Covidtopia: Playing With Fire In Connecticut Courts

Finally, something that sounds like reliable information about the COVID-19 pandemic and the courts in Connecticut.

            A client of mine faces federal narcotics charges. His case was set for trial in early December in Hartford. At a pre-trial conference with a federal judge moments ago, his case was continued until July 2021.(An earlier version of this article mistakenly said 2022; thanks to Chris Latronica for calling me out on the error.)  His trial was continued in the interest of justice.

            Why so long?

            It turns out the federal courts have retained an expert immunologist in Massachusetts. (I am not going to put his name in this blog so as to spare him gratuitous phone calls.)

            Based upon his assessment of the risk of trial in a case drawing jurors from Hartford and Windham Counties, it appears that the risk of infection for trial attendees would be anywhere from 18 to 30 percent if 25 or more people were gathered together for any length of time. It takes a jury of 12 plus alternatives, plus lawyers, judge, marshals, witnesses and court staff to hold a criminal trial. Fewer people are necessary in a civil case.  These numbers are stunning: Why no public report of them? 

           That's the good news: apparently things are expected to get worse before they get better.

            Also, while the statewide infection rate hovers around 3 percent of those tested, the infection rate is higher in Hartford County.

            I was relieved to hear solid data, and even more relieved to learn that the federal courts had retained an expert to advise on these excruciatingly difficult decisions.

            Also of interest is a factor of which I was not previously aware.

            Last month, a civil jury trial took place in Bridgeport, Connecticut. I reported that only two of the 34 jurors questioned raised serious about COVID-exposure, a number that struck me as implausibly low.

            It was not only implausible. It turns out it was misleading.

            Jurors were given the option to opt out of jury service and avoid questioning altogether if they had serious reservations about the pandemic. Those making such an election were never questioned. Hence, the two who ultimately raised questions about it during questioning were part of a larger subset of folks excused from service. I did not learn how many jurors had opted out before questioning.

            The court also noted that special concerns relating to criminal trials are as yet unresolved. Consider the confrontation clause of the Sixth Amendment, a right guaranteeing to defendants the right to “confront” witnesses against them.

            Does this right mean that a defendant can require a witness to unmask during questioning? This is apparently an undecided issue.

            I favor unmasking only because confrontation and cross-examination are a uniquely personal form of combat. Reading a witness’s facial expression, the wavering of their gaze, the lowering of their lip, an inadvertent snicker, frown or sneer, these are all subtle tells to an experienced cross-examiner. Permitting a witness to testify from behind a mask seems wrong to me. I want to see the face of a person whose credibility I am challenging in full display of a jury.

            The right to confront witnesses in such a fashion does not obtain in a civil case. I can well imagine trials taking place with masked witnesses, although, candidly, I’d still object to the practice.

            We’re now in the exact opposite of the position that obtained in Orange County, California last week. A federal judge there, Cormac Carney, dismissed an action because a defendant was not brought to trial in a timely way, a violation of his right to speedy and public trial, another Sixth Amendment staple.

            In the California case, however, the federal judge noted that across the street from the federal court, in the state courts, some 80 criminal jury trials had been conducted in the summer and early fall. How could something be safe on one side of the street, but too hot to handle on the other? Judge Carney concluded there was no pandemic exception to the Bill of Rights. Of course, he’s right.

            There have been no trials in Connecticut. How do we proceed now?

            Slowly, seems to be the right answer.

            So now we are left with the following: The federal courts have retained an expert who advises of a serious and substantial risk to public health if groups of a size sufficient to conduct such a criminal trial are gathered. In the meantime, the State of Connecticut is issuing juror summonses and requiring large groups to gather in its courthouses.

            Is it too much to ask the state and federal courts to pool their resources, come up with metrics that objectively calculate the risk, and then distribute that data to the general public? This isn’t the sort of information that should be kept secret. Eight months into this adventure and most of us are hungry for this sort of data.

            If it is too risky as a matter of public health to hold a trial in Hartford federal courts until well into next year, it is too risky to hold trials in the Hartford state courts next month, or any time soon.

            And, by the way, here’s the question I wish I had asked:  How much higher than three percent is the positivity rate in Hartford these days? Do I find that out after attending a court hearing and getting sick?



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