What to Expect for Jury Trials During COVID 19 in Virginia

woman wearing mask

Partner Sebastian M. Norton Completes 4-day Jury Trial in Alexandria and gives his perspective on what to expect for jury trials during COVID 19 in Northern Virginia.

Jury Trials Before COVID 19

Since the outbreak of the COVID-19 pandemic in the United States in March 2020, a primary question within the legal profession has been when and how jury trials might resume.

Prior to COVID, the standard jury trial would involve packing a large group of potential jurors into one courtroom for questioning during “voir dire” (jury selection).

This could include as many as 40 potential jurors sitting side by side in the gallery area of the courtroom.

Of course, following jury selection, the 12 or more (including “alternates”) lucky individuals selected to serve on the jury would be seated side by side in the jury box for the duration of the trial.  Clearly, some things would have to change in order to safely resume jury trials in light of the COVID pandemic.

Jury Trials Suspended in Virginia Due to COVID 19

On March 16th, 2020 the Virginia Supreme Court issued its first Declaration of Judicial Emergency, suspending jury trials as well as speedy trial rights during the pandemic.

That first Declaration extended until April 6th, 2020.  There have since been 19 additional orders extending the Declaration of Judicial Emergency, currently through April 18th, 2021.

Jury Trials and Criminal Cases Resumed in Alexandria, VA

However, in the summer of 2020 the Virginia Supreme Court invited the local courts to submit COVID-19 safe plans for the resumption of jury trials to be approved by the Supreme Court.

Currently, 117 separate cities and counties have been approved to resume jury trials.  The initial plan submitted by the Alexandria Circuit Court was approved in late September 2020.[1]

Juror Selection During COVID 19

The Alexandria Circuit Court plan included, amongst other things, a detailed questionnaire for potential jurors, staggered entrance into the courthouse of potential jurors, a seating area for potential jurors 6 feet apart within the hallway of the Circuit Court, plastic partitions within the courtroom itself and a courtroom configuration altered to accommodate the jury sitting in the gallery of the courtroom (see below).

A few notable differences in the courtroom set-up are that the members of the jury sit 6-feet apart in the gallery of the courtroom, the witnesses testify from the traditional jury box (each witness sitting in a different chair than the previous witness), the counsel tables have plexi-glass dividers and are positioned closer to the judge facing in a diagonal direction out toward the jury in the gallery and toward the jury box where the witnesses sit.

What to Expect for Jury Trials During COVID 19 in Virginia

Our COVID-19 Jury Trial Experience in Alexandria, VA

We were fortunate to participate in one of the very first jury trials in Alexandria during the pandemic.  Our client was charged with malicious wounding (a serious felony that carries up to 20 years’ incarceration) and brandishing a firearm (a misdemeanor).  He had been incarcerated without trial since May 2019, partially due to the COVID-19 pandemic.[2]

The Facts of the Case

In short, the client was charged with stabbing a friend of his approximately 13 times during a crowded night-time street party, then pulling a firearm on the crowd before fleeing the scene of the crime.

Although the victim never saw his attacker, a number of other government witnesses identified the client as the attacker.  The government also relied on medical, DNA and cell phone evidence.

Our client admitted to being present but denied stabbing his friend.  He maintained that someone else stabbed the friend (he believed this person mistook the friend for someone who previously stated they were going to get a gun) and that he actually pulled the attacker off of the friend.

During the course of the altercation, our client suffered a knife would to the outside/top of his right pinkie which began bleeding profusely.  A blood trail led directly from the scene of the stabbing to our client’s front door about two blocks away.  He was immediately identified as a suspect.

Preparing for Trial

The trial began on November 16th, 2020 with jury selection.  25 potential jurors filed into the courtroom and sat in designated spots throughout the gallery area as well as in the jury box (always 6 feet apart).  At all times everyone wore masks.

The judge asked the jurors a number of preliminary questions followed by the prosecution and lastly, the defense.  After jurors were struck for various reasons, we were able to select 12 jurors plus two alternates for a total of 14 prior to the lunch break.  Both sides gave opening statements (again the attorneys wore their masks throughout) and we broke for lunch.

Following lunch, the government called a few of the people who were present the night of the stabbing, each of whom gave a different description of what happened.

Due to COVID-19 and social distancing requirements, the witnesses sat in the jury box, each time sitting in a different chair than the previous witness.  The traditional witness stand remained empty.  The witnesses wore their masks the entire time they testified, and we questioned them from the podium about 15-20 feet away.  At approximately 5pm we adjourned for the night.

Mistrial Due to COVID 19

The morning of the second day of trial, we arrived and began organizing our materials for that day’s anticipated witnesses.  While we waited, the judge arrived and inquired if the Sheriff’s deputy had informed us of something….  Puzzled, we told the judge he had not.

The judge then let us know that one of the jurors from the day before called in sick and was exhibiting symptoms consistent with COVID-19.

The juror had not yet been tested but felt too ill to return to court.  After brief discussion, all sides agreed that the judge would privately speak to the remaining jurors and let them know of the situation (remember, we had 2 alternates in case something like this happened – you need at least 12 jurors to render a verdict).

When the judge returned, he let us know that two additional jurors felt too uncomfortable/unsafe to continue, leaving us with only 11 jurors.

This meant the court had to declare a “mistrial” and schedule the retrial for a later date. Our client, still in jail, was devastated.  We subsequently scheduled the retrial for March 1st, 2021.  With no plea offer on the table (and our client maintaining his innocence), we packed up our things and got back to work.

The Retrial During COVID 19

On March 1st, 2021 we started again.  This time enough jurors were struck from the first group of 25 that we had to bring in a second group to question.

