and federal district courts alike, as well as in many local courts. She posted her findings online in an Excel spreadsheet, which shows dozens of the country's federal district courts having suspended jury trials for periods of time ranging from through-the-end-of-the-year to indefinitely.
She also records 16 state judicial systems having suspended jury trials. Some of the state systems listed as permitting jury trials are partially shut down anyway, subject to local closures. That includes California, where Contra Costa County and Riverside County have halted trials in recent days.
In each of these jurisdictions, any business of the courts that relies on juries is on hold, and people awaiting the outcomes of jurors' deliberation are cooling their heels. That includes many defendants just like the 400 New York City prisoners who have languished while the wheels of justice grind even more slowly than usual—if at all.
"We have tacitly permitted our government to wield against us the very power that trial by jury was intended to prevent it from ever gaining: INDEFINITE DETENTION," Tynan pointed out as she gathered court data.
Given the constitutional guarantee of a speedy trial, how have the courts justified leaving prisoners behind bars and victims awaiting verdicts for months or longer? In many cases, they've just waved away such concerns.
"The continuances occasioned by this Order serve the ends of justice and outweigh the best interests of the public and defendants in a speedy trial," ruled the Supreme Court of Illinois in April.
"The continuances occasioned by this Order and [previous orders] serve the ends of justice and outweigh the best interests of the public and criminal defendants in a speedy trial," the Massachusetts Supreme Judicial Court announced in nearly identical language (apparently, magical legal thinking is at least as contagious as coronavirus). "Therefore, the time periods of such continuances shall be excluded from speedy trial computations."
Excluding continuances from computations for speedy trials is extremely important. While the vast majority of criminal defendants never see the inside of a courtroom—only about two percent of federal cases go to trial (a big problem in itself as defendants are strong-armed into plea bargains)—setting trial dates establishes timelines for resolving legal matters.
"Having a specific jury trial date scheduled makes a huge difference in moving cases along and getting parties talking, attorneys and court officials say," Jenni Bergal noted this week at the Pew Research Center's Stateline blog. "That often results in plea agreements and dismissals in criminal cases, and settlements in civil ones."
Without court dates, defendants can be stuck for months or years behind bars in conditions that are brutal at the best of times. During a pandemic, life locked in close quarters with other prisoners can be especially dangerous.
"At least 231 people have died from COVID-19 in Texas correctional facilities," University of Texas at Austin researchers reported last month. "This includes staff, jail, and prison deaths… 80% of people who died in jails from COVID were not convicted of a crime."
Of course, even if COVID-19 were to disappear tomorrow, keeping people incarcerated indefinitely without trial would still be unjust and a violation of constitutional guarantees.
In fits and spurts, some courts are trying to get the creaky apparatus of justice moving again. A few have experimented with jury trials via remote conferencing software. Others require social distancing for jurors participating in proceedings. Whatever the outcome, though, it can't undo the life and liberty lost to a system that was unprepared to live up to guarantees of due process.