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Lawyers Denounce Non-Essential Jury Trial

Yesterday, a judge in Ohio took an unnecessary risk by forcing a jury to assemble for a non-essential trial. Doing so endangered the health of everyone in the courtroom and threatened the defendant’s right to a fair trial. For these reasons, the Ohio Association of Criminal Defense Lawyers (OACDL) denounces the judge’s decision.

On January 14, 2020, Seth Whited’s case was scheduled for a jury trial to begin on April 28, 2020. Weeks before the trial, the Ohio Department of Health ordered people to stay-at-home and prohibited gatherings of more than ten people. The Ohio General Assembly passed legislation tolling speedy trial, and the Ohio Supreme Court issued guidance to local courts recommending “granting of continuances for non-essential court appearances”.

This was a non-essential court appearance. Mr. Whited was not in jail, his speedy trial rights had been tolled, and he asked the judge to postpone (“continue”) his jury trial due to specific concerns about COVID-19. Rather than grant the continuance, however, the judge began the trial.

The purported justification for holding a non-essential trial during a global pandemic was that the right of the alleged victims to justice had been impeded by multiple continuances. However, alleged victims are represented by victim advocates from the prosecuting attorney’s office, and the prosecuting attorney’s office filed a document indicating it had no objection to Mr. Whited’s request to continue the trial. It wasn’t the alleged victims pushing to go forward with the trial; it was the judge.

The decision to go forward with trial is indefensible when the full facts are known. The defense attorney informed the judge that the attorney had direct contact with a client at Marion Correctional Institution who tested positive for COVID-19. As a result, the defense attorney was under a physician’s quarantine recommendation at the time this trial was to be held. The defense attorney shared the physician’s quarantine recommendation with the judge.

Despite this information, the judge persisted in gathering a large group of people for the trial. In the courtroom, with the attorney ordered to quarantine, were dozens of jurors, Mr. Whited, the prosecutor, a bailiff, a court reporter, other court personnel. Wearing masks was not required, and the court did not have enough masks for all the prospective jurors.

During the jury selection process, Mr. Whited began showing symptoms of COVID-19 and was rushed to the hospital. An initial test was negative for COVID-19, but additional testing is likely. Mr. Whited was discharged from the hospital with an order to quarantine. The judge, nevertheless, ordered Mr. Whited to appear in court the next day.

Many prospective jurors feared for their safety. Those who requested to be excused due to health concerns were callously interrogated on live-streamed video. They were overheard
speaking in the hallway regarding their wishes to leave the courthouse and their concerns about COVID-19 exposure and infecting their families.

Jury service is normally associated with feelings of satisfaction for fulfilling a civic duty. It is the most direct and impactful way for citizens to connect to the Constitution. It is more dynamic and involved than voting, and it is the cornerstone of our democracy. Jurors often express feelings of honor, duty, and pride regarding their service. The prospective jurors summoned for yesterday’s trial likely do not express those feelings. Imagine serving your civic duty as a juror, only to find out you may have contracted COVID-19 from one of the lawyers and spread it to your family.

In addition to the unnecessary risk of harm caused by yesterday’s events, the scenario also threatened the defendant’s right to a fair trial. Jurors would understandably have difficulty carrying out their constitutional duty under the crushing weight of legitimate fear for the safety of themselves and their families. The defense lawyer would likely be unable to provide effective assistance of counsel in those circumstances. In fact, defense counsel shared this precise concern with the judge. The day after Mr. Whited’s hospitalization, the judge finally relented and continued the trial for two weeks.

While it may be that Mr. Whited and his lawyer do not have COVID-19, it may also be one or both of them do. Whether they do or not misses the point. The point is this: there is no justification for holding a non-essential jury trial in the midst of a pandemic with a lawyer who has been ordered to quarantine following contact with a known carrier of the virus.

The OACDL is not suggesting judges should hold no trials during this health crisis. There are likely circumstances in which trials must held during this pandemic, but this was not one of them. Individual judges are given discretion to make decisions about continuing trials, and this judge chose unwisely. Doing so threatened Mr. Whited’s right to a fair trial and recklessly endangered the health of many people in that courtroom. The OACDL urges judicial leaders to critically examine the serious impact of COVID-19 when deciding whether to hold trials during this health crisis.
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OACDL contact information:
Susan Carr, OACDL Executive Director: susan@oacdl.org
Shawn Dominy, OACDL President: shawn@dominylaw.com