Picking a New Jury

The remaining jurors from the first group filed back out into the hallway, a cleaning crew came into the courtroom and wiped down the surfaces for about 15 minutes and then the second group of jurors came into the courtroom.

We asked this group the same questions and struck a number of them until we had enough jurors from which to select.  Needless to say, it took much longer this time around.

Calling Witnesses During COVID 19 Over Zoom and WebEx

After a lunch break, we were able to make opening statements and the government called a number of the same witnesses that had been called on the first day of trial in November.

This time not only did their testimony contradict one another but it also often contradicted their earlier testimony from the November trial.[3]  The second day of trial the government called many more witnesses including a few via Zoom or WebEx.

Although a bit awkward, the testimony of these witnesses who appeared virtually was conducted uneventfully thanks in large part to the tech wizards employed by the court.  The witnesses appeared on the government’s laptop at the podium (so all the witness saw was the lawyer questioning them) and was also streamed to a massive flat-screen TV in the courtroom for the jury to observe.

Our Client Takes the Stand During COVID 19 Jury Trial

On the third day of trial, the government rested their case, and it was our turn.  We called a few police witnesses who the government had not called because their testimony was favorable to our client.

Lastly, we called our client, a convicted felon.  Any attorney would tell you the decision to put your accused client on the stand is usually a tough one.

On the one hand, if he doesn’t testify, the jury cannot learn of his criminal history whatsoever.  On the other hand, if he doesn’t testify, he can’t tell the jury his story.  In this case, our client HAD to testify. On direct examination he immediately confronted his past criminal history and took responsibility for his past actions.

Then he described his upbringing and how he had progressed and grown as a contributing citizen since his release from incarceration.

Finally, he described what happened the night of the stabbing and explained that it was someone else who, he assumes, mistook the victim for someone with a gun and began stabbing him.  Our client, once he realized what had happened, attempted to break up the fight, grabbing the real attacker and pulling him off and accidentally punching the victim at the same time.

Our client was cut by the knife in the process and began bleeding at the scene (something the government took pains to bring out as showing our client was the attacker).

In total, our client testified for 3 hours including a very tough cross-examination by the prosecutor.  He was emotional but never exaggerated and remained consistent.  When he was done, it was about 6pm.  We adjourned for the night and planned closing arguments for the next morning.

Closing Arguments

On the fourth day of the trial, the government made their closing argument and demanded the jury find our client guilty of the crime of malicious wounding.

We made our argument, including a PowerPoint presentation highlighting the government’s witnesses’ major inconsistencies, the medical and scientific evidence that supported our client’s innocence, and lastly, our client’s testimony which is consistent with the scientific evidence and asked the jury to find our client not guilty.

As always, the government gets the last word (called rebuttal) and attempted to pick apart our argument.  Finally, the jury was left to deliberate.

Jury Deliberations During COVID 19 in Virginia

Normally, the jury would retire to a small jury room to sit around a conference table, review the evidence, discuss and deliberate.  However, due to COVID-19, this wasn’t possible.  So instead, the jury retired to an empty adjacent courtroom to deliberate.

No one else is allowed in and the jury was left there to review the evidence, discuss and deliberate.  They retired to deliberate around 11:30am.  My client waited in a holding cell while we returned to our office up the street, anxious for a call at any moment from the court.  We also had to prepare for the possibility that the verdict was guilty and prepare for sentencing.

The Verdict on Our COVID 19 Jury Trial in Alexandria, VA

The hours ticked by until it was about 4:30pm.  Knowing the jury would either make their decision in the next 30 minutes or the court would likely call us back in to announce that we would be retiring for the evening, we decided to walk down to the courthouse.

We picked up some coffee and waited on the first floor of the courtroom for any word.  At about 5:30pm we learned that we were to go to the courtroom, assuming this meant the jury had not yet arrived at a verdict.  To our surprise, we learned that the jury had a verdict.[4]  On the jury’s verdict sheet they had four options:

  1. Find the defendant guilty of felony malicious wounding (5-20 years incarceration);
  2. Find the defendant guilty of felony unlawful wounding (0-5 years incarceration);
  3. Find the defendant guilty of misdemeanor simple assault (0-12 months incarceration); or
  4. Find the defendant not guilty.

The jury filed in and the verdict form was handed to the judge.  The judge read the verdict: We the jury find the defendant guilty of misdemeanor assault.  This meant that the maximum sentence our client could receive was 12 months of incarceration and he had already served approximately 22 months waiting for trial – he would be a free man!

We had a private conference at the bench and agreed that the judge would declare a mistrial on the misdemeanor brandishing charge and that the government would not choose to re-try that.

What to Expect for Jury Trials During COVID 19 in Virginia

As a whole, the pandemic provided an additional hurdle to defending our client and ensuring that all of his rights were preserved.  Either consciously or subconsciously I’m sure the pandemic was always on the mind of the jurors; witnesses wore masks so we never saw about 60% of their faces as they testified; my client had to wear a mask as witnesses 30 feet away who hadn’t seen him in almost 2 years attempted to identify him for the record; and the plexi-glass partition made communication with my client during the trial even harder.

Closing Thoughts on Trying a Case During COVID 19

Despite this, we were able to successfully put the government’s evidence to the test and the jury was diligent in their 6+ deliberations before finally finding that the government had not proved our client guilty of malicious wounding beyond a reasonable doubt.  He may have had to wait an additional year in jail but finally our client is free!

[1] A revised plan was again approved on February 25th, 2021.

[2] The client had been previously represented by a different attorney and the case was initially continued from December 2019 to early 2020 but was then postponed again due to the pandemic.  We began representing the client in April 2020.

[3] One big advantage of the mistrial was our ability to obtain the transcripts of these witnesses’ testimony in the meantime.

[4] The jury was apparently deadlocked on the second misdemeanor charge of brandishing a firearm.

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